Verzar v Verzar

GLEESON JA: The applicant, Thomas John Verzar, seeks an order extending time for the filing of a summons for leave to appeal and the notice of appeal. Further, if an extension of time is granted, the applicant seeks an order that the hearing of the summons for leave to appeal and the appeal be heard at the same time as the hearing of the appeal in related proceedings number 2012/400251 filed in this court by the applicant on 27 February 2013.

The respondent to the application, Susan Verzar, is the executrix of the will of the late husband Stephen Verzar dated 14 June 2007, who died on 29 March 2009. Probate of that will was granted to the respondent on 21 October 2009. The applicant is the testator's son and a named beneficiary in the will.

The indulgence sought by the applicant in terms of an extension of time arises in the following circumstances.

On 15 March 2011, the applicant commenced proceedings below numbered 2011/88252 (the "administration proceedings"), against the respondent seeking orders that the grant of probate in favour of the respondent be revoked and a grant of letters of administration with the will annexed be made in favour of the plaintiff, or some other fit and proper person. The applicant also sought orders for an account to be taken of all moneys received and disbursed by the respondent in respect of the property comprised in the estate, and of the dealings and transactions of the respondent therewith from the date of death.

The essential issue raised in the administration proceedings concerned the manner in which the respondent had dealt with a property known as 84 McEvoy Street, Alexandria. This property was valued at $1 million (according to the affidavit filed in support of the grant of probate), and was a commercial property generating approximately $4,800 rent per month since the death of the testator. Under cl 3 of the will, the applicant was given the McEvoy Street property. The applicant's complaint was that the respondent had failed to administer the estate in a timely manner or at all and distribute the property to the applicant, and had also failed to account to the applicant for rents received on the McEvoy Street property.

By separate and subsequent proceedings numbered 2011/115485 commenced on 7 April 2011, Susan Verzar sought relief under the Succession Act 2006: first, an order under s 58(2) for an extension of the 12 month period, after the death of Stephen Verzar, within which an application for a family provision order must generally be made; and secondly, an order for a family provision order under s 59.

The two proceedings were listed for hearing before Lindsay J on 17 and 18 September 2012. Judgment was delivered on 16 November 2012 and orders were made on 30 November 2012. See Verzar v Verzar [2012] NSWSC 1380.

The orders made on 30 November 2012 dealt with both proceedings. In relation to the family provision proceedings, orders were made extending the time for the making of the application by Susan Verzar, and making further provision for her in the following terms: "2. Order that in addition to the provision received by Susan Verzar under the will of the late Stephen Verzar ('the deceased') dated 14 June 2007, Susan Verzar receive (or retain as the case may be) pursuant to s 59 of the Succession Act 2006: (a) a legacy of $100,000; and (b) income from the undistributed estate of the deceased (net of any expenses incurred in the accrual of that income), including the net rent generated by the property at 84 McEvoy Street, Alexandria up to and including 30 November 2012."

An order was made that the legacy of $100,000 be charged on the McEvoy Street property and be paid within six months. An order was made for the payment of Susan Verzar's costs by the defendant, Thomas Verzar. A further order was made that Thomas Verzar's liability for costs in the family provision proceedings would be set off against the liability of Susan Verzar to pay or bear Thomas Verzar's costs in the administration proceedings.

In the administration proceedings, Lindsay J made the following orders: "1. Order that the proceedings be dismissed. 2. Order that the defendant pay the plaintiff's costs (to be assessed on an indemnity basis) as agreed or assessed. 3. Order that the defendant's liability for costs in these proceedings be set off against the liability the plaintiff has to pay or bear her costs in the proceedings numbered 2011/1154845."

It may be observed that the respondent was successful in the family provision proceedings in obtaining further provision from the estate of her late husband, comprising a legacy of $100,000 together with income from the undistributed estate including the net rent on the McEvoy Street property up until 30 November 2012 (which net rent would otherwise have been payable to the applicant to whom the McEvoy Street property was given under the will, had order 2(b) not been made).

The applicant submits that the practical outcome of the two proceedings was that the respondent had successfully defended the relief sought by the applicant in the administration proceedings by making the successful family provision claim.

This is contested by the respondent, who submits that the application for an extension of time should be dismissed as the prospective appeal to which the application for leave to appeal relates is doomed to failure. This is said to follow because at the hearing before the primary judge, the applicant abandoned his claim to a revocation of the grant of probate at the commencement of the hearing (in the absence of knowing the result of the related family provision proceedings) and he should not be permitted to resile from that position.

In this regard, the respondent placed heavy emphasis on the following exchange which occurred at the beginning of the hearing on 17 September 2012 between the primary judge and counsel for the applicant, Mr Blackburn-Hart as follows: "HIS HONOUR: My concerns about the listing of two proceedings, one in Probate, the other in Equity, are pretty much assuaged, Mr Blackburn-Hart, because I take it from paragraph 10 of the document you have handed up, a draft outline of submissions dated 13 September, that no claim for relief in the statement of claim is pressed save for the question of costs? BLACKBURN-HART: That's correct. HIS HONOUR: I probably should make a formal notation about that. I wonder whether the best way forward is simply not to have a joint hearing but deal with costs at the end of the day. Is that something that is likely to lead to difficulties? BLACKBURN-HART: I don't believe so, no. ... HIS HONOUR: I will not make any formal order for the two sets of proceedings to be heard together ... . I will note that in proceedings numbered 2011/0008252 in light of the commencement of subsequent proceedings no claim for relief is pressed in those proceedings save for costs. In those circumstances I will stand over the costs application to the end of the hearing in proceedings numbered 2011/115485, and I take it there is no problem with that approach."

The reference by the primary judge in the above exchange with Counsel for the applicant to [10] of the draft outline of submissions on behalf of Thomas Verzar dated 13 September 2012, was a reference to the following: "10. As a result of the commencement of the second proceedings, the importance of the first proceeding has diminished, the only issue remaining being costs. This is because administration appears almost complete and the plaintiff has now accounted for the rents received from McEvoy Street."

The statement by counsel for the applicant that the respondent has now accounted for the rents received from the McEvoy Street property would appear to be a reference to the affidavit of Susan Verzar sworn 7 September 2012, which deposed to the income received and outgoings paid in respect of the McEvoy Street property for the period April 2009 to May 2012.

Notwithstanding these statements to the Court on behalf of the applicant, his counsel did cross-examine the respondent on the topic of rents received and expenses claimed to have been paid from rents on the McEvoy Street property. This included whether some of those expenses were properly referable to the McEvoy Street property.

At the commencement of closing submissions on 18 September 2012, counsel for the applicant sought to tender some correspondence in relation to the question of costs in the administration proceedings. The following exchange then ensued between the primary judge and counsel for the parties: "HIS HONOUR: Well, we embarked on this hearing as a separate hearing of the FPA proceedings. BLACKBURN-HART: We did. HIS HONOUR: And probably the purest approach would be to remember that's how we started and perhaps how we should finish. BLACKBURN-HART: If your Honour pleases. HIS HONOUR: If there were some agreement between you that I should receive the material, that would be one thing, but if there is no agreement then I'll deal with the two topics discretely. BLACKBURN-HART: I only tender it on that basis, your Honour. HIS HONOUR: On what basis?. BLACKBURN-HART: On the basis of the costs of the probate material. WILSON: I won't object to it at the appropriate time, your Honour. HIS HONOUR: Well, let's keep the two sets of proceedings discrete for the moment. Mr Wilson?"

Later during closing submissions, the primary judge raised with counsel for the parties the question of what was likely to happen in relation to the costs of the family provision proceedings. His Honour suggested in this regard the Court might want to know about the administration proceedings. Counsel for the applicant responded: "I am sorry, I don't understand the question, your Honour. We are only seeking costs in relation to that. We are not seeking any formal orders."

The accounting issue in relation to the McEvoy Street property was the subject of an exchange between the primary judge and counsel for the parties during closing submissions on 18 September 2012. The primary judge inquired of the parties as to what would be the position if no relief was granted to the respondent in the family provision proceedings.

Counsel for the respondent responded: "If no relief were granted to her, the normal course, according to conventional principle, is that, as the executor of the estate, she's required to account for the takings and disbursements in the administration."

The primary judge referred to s 84 of the Wills Probate Administration Act 1898 (now renamed the Probate and Administration Act 1898) as having possible application, and counsel for the respondent replied: "It's still there. It would need to be put back into the estate."

This was clearly a reference to the net rents on the McEvoy Street property.

The primary judge then observed that it was only in relation to rent moneys that there was a difference between the parties. Counsel for the applicant confirmed that in terms of the estate assets that was correct. He then referred to the fact that there may be adjustments to the expenses deducted from the rents, which was the subject of affidavit evidence of Susan Verzar and some cross-examination, and said: "... and by 'adjustments' I mean deductions, as to whether or not all of those deductions ought to have been made. That is not a big issue, though".

The primary judge invited counsel for the applicant to provide a note about any possible adjustments, that is, whether any of the deductions made by the respondent in respect of the rents received by her as executrix ought to have been made. Both parties subsequently provided notes by way of written closing submissions after the primary judge reserved his decision on 18 September 2012. However, the applicant did not make any submissions in relation to the topic of "adjustments" in relation to the calculation of the net rents on the McEvoy Street property received by the respondent.

In the applicant's written note dated 24 September 2012, a submission was made in [4] that the estate assets should be taken to include, amongst other things: "(a) net rents on McEvoy Street received by the plaintiff from 30 April 2009 to 9 December 2010 (due to defendant) - $48,247.71; (b) rental moneys from McEvoy Street in estate bank account from January 2011 (plus rent for June to date) (due to defendant) - $55,196.67."

The applicant's submission in [4] was preceded by an explanation in [2(b)] and [2(c)] of the way in which these figures were calculated. First, [2(b)] contained a calculation of the net rents in the period April 2009 to December 2010, and it was submitted that "... it is apparent that the net income was retained by the plaintiff for her own purposes and she should account for it".

Secondly, [2(c)] contained a calculation the net rents from the McEvoy Street property in the period January 2011 to date (being September 2011), which were held in an estate bank account and a reward saver account for the period up to May 2012 and totalled $55,196.67, and submitted that further rental income was receivable by the estate and due to the applicant for the months of June 2012 to date, which at that time was a period of 4 months.

In [5] of the applicant's closing note the following submission was made: "It also appears to be common ground that rental income (and expenses) follow each property, once administration has been completed."

The respondent's written submissions in reply dated 25 September 2012 addressed the issue of the size of the estate, but did not specifically reply to the applicant's submissions in [2(b)], [2(c)] and [4] relating to the net rents on the McEvoy Street property.

At the commencement of his reasons, the primary judge identified that the estate assets comprised: (a) the McEvoy Street property, which was the subject of a specific devise in favour of Thomas Verzar, (b) the McCauley Street property which passed to Susan Verzar as part of the residuary estate, and (c) the undisputed remaining assets in the estate, comprising two bank accounts with a total credit balance slightly over $55,000. The primary judge then observed: "11 An allowance should be made for rent received by the Plaintiff on the two Alexandria properties since Stephen's death. The precise amount of that rent has not been established by the evidence. 12 However, it is agreed that, subject to any orders made in her favour in these proceedings, the Plaintiff is obliged, as Stephen's executrix, to account to the Defendant for rents received on the McEvoy Street property since Stephen's death. It is also agreed that more than $100,000.00 has been received in net rents for the McEvoy Street property in that period. $48,000.00 was received, in net rents on that property, between the date of Stephen's death (29 March 2009) and December 2010. Another $55,000.00 or so has been received since January 2011. 13. The credit balance of slightly over $55,000.00 in estate bank accounts represents, in substance at least, part of the rents received on the McEvoy Street property since Stephen's death. ... 15 The Defendant accepts that the Plaintiff is entitled to the McCauley Street property under Stephen's Will and, despite the fact that it appears not yet to have been transmitted to her in her personal capacity, he does not seek in these proceedings to disturb her enjoyment of it. Not unnaturally, though, he does want her to account for income received by her on the McEvoy Street property, some part of which she appears to have applied towards repairs to, or improvement of, the McCauley Street property since Stephen's death."

Having considered and concluded that it was appropriate to grant an extension of time to Susan Verzar under s 58(2) of the Succession Act sufficient to permit her claim for relief under s 59 to be determined on its merits, the primary judge then considered and concluded that adequate provision for the proper maintenance, education and advancement in life of Susan Verzar had not been made by Stephen Verzar's will.

The primary judge next considered whether any, and if so what, relief should be granted to Susan Verzar. The trial judge considered the competing entitlements of Susan Verzar and Thomas Verzar in the context of their respective financial resources and the property comprising the estate and observed: "172 In weighing the competing entitlements of the Plaintiff and the Defendant, in the context of their respective financial resources and the property comprising Stephen's estate, in my assessment the proper course, at this time is: first, to recognise that since Stephen's death the Plaintiff has had the benefit of estate property (namely, the McEvoy Street property and accrued rents net of expenses) which, under the terms of Stephen's Will, should have been transferred to the Defendant but which has been deployed by her as an aid to improving other property (particularly the McCauley Street property) which she owns or to which she is entitled under the Will, as part of a process of adjustment of her affairs to life without Stephen; and, secondly, to take that benefit into account in quantification of a modest legacy to be granted to her in addition to the benefits to which she is otherwise entitled under the Will. 173 In the absence of a full, detailed accounting by the Plaintiff of all her dealings with estate assets since the death of Stephen, and bearing in mind that it is in the interests of both parties to make orders designed to bring their financial relationship and their related involvement in these proceedings to an end, I propose to proceed on the basis that an order should be made entitling the Plaintiff to the benefit of the income of Stephen's undistributed estate up until the time that final orders are made in these proceedings (net of any expenses incurred in the accrual of that income) as the foundation for a further legacy in the form of a lump sum amount of $100,000.00 to be charged against the McEvoy Street property. On the evidence as to receipt of rents from the McEvoy Street property, that represents a total of not less than $200,000.00 or thereabouts of provision to be made for the Plaintiff additional to that made for her in Stephen's Will."

The applicant seeks an order extending the time for the filing and service of a summons seeking leave to appeal and the notice of appeal. The power to make the order sought is provided by UCPR r 51.10(2) which permits the Court, in a case within UCPR r 51.10(1)(b), to extend the time for filing the summons seeking leave to appeal "at any time".

Insofar as the applicant also seeks an order extending the time for the filing of a notice of appeal (which has not yet been filed), the power to make the order sought is provided by UCPR r 51.16(2) which permits the Court, in a case falling within UCPR r 51.16(1)(c), to extend the time for the filing of the notice of appeal "at any time".

The summons seeking leave to appeal identifies "s 101(r)" of the Supreme Court Act 1970 as the reason leave is required. This is clearly a typographical error and should be read as a reference to s 101(2)(r) of the Supreme Court Act. Under that provision, an appeal shall not lie to the Court of Appeal, except by leave of the Court of Appeal, from a final judgment or order in proceedings of the Court, other than an appeal that involves a matter at issue amounting to or of the value of $100,000 or more, or that involves (directly or indirectly) any claim, demand or question to or in respect to any property or civil right amounting to or of the value of $100,000 or more.

The affidavit of John Denes sworn 7 March 2013 in support of the application deposes that the prospective appeal involves a matter at issue of more than $100,000. This is on the basis that the gross rents on the McEvoy Street property relevantly totalled $151,360. Moreover, it was common ground in the proceedings below that the net rents on the McEvoy Street property were at least slightly in excess of $100,000. The respondent did not submit that the amount in issue was less than $100,000. In these circumstances, leave to appeal is not required for that reason, and it is appropriate to do deal with the application as one seeking an extension of time for the filing of a notice of appeal.

The matters to be taken into account in considering whether it is appropriate to grant an extension of time to file a notice of appeal are well settled. The four factors of general relevance to such an application are the length of the delay, the reason for the delay, whether the applicant has a fairly arguable case and the extent of any prejudice suffered by the respondent to the application (see Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 at [55]; Nanschild v Pratt [2011] NSWCA 85 at [39]-[42]).

In Nanschild v Pratt, McColl JA explained the context of the Court's approach to an application to extend time for the filing of an appeal as follows: "38 The discretion to extend time is given for the sole purpose of enabling the court to do justice between the parties. This means that the discretion can only be exercised upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458 (at 459) per McHugh J. 39 The underlying premise to these propositions in Gallo (as is made apparent in Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 (at [7]) per Brennan CJ and McHugh J) is that the Court's approach to an application to extend the time for filing an appeal from a judgment determining substantive rights (or here to seek leave to appeal) "at any time" recognises that "the respondent to the application has a vested right to retain the judgment" proposed to be the subject of appeal: Jackamarra v Krakouer (at [4]); Tomko v Palasty (No 2) [2007] NSWCA 369 (at [55]) per Basten JA (Hodgson and Ipp JJA agreeing)."

Four issues arise on the present application for an extension of time. First, the length of the delay. Secondly, whether the applicant has provided a sufficient explanation for the delay.

Thirdly, whether, as contended by the respondent, any appeal, if permitted, would be doomed to failure because the applicant should not be permitted to resile from the position it took at the hearing before the primary judge in not pressing its claims in the administration proceedings, other than an order for costs.

Fourthly, the extent of any prejudice suffered by the respondent.

The relevant orders of Lindsay J were made and entered on 30 November 2012. Any notice of appeal was required to be filed and served within 28 days after that date. The applicant's solicitor attempted to file the summons seeking leave to appeal on 7 March 2013, but the document was rejected by the Registry until a notice of motion was filed in the proceedings. Subsequently, the notice of motion seeking an extension of time together with the summons seeking leave to appeal was filed on 20 March 2013.

The delay of about 11 weeks is not inordinate taking into account the period covered by the Christmas vacation and the unsuccessful attempt to file the documents on 7 March 2013.

The applicant's explanation for the delay in filing the summons for leave to appeal and the appeal was contained in two affidavits of his solicitor, John Denes sworn 7 March and 5 April 2013 respectively. It is sufficient to note that the applicant's solicitor initially proceeded upon the belief that only one appeal was required in respect of all the orders that were made by the primary judge on 30 November 2011, and accordingly a notice of intention to appeal was filed on 27 December 2012 in respect of the family provision proceedings. It was not until 27 February 2013 that the applicant's solicitor was advised by new counsel who had been briefed to prepare the notice of appeal in the family provision proceedings, that a separate appeal may have to be brought in respect of the administration proceedings.

Prior to this time, the applicant's solicitor believed that if the applicant was successful in the appeal in the family provision proceedings and the orders for provision in favour of the respondent were set aside, then the prayer for relief in the administration proceedings seeking an accounting by the respondent of her dealings with the estate's property would then be on foot without a further appeal.

In his second affidavit of 5 April 2013, Mr Denes explained the reasons for the delay between 27 February 2013, when he was first apprised by new counsel briefed in the matter that an appeal may be necessary in respect of the administration proceedings, and the obtaining of instructions to pursue such a course, the time taken to draft the necessary documents and the difficulties experienced in relation to filing of those documents in the registry, which ultimately occurred on 20 March 2013.

The respondent did not take any issue with the applicant's explanation for the delay, which was the result of a misunderstanding by the applicant's legal advisers as to whether a separate appeal was necessary in relation to the administration proceedings. I am satisfied that a sufficient explanation for the delay has been provided.

The respondent does not claim to have suffered any prejudice as a result of the delay in the filing and service of the summons seeking leave to appeal and any notice of appeal.

The applicant submits that notwithstanding the position stated to the Court below by the applicant's then counsel, the relief sought in the amended statement of claim in the administration proceedings was not abandoned, at least insofar as the applicant sought an accounting by the respondent. Additionally, the applicant submits that in view of the admissions by the respondent in her defence of failure to account, there was no issue "to be pressed"; that the accounting issue was always in contest during the hearing; and that the orders made by the primary judge in the administration proceedings simply reflect the way in which the primary judge determined to make further provision out of the estate in favour of the respondent.

In support of the contention that the applicant did not abandon the accounting issue in the administration proceedings, the applicant points to the cross-examination of the respondent on the topic of the net rents on the McEvoy Street property. The applicant also points to the exchange between the primary judge and counsel for the parties during closing submissions, concerning what would be the position if no relief was granted to the respondent in the family provision proceedings. To that may be added, the references in the applicant's closing written submissions to the net rents on the McEvoy Street property.

The applicant's submission that he never abandoned prayer 2 of the relief sought in the administration proceedings (which sought an account in respect of the property comprised in the estate and all dealings and transactions of the respondent therewith) is not borne out by an examination of the applicant's conduct below, as revealed by the transcript and the parties' respective submissions.

First, it is clear that the applicant's then counsel informed the Court on three occasions, namely: (a) in written opening submissions, (b) during the exchange with the primary judge at the commencement of the hearing, and (c) during closing submissions, that the applicant abandoned all claims for relief in the administration proceedings other than the claim for costs.

Secondly, the context in which the accounting issue was raised in cross-examination of the respondent was the identification of the size of the distributable estate in respect of which the respondent's claim for further provision was to be considered.

Thirdly, the exchange between the primary judge and counsel for the parties concerning what would happen to the net rents on the McEvoy Street property if the respondent was unsuccessful in the family provision proceedings, did not prompt the applicant to change his position and either seek to pursue prayer 2 of the relief in the administration proceedings. Nor did it prompt him to otherwise seek an amendment in those proceedings to claim a specific order in relation to payment of the net rents on the McEvoy Street property.

However, in light of the applicant's subsequent closing submission dated 24 September 2012, the course taken by the applicant's then counsel is not surprising. As noted above at [29], the applicant took the position below that if the respondent was unsuccessful in the family provision proceedings, the net rents on the McEvoy Street property would follow the property, once the administration had been completed. This was an express acknowledgement by the applicant that, having abandoned the claims for relief in the administration proceedings save for costs, the applicant could not call upon the executrix to pay over the net rents on the McEvoy Street property until the administration of the estate had been completed. There is no suggestion that the administration of the estate was complete, at the time of the hearing before the primary judge.

It may be observed that the position taken by the applicant below was consistent with authority concerning the entitlement to income after the date of death on property the subject of a specific legacy or devise under a will. Income arising after the date of death on property which is left as an unconditional and immediate gift by a specific legacy or devise goes to the specific legatee or devisee (see O'Brien v McCormick [2005] NSWSC 619 at [38] per Campbell J, where the relevant authorities are collected).

Fourthly, contrary to the applicant's written submissions the primary judge did not deliver a common judgment in both proceedings below. As a matter of both form and substance the judgment delivered on 16 November 2012 only related to the family provision proceedings. This is apparent from the cover sheet of the judgment where the file number of the proceedings only refers to "2011/115485", being the file number for the family provision proceedings.

Further, as a matter of substance, the primary judge expressly refused to make any formal order that the two proceedings be heard together, rather he stood the administration proceedings over to the end of the hearing of the family provision proceedings at which time the costs application in the administration proceedings would be considered. Moreover, as noted above, during closing submissions on 18 September 2012, the primary judge again emphasised that the hearing was limited to a separate hearing of the family provision proceedings and counsel for the applicant agreed.

Fifthly, the grounds of appeal which the applicant seeks to rely upon in its draft notice of appeal do not disclose any error which would entitle the applicant to the relief it seeks on appeal. That relief being setting aside the order dismissing the proceedings and that the proceedings be remitted back to the Court below to deal with the outstanding prayers for relief in the amended statement of claim. Counsel for the applicant identified that the applicant was seeking the relief in prayers 2, 3 and 4 (that an account be taken of all moneys received and disbursements by the respondent, that there be liberty to apply to the Registrar, and for interest).

In oral submissions, counsel for the applicant frankly conceded that no criticism could be made "at the moment" of the order of Lindsay J dismissing the administration proceedings. Rather, it was only if the applicant succeeds in his appeal in the family provision proceedings that complaint is made, because then the applicant would be left "high and dry" as no relief had been obtained in the administration proceedings.

The difficulty with the applicant's draft notice of appeal is that the order which it seeks to set aside (order 1 dismissing the proceedings), is an order which the applicant effectively agreed to on 17 September 2012 in advance of the outcome of the family provision proceedings being known. Further, at no time during the conduct of the family provision proceedings did the applicant seek to resile from this position.

A party is bound by the conduct of his or her case. Except in the most exceptional circumstances, a party should not be allowed after a case has been decided against him or her, to raise a new argument which, whether deliberately or by inadvertence, he or she failed to put during the hearing when he or she had an opportunity to do so (see Metwally v University of Wollongong [1985] HCA 28; (1985) 60 ALR 68 at 71). The applicant did not suggest that any exceptional circumstances existed in the present case.

Sixthly, having regard to the above matters, the grounds of appeal in the draft notice of appeal cannot be said to be fairly arguable. In particular:

During the course of argument on the motion, the Court inquired of Counsel for the respondent as to what would be the position if the applicant was denied an extension of time to file a summons for leave to appeal and a notice of appeal in respect of the administration proceedings, but was ultimately successful on the appeal in respect of the family provision proceedings.

Counsel for the respondent stated that in those circumstances the respondent, as executrix of the estate, would be obliged to account to the estate in relation to the rents on the McEvoy Street property and that this income would pass pursuant to the terms of the will with the property, which was given to the applicant. That is undoubtedly correct. It is also consistent with the agreed position of the parties in the family provision proceedings, as noted by the primary judge (at [12]).

Refusal of an extension of time for the filing and service of the summons for leave to appeal (which is unnecessary) and the notice of appeal will not affect the applicant's rights against the respondent to receive the net rents on the McEvoy Street property since the date of death, should the applicant be successful on the appeal in respect of the family provision proceedings (see O'Brien v McCormick at [38]). In such event, if the parties could not agree on that amount, then the applicant could seek an account from the respondent as executrix of the estate of the income and expenses on the McEvoy Street property since the date of death to November 2012.

No issue estoppel arises from the family provision proceedings, because there was no finding by the primary judge concerning the amount of net rents on the McEvoy Street property since the date of death (see the observations of the primary judge at [11]). It was simply common ground between the parties that the net rents on the McEvoy Street property were in excess of $100,000. The precise amount of net rents covering the period from the date of death to the date of the hearing (September 2012) was never agreed by the parties or quantified by the primary judge.

In the circumstances, the extension of time should be refused because leave to appeal is not required under s 101(2)(r) of the Supreme Court Act, and the notice of appeal is not fairly arguable. Indeed, the notice of appeal is without merit. The applicant's notice of motion filed 20 March 2013 should be dismissed with costs.