Borgese v Cater & Blumer Pty Ltd t/as Cater & Blumer

Mr Borgese's claim

1. The plaintiff's current pleading is contained in his amended statement of claim filed 25 March 2015. It commences with the allegation that his parents executed mutual wills in the presence of Mr Maguire on 21 June 1976. Although not specifically pleaded, it appears that these wills were prepared by Mr Maguire as well.
2. The plaintiff alleges further that following his mother's death on 21 February 1978, his father received the whole of her real and personal estate "absolutely". However, at paragraph 7 of the amended statement of claim, the plaintiff also alleges that "pursuant to the mutual wills of [his parents]", his father held, presumably following the death of his mother, Farm 1143 and all farming plant and machinery on trust for him. At paragraph 14 of the amended statement of claim the plaintiff alleges that on 18 February 1999, his father revoked his earlier wills and made another will "whereby the plaintiff's entitlement was adversely affected". The plaintiff's father signed a codicil to that will on 25 August 1999.
3. The plaintiff's claim is pleaded in negligence. Particulars of this negligence are as follows: "PARTICULARS OF NEGLIGENCE AGAINST THE DEFENDANTS 1. Failing to advise the plaintiff that the plaintiff's parents made mutual wills on 21 June 1976. 2. Failing to provide the plaintiff with a copy of the Will of the late Carmela Borgese. 3. Failing to provide the plaintiff with a copy of the Will of the late Giuseppe Borgese. 4. Failing to advise the plaintiff that pursuant to the Mutual Wills of his parents dated 21 June 1976 he would received [sic] farm known as Irrigation Farm Purchase 1143 and all farming plant and machinery. 5. Failing to advise the late Giuseppe Borgese that after his wife's death on 21 February 1978 that he held on trust for the plaintiff the farm known as Irrigation Farm Purchase 1143 and all farming plant and machinery pursuant to the Mutual Wills of the plaintiff's parents dated 21 June 1976. 6. Failing to advise the late Giuseppe Borgese that after this [sic] wife's death on 21 February 1978 that he held on trust for his five (5) daughters the farm known a [sic] Non Irrigable Purchase 188 pursuant to the Mutual Wills of the plaintiff's parents dated 1976. 7. Failing to advise the plaintiff that pursuant to the Mutual Wills of his parents dated 21 June 1976 the plaintiff had the right to purchase any of the assets of their estate not being part of their personal possessions at the probate valuation thereof for cash payable in full by the first anniversary of his mother's death and his father's death subject to the plaintiff giving notice of his exercise of option to make any such purchase to his co-Trustee within six (6) months after his mother's death and within six (6) months after his father's death. 8. Failing to advise the late Giuseppe Borgese that he could not sell farm known as Non Irrigable purchase No. 118 Yanco No. 1 Irrigation Area to Francis Rupert Smith and Margaret Edith Smith. 9. Allowing the late Giuseppe Borgese to sell farm known as Non Irrigable Purchase No. 118 Yanco No. 1 Irrigation Area to Francis Rupert Smith and Margaret Edith to the detriment of the plaintiff. 10. Failing to advise Ms Benilda Papasidero that after the death of her mother the late Carmela Borgese, that her parents had signed Mutual Wills on 21 June 1976 and that Mr Giuseppe Borgese could no longer revoke his Will dated 21 June 1976 as he held on trust for the beneficiaries as follows: (i) The farm known as Irrigation Farm Purchase 1143 for the plaintiff; (ii) Non-Irrigable Purchase 118 for his daughters subject to the right of the plaintiff to purchase any of the assets of the Estate. 11. Failing to cease to act for the Estate of the late Giuseppe Borgese after the plaintiff commenced proceedings in the Supreme Court of New South Wales in Matter No. 383 of 2004 as the second defendant had a conflict of interest having acted for the plaintiff's deceased father Giuseppe Borgese, the plaintiff's deceased mother Carmela Borgese and the plaintiff in the preparation of a Partnership Agreement and subsequent partnership Agreements and disputes involving the plaintiff's father and the plaintiff's wife and the plaintiff's father and the plaintiff in Family Law proceedings against the plaintiff's wife Maria Leonarda Borgese. 12. Failing to advise the executrix of the Estate of the late Giuseppe Borgese, the plaintiff's sister Benilda Papasidero that she could not transfer property situated and known as Lots 149 and 374 in Deposited Plan 751694 at Yanco, Local Government Area Leeton to her sister Luciano Borgese in contravention of the Orders of His Honour Mr Justice Young dated 2 May 2006. 13. Failing to advise the plaintiff that if Benilda Papasidero proceeded with either sale he had the right to estop such sale or sales. 14. Failing to ensure that property situated and known as Lots 149 and 374 in Deposited Plan 751694 at Yanco, Local Government Area Leeton was sold to a purchaser not related to the Borgese family at proper market value and not at Probate valuation. 15. Failing to list as an asset of the Estate of the late Giuseppe Borgese in the Application for Probate of Giuseppe Borgese, one hundred and forty-four (144) shares of Class A and the corresponding Members Base Allocation in Murrumbidgee Irrigation Limited (ACN 084 943 037) a company incorporated in New South Wales. These shares related to the transfer of 144 megalitres of water from Murrumbidgee Irrigation and were the property of Benilda Papasidero as executrix of the Estate of the late Giuseppe Borgese. These shares were classified as Class A 3 (high security) and were valued at $1,500.00 per megalitre for each share. The total value of the shares was $216,000.00. The sale of these shares has not been accounted for in the Estate of the late Giuseppe Borgese. 16. Failing to account for the sale of one hundred and forty four shares of Class A and the corresponding Members Base Allocation in Murrumbidgee Irrigation Limited (ACN 084 943 037) a company incorporated in New South Wales. These shares related to the transfer of 144 megalitres of water from Murrumbidgee Irrigation and were the property of Benilda Papasidero as executrix of the Estate of the late Giuseppe Borgese. These shares were classified as Class A 3 (high security) and were valued at $1,500.00 per megalitre for each share. The total value of the shares was $216,000.00 and their subsequent sale has wrongfully not been accounted for in the Estate of the late Giuseppe Borgese."
4. The plaintiff alleges, in somewhat general and unparticularised ways, that due to the negligence of the defendant he moved from Leeton to Melbourne and suffered a mental breakdown. He has not worked since 2002 and claims damages for pain and suffering and the loss of income from not being able to manage and run Farm 1143 and Farm 118. Despite the terms of the allegations of negligence, no other relief is claimed.

The defendant's response to the plaintiff's claim

1. By its defence to the amended statement of claim filed on 14 January 2014, the defendant denied that it was negligent. It denies that it owed a duty of care to the plaintiff to take the action or to provide the advice alleged by the plaintiff. Indeed, the defendant denies that, at the latest following the commencement of the plaintiff's proceedings on 7 May 2005 against Ms Papasidero as the executrix of the estate of the plaintiff's father, it had any duty to advise the plaintiff. The defendant denies that it had any duty to advise the plaintiff following Young CJ in Eq's decision on 2 May 2006, and confirms that, until set aside, the orders made by his Honour in those proceedings continue to determine the plaintiff's entitlements concerning the estate of his father. The defendant also denies that it caused the plaintiff to suffer any loss.
2. The defendant also says that any cause of action pleaded by the plaintiff against it is barred by operation of s 14 and s 63 of the Limitation Act 1969. That contention is particularised at paragraph 39 of the defence in the following alternative ways: 1. On the plaintiff's case, any cause of action was barred and extinguished by 5 December 1987, being six years after the date when Giuseppe Borgese sold Farm 118, thus preventing the plaintiff from buying it at the probate valuation on his father's death in accordance with his father's will executed in 1976; 2. Alternatively, any cause of action was barred and extinguished by 1 February 2005, being six years after the deterioration of the plaintiff's relationship with his father in January 1999, the termination of the partnership between the plaintiff, his wife and his father and the resultant loss of income by the plaintiff from the partnership, including that he could no longer work on Farm 1143; 3. Alternatively, any cause of action was barred and extinguished by 7 June 2009, being six years after the death of the plaintiff's father when the plaintiff was prevented from purchasing Farm 118 at the probate valuation in accordance with his father's will executed in 1976 and earning money from farming on it following its sale in 1981.
3. The defendant also responded to the plaintiff's claim by emphasising that in May 2006 the plaintiff elected to commence and to prosecute the Family Provision Act proceedings, as opposed to proceedings based upon his alleged rights under the 1976 wills of his parents, in circumstances where he believed those wills were mutual wills so that he should in such circumstances be bound by his election to affirm the validity of the last will of his father.
4. It is arguably not without some significance, at least in the context of the present application, that the plaintiff has chosen not to reply to the current defence.

Comment

1. I pause to note the following matters that are still unclear to me.
2. First, the so-called mutual wills executed by the plaintiff's parents, and his father's later will and codicil, are in evidence before me as exhibits to the plaintiff's affidavit. The true meaning and effect of the provisions of these wills are therefore capable of testing for present purposes at a preliminary stage at least. However, the evidence touching the circumstances of their execution is somewhat scant so that a proper understanding of the plaintiff's claims with respect to the so-called mutual wills is correspondingly hampered.
3. Secondly, I am unable to assess whether or not the plaintiff was, or would have been, in a position to purchase the property that he asserts he was given an option to purchase at valuation, assuming that he contends that the relevant terms of the wills had not been brought to his attention in a timely way. That issue would appear potentially to be relevant to the quantification of the plaintiff's losses, although a claim asserting such a loss in terms is difficult to discern in the amended statement of claim. His father's will is the only relevant instrument in this respect having regard to the order of his parents' deaths.
4. Thirdly, even with the assistance of the wills concerned, I am unable to determine how it is alleged that either of the plaintiff's parents was constrained in any way from selling or disposing of any of their property during their respective lifetimes. The wills do not have that effect. It seems to have been assumed, contrary to the usual understanding of mutual wills agreements, that the plaintiff's parents were restricted in their ability to sell Farm 1143 to a third party if they, or either of them, chose to do so. The "mutual wills" apparently favouring the plaintiff in some legally enforceable way, so that he received Farm 1143 or its sale price, would only have that effect at the very least if the surviving parent retained the property or its equivalent at the date of his or her death.
5. Fourthly, the plaintiff would appear clearly to have approbated the validity of his father's last will to the extent that he sought an order for provision out of his father's estate under the Family Provision Act. It is not clear to me how the plaintiff can now maintain his present "mutual wills complaint" against the defendant, alleging that it somehow caused him loss in one or other of the ways particularised in the amended statement of claim, when he has already claimed and received benefits under the will he says should never have been made, in the sense that it wrongfully derogated from rights he was otherwise entitled to enforce. The plaintiff did not in those proceedings seek to propound his asserted entitlements under the so-called mutual wills against the executrix who stood possessed of the estate assets in her representative capacity but in effect he seeks to do so now. This is adverted to in the defendant's defence.
6. Fifthly, the defendant has also raised the issue of the Limitation Act 1969 as a defence to the current proceedings. It is also not clear to me why the present cause of action did not accrue well in excess of six years prior to the commencement of these proceedings. It is unlikely to be a coincidence that these proceedings were instituted one day shy of six years following Young CJ in Eq's decision in the Family Provision Act proceedings commenced by the plaintiff. However, that coincidence appears on one view to bespeak a level of confusion about the relationship between his Honour's orders in particular or those proceedings generally on the one hand and the plaintiff's accrual of his cause of action in the present proceedings on the other hand. For example, the original statement of claim filed on 1 May 2012 [not 17 May 2012 as indicated in the chronology provided to me], contains the following handwritten endorsement signed by Mr Margiotta and dated 1 May 2012: "I, Anthony Steven Margiotta solicitor, hereby undertake to file plaintiff's affidavit verifying by 2 May 2012 as the last day for filing this statement of claim is today."
7. Sixthly, the amended statement of claim does not particularise the loss and damage alleged to have been caused by the defendant's negligence other than in general terms. It is conceivable that a better understanding of the claimed losses might clarify the bases upon which the losses are said to arise. These are not entirely apparent to me at the present time.

The present application

1. By its notice of motion filed on 3 June 2016, the defendant seeks an order that the proceedings be dismissed for want of due despatch pursuant to UCPR 12.7(1). The application is supported by two affidavits from Catherine Osborne sworn 3 June 2016 and 30 August 2016. These affidavits were read without objection. Ms Osborne was not cross-examined.
2. The defendant contends that there have been significant delays in the prosecution of the plaintiff's claim. It is necessary to review the procedural history in some detail in order to understand that allegation.
3. The defendant's current solicitor became involved in these proceedings in early 2014. On 3 February 2014, she served a notice of change of solicitor on Mr Margiotta. She did not hear from him. On 3 June 2014, she wrote to Mr Margiotta requesting that he relist the proceedings in order to obtain a new timetable for the progress of the matter. That letter also warned that the defendant would seek instructions to take steps to dismiss the proceedings for want of due despatch if Mr Margiotta did not respond.
4. Mr Margiotta wrote to the Court on 27 June 2014 requesting that the matter be relisted for directions. That occurred on 6 August 2014. Thereafter, between 28 October 2014 and 16 March 2015, the defendant's solicitor sent no less than five more letters warning Mr Margiotta that the defendant would seek immediate instructions to dismiss the proceedings should further timetable breaches occur.
5. The proceedings were relisted for directions at the defendant's request on 24 March 2015. After an informal but unsuccessful settlement conference on 29 July 2015, the proceedings were adjourned by consent to 19 August 2015 for directions. The matter was in fact called up for review by Garling J on 25 August 2015. His Honour relevantly made the following orders at that time: 1. On or before 4.00pm on 30 October 2015 the plaintiff is to serve: 1. All statements of non-expert evidence under UCPR 31.4; 2. All experts' reports from experts on whose opinions the plaintiff wished to rely under UCPR 31.7. 1. Grant leave to the plaintiff to file and serve a notice of motion seeking leave to administer interrogatories by 4.00pm on 16 September 2015. 2. On or before 4.00pm on 5 February 2016 the defendant is to serve: 1. All statements of non-expert evidence under UCPR 31.4; 2. All experts' reports from experts on whose opinions the defendant wished to rely under UCPR 31.7. 1. The directions hearing on 17 September 2015 is vacated. 2. The matter is listed for directions on 11 February 2016 to discuss issues including the length of the hearing, the issues in the case and further pre-trial directions required.
6. The plaintiff breached the timetable ordered by Garling J. He neither filed nor served a notice of motion seeking interrogatories and did not serve any lay or expert evidence. Thereafter between 6 October 2015 and 17 November 2015, the parties exchanged correspondence. That correspondence dealt in part with the plaintiff's timetable defaults.
7. By letter dated 6 November 2015, Mr Margiotta indicated that he required "an extension of time to serve lay and expert evidence … and to file a notice of motion seeking interrogatories." He advised that he would "take steps to have the matter listed for further directions before the Registrar on … 18 November 2015." On the same day the defendant replied in the following terms: "Do you intend to have the matter listed for further directions before the Registrar on 18 November 2015? As you know, this matter was last before Garling J due to the ongoing breaches of the Court's timetables. In light of the reasons for the judicial call up and the fact that your client has, again, breached the timetable, we consider it is more appropriate that the matter be relisted before Garling J for further case management."
8. On 17 November 2015, the defendant wrote to Mr Margiotta asking to be told "as a matter of urgency" whether the proceedings had been re-listed before Garling J. Mr Margiotta relisted the matter before Garling J on 4 December 2015 but in his Honour's absence the matter came before the Registrar on that day instead. On 25 November 2015, the defendant wrote to Mr Margiotta putting him on notice that the defendant intended to seek to have the proceedings dismissed if the plaintiff was in breach of the next Court timetable.
9. Registrar Bradford referred the matter to Adamson J on 4 December 2015 and her Honour made the following orders: 1. Vacate the orders made by Garling J on 25 August 2015. 2. Subject to order (4) below, extend the time for the plaintiff to serve the following documents to on or before 4.00pm on 15 February 2016; 1. All statements of non-expert witnesses upon whose evidence the plaintiff wishes to rely in accordance with UCPR 31.4; 2. All experts reports upon whose evidence the plaintiff wishes to rely in accordance with UCPR 31.7; 1. Subject to order (4) below, no statements of non-expert witnesses or expert reports may be relied upon by the plaintiff unless they are served on the defendant's solicitor on or before 15 February 2016 without the leave of the Court. 2. Direct the plaintiff to serve the report of his psychiatrist on or before 28 February 2016. 3. The matter is relisted before Garling J for further directions on 4 March 2016. 4. The plaintiff to pay the defendant's costs of today. 5. Liberty to apply on three days' notice.
10. The plaintiff breached the timetable ordered by Adamson J. The plaintiff did not serve any lay or expert evidence by 15 February 2016 or any psychiatrist's report by 28 February 2016.
11. By letter dated 16 February 2016 the defendant informed Mr Margiotta that it intended to file a notice of motion to dismiss the proceedings pursuant to UCPR 12.7(1) in the event that the plaintiff failed to serve any evidence by 1 April 2016 or obtain leave from the Court to rely on the evidence served as required under Adamson J's orders made on 4 December 2015.
12. The plaintiff did not serve any lay or expert evidence, or any report from his psychiatrist, before the matter came before me on 1 April 2016 in the professional negligence list. On that day I made the following orders: 1. The plaintiff is to serve all or any evidentiary statements upon which he proposes to rely by 27 May 2016 on the condition that no further evidentiary statements will be permitted thereafter without leave of the Court. 2. The defendant, if so advised, to file and serve any motion for interlocutory or final relief with supporting affidavits by no later than 3 June 2016. 3. Reserve costs. 4. Grant liberty to apply on three days' notice.
13. I then listed the matter before me for further directions on 2 September 2016. However, the plaintiff breached the timetable again by failing to serve any evidentiary statements by 27 May 2016. Mr Margiotta advised of his inability "to finalise statements in support of the plaintiff's claim" by letter dated 27 May 2016. The defendant then wrote to Mr Margiotta on 30 May 2016 as follows: "We assume that your email means that your client is still proposing to serve statements and/or expert reports at some stage but they have not yet been completed rather than deciding to rely on a documentary case at trial. We would be grateful if you could please clarify your client's position by return mail."
14. Mr Margiotta did not reply to that letter.
15. The defendant's present motion was filed on 3 June 2016. The first listing of that motion was on 17 June 2016 before the Registrar when the plaintiff was directed to file his evidence in response to Ms Osborne's affidavit by 22 July 2016. The motion was listed for hearing on 31 August 2016 when it came before me. However, before that occurred, Mr Margiotta wrote to the defendant on 21 July 2016 in these terms: "We refer to the orders made by Registrar Bradford on 17 June 2016. You are aware that we have had many difficulties with our client in respect of this matter. We are presently finalising the plaintiff's evidence in this matter and have a further conference with counsel arranged for … 25 July 2016. We cannot comply with the order to file and serve any affidavit evidence (in response to the defendant's motion) by 22 July 2016. We hereby request a further 21 days to file our affidavit evidence in response to your motion and seek your consent to this additional period."
16. The defendant replied to that letter on 25 July 2016 as follows: "I note that your client has, yet again, failed to comply with the Court's orders. My client is prepared to consent to your request for a 21 days extension of time in which to serve evidence in response to my affidavit in support of my client's motion to dismiss the proceedings but only on the basis that giving such consent does not jeopardise the hearing date of the motion. My client intends to press for the motion to be heard on 31 August 2016 irrespective of whether or not your client has served any evidence in relation to the motion."
17. Mr Margiotta wrote to the defendant on 12 August 2016 in the following terms: "We write to advise that our client Mr Domenico Borgese will be swearing an affidavit in this matter in Melbourne on Monday next. A draft of his affidavit without annexures is enclosed herewith for your attention. We also enclose herewith a letter serving medical reports without annexures. The original of this letter with the reports will be provided to you early next week. Further, in relation to the defendant's application to strike out the plaintiff's statement of claim [sic] we have been unable to finalise our affidavits and seek some additional time to serve our affidavits."
18. On 29 August 2016, the plaintiff filed a notice of motion seeking leave to administer interrogatories.

The plaintiff's response to the application

1. Mr Margiotta swore an affidavit on 31 August 2016 in response to the defendant's application to dismiss the proceedings. It is detailed and expansive. However, it is not in my opinion necessary to recall the details for present purposes. The significant and reoccurring theme of Mr Margiotta's affidavit is that Mr Borgese suffers, and has for a considerable period suffered, from a serious and enduring psychiatric condition. There is adequate medical evidence to support that fact. Relevantly, Mr Borgese's medical condition has adversely affected Mr Margiotta's ability to obtain appropriate instructions from his client and that in turn has caused a considerable proportion of the delays that have been the hallmark of this litigation so far. Mr Margiotta has indicated, in effect, that the plaintiff is a difficult client and that their relationship has been strained. Experience indicates that delay is often the unfortunate by-product of such circumstances. I hasten to observe that the plaintiff's medical condition does not appear to me to have caused all of those delays and I consider that to some extent Mr Margiotta could and should have been able to take steps to reduce them and in particular to ensure that the plaintiff complied, as nearly as possible, with the several directions that have been made by the Court from time to time over the more than four years that the proceedings have been on foot.
2. The affidavit is significant for another reason. Unless I misunderstand Mr Margiotta's position, it seems to be the case that the plaintiff's evidence in the substantive proceedings is now complete. The one matter that the plaintiff is still concerned to explore is the desire to interrogate the defendant. The proposed interrogatories are predominantly, if not exclusively, directed to the existence or otherwise of the allegedly mutual wills executed by the plaintiff's parents and whether the executrix in the Family Provision Act proceedings instructed the barrister who appeared for the estate to make an admission or concession that their wills were in fact mutual wills. It seems to me that the need for the interrogatories that have been foreshadowed is slight inasmuch as the question of the true nature of the wills concerned would be directly ascertainable from their terms and possibly also from the circumstances that attended their execution. I am presently not required to say whether the wills were in fact mutual wills or what are commonly known as mirror wills. It seems highly unlikely that the plaintiff's rights, if any, to enforce testamentary provisions in his parents' wills, whatever be the proper description of them, would or could be definitively or finally established or determined merely by reference to forensic decisions made by the defendant in the plaintiff's proceedings for provision out of his father's estate.
3. In the circumstances it appears, therefore, that the plaintiff is finally ready for his case to be heard. That assumption, if accurate, informs consideration of the dictates of justice and where, as between the plaintiff and the defendant, the proper balance on the present application is to be found. It is not, however, determinative.

The defendant's submissions

1. The defendant contends that the plaintiff's conduct of these proceedings has occasioned it significant prejudice. The extent of the delay is presumptively and self-evidently prejudicial. Delay in the conduct of the proceedings is exacerbated by the fact that their commencement was itself considerably delayed. Memories can be expected to have faded, especially having regard to the fact that the initiating events occurred almost precisely 40 years ago. Mr Maguire has died. Costs and expense have been unnecessarily incurred and probably wasted.
2. Conversely, the plaintiff's prejudice is limited. According to the defendant, the plaintiff's prospects of success are poor given the Limitation Act defences and the questionable breaches of arguably novel solicitor duties upon which the plaintiff's case depends. The estate of Giuseppe Borgese was in any event of limited value, of which the plaintiff has already been awarded one half. Moreover, the plaintiff's delay in the commencement of the proceedings infers a lack of interest in his own case that is not displaced by any evidence from him, as opposed to Mr Margiotta, explaining the delay.
3. The defendant also submitted that the delay is "significant". Despite being on foot for over four years, the matter has not progressed beyond pleading and discovery. The plaintiff's several defaults are also described as egregious, including failures to file evidence in breach of "guillotine" orders. Even after the defendant's current motion was filed, the default continued, including the breach of an order that the plaintiff file his evidence on the application by 22 July 2016. That delay remains unexplained on the defendant's analysis.
4. The material that has now been served as evidence in the principal proceedings consists of material that could have been served last year. The defendant contends that the conduct of the proceedings so far provides an inauspicious setting for whatever remains of the case. The defendant has provided no less than eight warnings that it would take the present course, with no reasonable result or response from the plaintiff.
5. Since the commencement of the proceedings, the defendant has taken the following significant steps, at corresponding expense: 1. Anthony Morton has provided a statement. Mr Morton was a partner at the defendant who took over the conduct of Mr Maguire's matters after he retired in 2005. Mr Morton is a key witness as he was the solicitor acting for the estate in the plaintiff's Family Provision Act proceedings. 2. Mr Maguire has provided a statement. He was the solicitor who attended the important conference with Mr and Mrs Borgese on 21 June 1976. 3. The defendant's senior counsel has conferred with Mr Hadley of counsel who appeared for the estate on the Family Provision Act proceedings. 4. Mr Martin has provided a statement. He is the solicitor referred to in paragraph 13 of the amended statement of claim. 5. Ms Papasidero has provided statements in July 2013 and June 2015. She acted as the interpreter for her parents at the 21 June 1976 conference.
6. The continuation of the proceedings is distressing and inconvenient to the defendant and the personalities behind it.
7. The defendant submits that in all of the circumstances the dictates of justice impel me to a conclusion that the proceedings should be dismissed.

Applicable principles

1. The court obviously has a discretion when considering an application made pursuant to UCPR 12.7(1). The relevant principles were succinctly summarised by Simpson J in Hoser v Hartcher [1999] NSWSC 527, cited by McCallum J in Templar v Watt [2014] NSWSC 937 at [25] as follows: "[25] … (1) the ultimate question is whether, on balancing the prejudice to the respective parties by making or not making an order, justice demands that the action be dismissed…; (2) the discretion should be exercised only in a clear case where it is manifestly warranted…; as is generally the case with discretionary decisions, each case depends upon its own facts. Rigid formulae should not be applied to the exercise of the discretion…; (3) any explanation offered by the plaintiff for the delay in proceeding must be considered…; (4) personal blamelessness on the part of a plaintiff (as distinct from any tardiness or other fault on the part of his/her/its legal representative) is relevant…; (5) a defendant who takes no steps to secure progress in the proceedings, or to activate an apparently inactive plaintiff or who stands by in the hope that the passage of time will ensure the quiet death of the proceedings or that the longer delay will strengthen the case for striking out, runs the risk that that very behaviour will operate to his/her/its disadvantage. A defendant has two choices: to attempt to prod the plaintiff into action, or to stand by, doing nothing, trusting that time will bring about the slow death of the action. Either choice represents something of a gamble, dependent upon future events that the defendant is unable with any degree of confidence to predict. If the defendant opts for the former course, of prodding the plaintiff into action, it may succeed in doing so, precluding an application to strike out. On the other hand, if the plaintiff remains inert, the defendant's case for striking out strengthens with passing time. If the defendant chooses the latter option and takes no action, the plaintiff may take no further steps, or may take no further steps until such irremediable prejudice is caused to the defendant that the application to strike out will succeed; if, however, some other event galvanises the plaintiff into action the defendant, having done nothing to progress the matter, can hardly be heard to complain of the plaintiff's earlier inactivity…; (6) delay between the date the cause of action arose and the commencement of the proceedings may be a relevant factor ... But in my view, this circumstance must be treated with some caution. The weight that can be accorded to that delay is limited. Where an action is commenced within the period provided for by an applicable statute of limitations, it would not ordinarily be appropriate to take that period into account. However, if a plaintiff has delayed significantly in the commencement of the proceedings, and that delay is followed by further lethargy in the advancement of the proceedings, the effect of the initial (but permissible) delay is compounded. The real question is not the length of the delay, but the impact that delay has upon the defendant's capacity properly to defend the plaintiff's claim. That will be a question of fact in each case. While there may be some prejudice presumed by reason of the passage of time, much will depend upon the nature of the proceedings, and the identification of the issues involved in the litigation. Where, for example, at the close of pleadings it can be seen that there are disputed questions of fact dependent upon the oral evidence of witnesses, or their recollections, the prejudice will plainly be greater than in cases that depend essentially upon the application of legal principle to largely undisputed facts, or upon disputed questions of fact that will be resolved by reference to documentary or other objective evidence not likely to be affected by the effluxion of time; (7) the onus lies on the defendant to establish any prejudice upon which reliance is placed. The disappearance or death of witnesses, the fading of their recollections, or the destruction of records, are some obvious examples of the kind of prejudice that might arise; (8) prejudice to a defendant caused by delay has to be balanced against prejudice to a plaintiff deprived of an otherwise valid claim; delay in the commencement of proceedings by a plaintiff is sometimes taken as evidence contra-indicating prejudice to the plaintiff in the sense that he/she/it has evinced no interest in his/her/its own case.... Such an inference may be contra indicated by explanatory evidence; in this regard the plaintiff's personal responsibility for the delay is an important factor as is any explanation provided for the delay; (9) what the defendant has (or has not) done by way of preparation for trial may be a factor. This is a distinct question from that concerning any steps taken (or not taken) by the defendant in prompting the plaintiff to action. A defendant who has not interviewed witnesses, taken statements or collected documents, after being served with the claim, has a less meritorious complaint about the effect of prejudice caused or presumed by reason of delay…; (10) the plaintiff's prospects of success is a relevant factor. If it appears that the prospects are minimal, the discretion is more likely to be exercised in favour of the defendant. Conversely, where the plaintiff's case is strong (absent the kind of prejudice to the defendant to which I have referred) it is less likely that justice will be done by striking the action out…; (11) the exercise of the discretion to strike out should not incorporate any element of punishing a tardy plaintiff, or of excluding one who may appear to have some unworthy characteristics…. The ultimate aim of a court is the attainment of justice.... To adapt the words of the High Court …, discretions such as that presently invoked ought not to be used to supplant the overall aim of the attainment of justice." [Citations omitted]
2. Part 6 of the Civil Procedure Act 2005 has come into operation since Hoser v Hartcher. These principles are still valuable but must be considered now in the light of the mandatory requirements to have regard to the overriding purpose in s 56 and the dictates of justice in the sense referred to in s 58. Sackville AJA commented in Bi v Mourad [2010] NSWCA 17 at [41] that the statements to be derived from Hoser v Hartcher may now be "somewhat too generous". The dictates of justice must be considered having regard to the position of all parties in the litigation. The Court may dismiss proceedings for want of due despatch even where the default or delay is not intentional or contemptuous.

Disposition

1. The defendant has not in terms contended that any significant or relevant delays were occasioned before the defendant's current solicitor assumed conduct of the proceedings on its behalf. The Court had during that time ordered a stay of the proceedings until the plaintiff served a verified list of documents upon the defendant. The matter had been unsuccessfully mediated on 12 August 2013. The Court had refused the plaintiff's request to relist the matter for further directions following the mediation. The plaintiff finally served his verified list of documents on 23 August 2013. I am, however, unaware whether or not such list included the original wills of the plaintiff's parents or the later will and codicil executed by his father, although it seems likely inasmuch as they are exhibited to the plaintiff's principal affidavit.
2. It is clear that there have been significant delays in these proceedings since January 2014, when the defendant retained its current solicitors, for which delays the plaintiff is responsible and to which the defendant has not contributed in any way. Indeed, in the period of two years and eight months since then, the plaintiff has managed to do no more than serve four affidavits upon the defendant, one sworn by the plaintiff on 15 August 2016, one affirmed by Martin Hadley on 12 August 2016 and two affidavits sworn by Mr Margiotta on 29 August 2016 and 31 August 2016 respectively. The first of Mr Margiotta's affidavits deals with a belated attempt to require the defendant to answer interrogatories. The second affidavit is directed to explaining the delays in the proceedings so far. It follows, therefore, that the preparation of the plaintiff's affidavit and Mr Hadley's affidavit appears to be the sum total of anything done by the plaintiff so far substantively to progress his case.
3. Mr Hadley's affidavit can quickly be put to one side. The defendant has admitted at paragraph 28(c) of its defence that Mr Hadley, as counsel appearing for the estate of the plaintiff's father in the Family Provision Act proceedings before Young CJ in Eq produced a chronology to the Court that referred to mutual wills. Mr Hadley's affidavit does not advance the plaintiff's case beyond that admission by the defendant.
4. Young CJ in Eq referred to the mutual wills contention in his judgment in Borgese v Papasidero [2006] NSWSC 407 at [5], [6] and [27] as follows: "[5] During argument in the present case, the plaintiff has put that the farm was to pass to the testator as trustee and that the beneficiary of the trust was to be himself. He says that there was a contract between his father and his mother that they would make mutual wills so that the farm property would pass to the survivor, then the present farm to the plaintiff and, finally, the other land owned by the family to his five sisters. [6] There seems to be some support for this proposition, but the testator, whether in breach of contract or otherwise, sold the part of the property that would pass to his daughters and made a new will different to his wife's will in 1999. … [27] It is quite clear that the plaintiff feels very badly that he has been let down. He expected as the only son of the family that he would inherit the property. That was fuelled by comments that his mother made and the scenario which he believes to be true of mutual wills, yet that has been undone by what his father did in not complying with the mutual wills and selling off part of the property and in making his will the way he did."
5. His Honour was not called upon to decide the issue and did not do so.
6. The plaintiff's own affidavit is a less than perfect example of its type. However, it does have exhibited to it a series of what will clearly become (at least some) very significant documents in the plaintiff's case. It is necessary to refer to the terms of some of these.
7. The Will of the plaintiff's mother dated 21 June 1976 is in the following relevant terms: "I GIVE DEVISE AND BEQUEATH the whole of my property … unto my said husband PROVIDED THAT he shall survive me for three (3) calendar months AND if my husband should predecease me or fail to survive me then I GIVE DEVISE AND BEQUEATH all my property … unto my Trustee upon the trusts and subject to the declarations and powers following … (AND I DIRECT the reservation from sale of my Irrigation Farm Purchase 1143 and Non-Irrigable Purchase 118 … unless necessary for purposes of administration of my estate … AND I FURTHER DECLARE that my son DOMENICO BORGESE shall have the right to purchase any of the assets of my estate not being part of my personal possessions at the probate valuation thereof for cash payable in full by the first anniversary of my death subject to him giving notice of his exercise of option … within six (6) months after my death…"
8. The plaintiff's father survived his mother. He took the whole of her estate unconditionally. The right to purchase her assets given to the plaintiff by his mother in her will did not come into effect. It was conditional upon he husband predeceasing her or not surviving her for the specified period. Neither of those things happened. Nor does the will on its face support the existence of a promise that she would not revoke her will or that it was made in consideration of some agreement with her husband that he would make his will in particular terms and promise not to revoke it. In short, there is nothing in the will of the plaintiff's mother that suggests that it is a mutual will as the plaintiff wishes to contend.
9. The Will of the plaintiff's father dated 21 June 1976 is in corresponding terms: "I GIVE DEVISE AND BEQUEATH the whole of my property … unto my said wife PROVIDED THAT she shall survive me for three (3) calendar months AND if my wife should predecease me or fail to survive me then I GIVE DEVISE AND BEQUEATH all my property … unto my Trustee upon the trusts and subject to the declarations and powers following … (AND I DIRECT the reservation from sale of my Irrigation Farm Purchase 1143 and Non-Irrigable Purchase 118 … unless necessary for purposes of administration of my estate … AND I FURTHER DECLARE that my son DOMENICO BORGESE shall have the right to purchase any of the assets of my estate not being part of my personal possessions at the probate valuation thereof for cash payable in full by the first anniversary of my death subject to him giving notice of his exercise of option … within six (6) months after my death…"
10. It also follows that there is nothing on the face of the will of the plaintiff's father to suggest that it is a mutual will as the plaintiff wishes to contend.
11. Farm 118 was sold by Giuseppe Borgese to Francis Rupert Smith and Nerrin Margaret Smith for $50,000 by Contract for Sale of Land dated 30 October 1981.
12. On 22 January 1999, Mr Ian Maguire of Maguire & Martin, solicitors, wrote to the plaintiff in the following terms: "RE: DOMESTIC ALTERCATION I am sending this to you because I am not yet aware that you have instructed another solicitor, although I wish you to do so, rather than replying directly to me, and it should be obvious to you that in any case you need separate legal representation in relation to the partnership issues. I add my personal hope that you and your father, who is an old client, may become fully reconciled."
13. On 16 March 1999, Maguire & Martin wrote to Mr M F Tarlinton, a valuer, as follows: "RE: GIUSEPPE BORGESE, FARM 1143 It is understood that a dispute which has existed for a couple of months between Mr Giuseppe Borgese and his son, Domenico, in relation to the past working arrangements on the father's farm, Farm 1143 … has not been fully resolved, to the extent that the partnership is being dissolved … if in case the dispute could be resolved by a transfer of the father to the son, at either full or discounted consideration, of the farm, a full market type valuation is needed, and Mr Giuseppe Borgese has accepted our advice to try to obtain it from you…"
14. Mr Tarlinton provided the valuation as requested. He estimated the market value of Farm 1143 to be $320,000.
15. Maguire & Martin wrote to Mackenzie & Vardanega on 30 April 1999, in the following relevant terms: "RE: OUR CLIENT GIUSEPPE BORGESE - DISSOLUTION OF PARTNERSHIP WITH SON AND DAUGHTER-IN-LAW As your client would be aware, our client, Mr Giuseppe Borgese, has resumed the operational control of his Farm 1143, and he now wishes to be assured that there is not any claim by your client to ownership or a share of ownership of the farming plant and equipment which he is utilising, and which is nominally an asset of the former partnership, in respect of which former partnership the correctness of the capital accounts is in dispute."
16. It would appear that Mackenzie & Vardanega wrote on the plaintiff's behalf to Maguire & Martin on 11 May 1999. That letter is not in evidence. However, the reply to the letter from Maguire & Martin dated 13 May 1999 is, and is in these terms: "RE: BORGESE PARTNERSHIP DISPUTE Your letter of the 11th was received here by mail today. I reply immediately to the outrageous assertion in paragraph 3. It was perfectly clear that in the event of survivorship by Giuseppe Borgese of his wife Carmella, who died on 21 February 1978, that she left him the whole of her estate absolutely and unconditionally, and the whole of the balance of her Will dealt with the alternative if he did not so survive for three months, so that in the events which happened, Mr G Borgese acquired all of her testamentary assets, as well, of course, as any property held jointly with his late wife by survivorship, and your client and other members of the family did not acquire any rights under the Will, including any option rights, and your client should be advised accordingly, and if he has been advised otherwise, it seems likely that a consequence of such incorrect advice would be that the negotiations which you say he seeks could only be abortive."
17. Maguire & Martin wrote again to Mackenzie & Vardanega on 22 June 1999 as follows: "RE: BORGESE PARTNERSHIP DISPUTE You have not responded to our letter of 13 May last, which answered yours of the 11th. Since then, Mr Borgese has been inquiring, and he called again yesterday with his daughter, Mrs Benilda Papasidero, as interpreter. Mr Borgese made a number of very interesting statements about the manner in which the farm has been run since the beginning of the 1980's - he was contributing largely to the workload, but receiving virtually nothing, and living upon his 'Italian Pension'. At present he is naturally feeling the strain, and realising it is impracticable for him at his age to do all the work of continuing to run the farm alone/unaided by your client. In fairness to his 5 daughters, he indicated that he was seriously considering an auction sale. However, in a last attempt to avoid litigation for rectification of accounts (or otherwise), and in an attempt to restore peace in the family, he is prepared to make, entirely without prejudice to his rights should the following offer be refused, an offer open for acceptance only until 31 July 1999, as follows: (a) Until that date, 31 July 1999, your client be given the right to buy Farm 1143 (374/751694) at Mr Tarlinton's valuation dated 5 May 1999 (which is considered to be very moderate, even concessional so far as your client is concerned) $320,000.00, and (b) He is prepared to concede, should your client proceed to buy the farm on that basis, that Dominic may have the working assets given in with the sale (of course, Mr Borgese does not concede that the partnership has any relevance to the ownership of the real estate, and he is talking only about other assets such as plant and equipment, and the frozen partnership bank account. Please obtain instructions and let us have your reply as soon as possible."
18. A Certificate of Judgment dated 18 April 2002 is also exhibited to the plaintiff's affidavit. It indicates that Garry Munro Blumer and Ian Geddes trading as Cater & Blumer recovered a judgment in the Local Court at Griffith against the plaintiff in the amount of $8,936.12. A garnishee order to enforce the judgment was also later granted.
19. Finally, for present purposes, is a Cater & Blumer file note dated 22 June 2006 with respect to the Estate of Borgese, prepared by "AM", in the following terms: "Domenic rang me He said that he had been told that the property is to be sold at auction on Saturday. He wanted to know why we had only given him twenty-four hours notice. I apologised about the late notice. I told him that there had been a mix up and that the contracts were only finalised this week and it was not our intention to only give 48 hours notice. He said he would be applying to the court for an injunction to stop the sale. He wanted to know by whose authority we were purporting to sell the property. I told him the executrix has the power to sell the property under the will of his late father and the property was an asset of his late father. She would then distribute the net proceeds of the estate in accordance with the decision of the judge in this matter. Domenic said that the orders of the judge were unclear and intimated that he may try to overturn the decision of the judge. I told him he should see a solicitor in this regard. Domenic said that we were to stop the sale if we could, otherwise he would go to court."
20. It is apparent that the reference to the court and the judge was a reference to the Family Provision Act proceedings from which the plaintiff received one half of the estate of his father.
21. With the assistance of this material it is clear that the plaintiff's contention that his parents made mutual wills that served to favour or benefit him in some way cannot succeed. Any factual or legal basis for the first thirteen particulars of negligence is comprehensively contradicted by the material to which the plaintiff's affidavit refers. The last three particulars of negligence do not have anything to do with a discernible breach of duty by the defendant.
22. At the heart of what I confidently suspect is really the plaintiff's claim are the matters to which he refers at paragraphs 11 and 12 of his affidavit. Those paragraphs are instructive: "11. About one (1) to two (2) weeks following the meeting at Mr Maguire's office my mother spoke to me outside our home on Farm 1143. She spoke to me in the Italian in the Calabrese dialect and said words to the following effect: Carmela Borgese: 'Domenic, the house block will be yours and the other block on the far side goes to your sisters'. There were no other persons present when this discussion took place. I assumed from this that my mother expected my father to honour the agreement between them. 12. I refer to paragraph 26 of the Affidavit of Benildra [sic] Papasidero sworn 28 October 2004 and filed in the Supreme Court proceedings. The said paragraph is set out as follows: 26. 'Dad and Mum wrote their first Will shortly after moving to Leeton. Mum said to me, "The Italian tradition is that the male children inherit the farm, but you are all my children and I want to be fair, I want to leave you girls something as well. So what we want to do is leave Domenic one portion of the farm and the farm machinery and you girls the other portion to divide amongst you."' I believed that this statement was consistent with my parents agreeing not to change their Wills, and was made by their eldest daughter, the executrix of both their Wills, the person who acted as their interpreter and who was present when instructions were provided to Mr Maguire solicitor to prepare their Wills and to have them signed in his presence."
23. The plaintiff's disappointments that have been generated by his unfulfilled expectation that he would one day acquire Farm 1143 in accordance with what he contends were promises to that effect from his parents, in consideration for which or in reliance upon which he altered his position to his detriment, do not generate a cause of action against the defendant in these proceedings. I pass over the questions of whether they generate a cause of action against anyone at all, and whether such cause of action is now barred by effluxion of time or otherwise fatally compromised by the plaintiff's election to pursue alternative avenues for relief. It is clear, however, that his concerns do not coincide with the existence of a cause of action against the defendant or that it was the result of the defendant's negligence. The amended statement of claim does not come close to adumbrating any claim against the defendant suggesting that the plaintiff's parents made wills on the advice of the defendant that did not give effect to their intentions at the time. The plaintiff 's affidavit and the surrounding circumstances upon which he relies do not support or suggest the existence of a possible claim by him against the defendant as a disappointed beneficiary and no such claim is pleaded.
24. I have earlier referred to the fact that the plaintiff's prospects of success will be taken to be a relevant factor. If it appears that the prospects are minimal, the discretion to dismiss the proceedings is more likely to be exercised in favour of the defendant. Conversely, where the plaintiff's case is strong, absent irremediable prejudice to the defendant, it is less likely that justice will be done by striking the action out. In the present case, I am confident that the plaintiff cannot succeed against the defendant upon the cause of action currently pleaded. I am also troubled by the fact that the delays in this case are not so egregious that the defendant's application must succeed.
25. The defendant has identified some prejudice. One significant witness has died and the memories of others may be expected to be less than perfect. By the same token, the case will in large part depend upon documents that speak for themselves or which might be expected usefully to rejuvenate failing memories. I also need to take account of the fact that the defendant, for reasons best known to it, has declined to seek to have the proceedings dismissed summarily pursuant to UCPR 13.4(1)(b). The defendant has not by this application foreclosed the possibility that it might do so in the future.
26. In my opinion, this is not a case where the delays have been such that the proceedings should be dismissed. However, if no other application is made by the defendant, it seems to me that the proceedings should be listed for final hearing as soon as possible. I have a perception that both parties are in a position to go to trial on short notice. I will no doubt be told otherwise if I have misapprehended the true position, although the plaintiff is in no position to seek further time and the defendant has indicated that it does not want it. The plaintiff's desire to interrogate the defendant should be reconsidered in the light of my earlier remarks about it.

Conclusions and orders

1. In my opinion the following orders and directions should be made: (1) Dismiss the defendant's motion for an order pursuant to UCPR 12.7. (2) Order that the costs of the motion should be the plaintiff's costs in the proceedings. (3) Note that the plaintiff's evidence is complete. (4) Appoint 15 September 2016 at 9.30am before me for directions, including but not limited to a timetable for the filing and service of evidence upon which the defendant proposes to rely. (5) Grant liberty to the parties otherwise to approach the List Manager forthwith for the appointment of a hearing date. (6) Grant liberty to apply to me on 48 hours' notice given to my Associate.

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