(a) is the reason for making a late claim sufficient?
(b) will the beneficiaries under the will be unacceptably prejudiced if the time were extended?
(c) has there been any unconscionable conduct on either side which would enter into the equation?
34 Apparently he also accepts a view that was expressed by Needham J in Fancett v Ware (Supreme Court of New South Wales, Needham J, 3 June 1986, unreported) that there is no purpose in extending the time with respect to a claim that must fail. In Phillips v Quinton (Supreme Court of New South Wales, Powell J, 31 March 1988, unreported) Powell J when considering the matter at the substantive hearing leant to the view that a plaintiff seeking an extension of time under the Testators Family Maintenance Act must now demonstrate not merely a reasonable prospect but at least a strong probability of obtaining substantive relief. That view was not accepted by Hodgson J in Basto v Basto (Supreme Court of New South Wales, Hodgson J, 8 September 1989, unreported).
35 In De Winter v Johnstone (Court of Appeal, 23 August 1995, unreported) Powell J referred to this matter and in particular the fact that nowadays the application for extension of time is invariably dealt with at the time of the application for substantive relief. He said at page 23:
"In such a case, so it seems to me no extension of time ought to be granted unless it be established (inter alia) that the applicant for an extension of time would, in the event of that extension being granted, be entitled to an order for substantive relief."
36 Sheller J considered that it was only necessary to show that the application was not bound to fail. Cole JA seems to have adopted the parties' approach of looking at the strength of the plaintiff's case.
37 The case of De Winter v Johnstone is also useful in that Sheller J commented on the meaning of "unconscionable". He was dealing with an appeal from Master McLaughlin (as his Honour was then) and he referred to the Master's comments to the following effect:
" Unconscionable conduct in this context of course relates to such matters as whether the plaintiff has made an informed decision not to make a claim against the estate and has then decided after the limitation period has expired to make such a claim on account of some change in her financial and material circumstances which has occurred after the expiry of the limitation period."
38 With regard to the Master's comments, his Honour observed:
"…with all respect I would not have thought this to have been unconscionable conduct. No doubt it depends on the circumstances. However the concept of unconscionable conduct is to be directed towards a deliberate holding off designed to lull beneficiaries into false sense of security. There is nothing to suggest anything of that sort in the present case."
39 There is no unconscionable conduct on the part of the plaintiff and the prejudice to the beneficiary, which arises, needs to be addressed. Apart from the fact that the beneficiary is now at risk of losing its bequest there is no evidence to suggest that the beneficiary has altered its position in the expectation of receiving the bequest. Indeed it ignored part of the bequest and proceeded to raise its own funds for the installation of the organ rather than waiting for the gift to fall into possession.
40 It was said that there had been prejudice because with the passage of time there has been a change in the law. In the circumstances of this case the plaintiff would have been an s 6(d) applicant under the Act who would have been easily able to establish factors warranting the making of the application. I do not think that this prejudice exists.
41 I turn to consider the explanation for the delay. At the time of the deceased's death and on the basis of medical advice the plaintiff had received, he did not expect to live for long thereafter. The treatment of HIV/AIDS was in its infancy and the future of such treatment was unknown. His doctor advised the plaintiff that his future was, at best, uncertain. At the time many of the plaintiff's friends had died within a short period of diagnosis. The plaintiff thought that the deceased and he would both die within a short time after diagnosis.
42 In January 1997 the plaintiff attended the defendant at his office and discussed amongst other things, buying the Waverley property. Some time later that year the plaintiff went to Malta and found out that the parish priest was not prepared to wait any longer for the bequest and he had started a campaign to raise funds for the new organ. When the plaintiff discussed this with the defendant he made the comment that he might even consider selling the house to raise to raise the $280,000. Thereafter the plaintiff and the deceased's sister were in contact with the Church.
43 In May 2002 the plaintiff attended the defendant's office to discuss various repairs to the house. At this stage he advised the defendant that the organ was now in the Church and that the congregation had paid for it. There was a suggestion from the deceased's sister, Margaret, that perhaps a tabernacle could be provided for the Church now that the congregation had paid for the organ. In response to this suggestion the defendant suggested that there would be need to be an application to the Supreme Court to vary the will which although difficult might be worthwhile. Plainly this was not advice about making an application under the Act. In September of that year the plaintiff and Margaret decided not to proceed with this proposal.
44 In May 2006 the plaintiff attended the defendant's office and referred to the change in the entitlement of de facto partners and the fact that he thought he should be getting more out of the estate. He also mentioned that the house had increased in value from $500,000.00 to $1,500,000.00. The defendant advised the plaintiff that he might have statute of limitations problem. He did not discuss the provisions of the Act as he had no detailed knowledge of the Act. He suggested that the plaintiff obtain further advice.
45 In June 2006 the plaintiff obtained advice from Mr Hart. However, the plaintiff did not proceed with his services. By March 2007 the plaintiff was in contact with Tress Cox Lawyers his present solicitor.
46 It is plain that in recent times the plaintiff has changed his attitude to the suitability of the provision the deceased made for him in his will.
47 In cross-examination it became apparent that until about a year ago the plaintiff did not understand that once he ceased to reside in the property it would become the property of the Church. The plaintiff's understanding of his entitlement shortly after the death of the deceased was expressed clearly in cross-examination on pages 23 and 24 of the transcript.