Choras v Farmakidis

Supreme Court of NSW|2020-03-04|Before: Parker J

Judgment

These are family provision proceedings under Chapter 3 of the Succession Act 2006 (NSW) ("the Act") concerning the estate of the late Sylvia Jasmine Farmakidis who died in October 2010. The claim for provision has been made well outside the one year period allowed by the Act, and the plaintiff needs an extension of time in order to be able to maintain it (see s 58(2)). The defendant opposes the extension application and the proceedings have come before the Court as a result of an application by the defendant to have the extension application separately determined, before the proceedings continue any further towards final hearing.
The deceased was born in August 1950. She married John Farmakidis. Together they had two sons, Francis John Farmakidis and James Demetrios Farmakidis. Francis was born in June 1972 and James was born in July 1974.
In 1973, the deceased and John Farmakidis acquired a property in Maroubra which they used as their matrimonial home. Sometime in the early 1980s, they separated and later divorced. The deceased acquired John Farmakidis' share of the Maroubra property in September 1982 and continued to live there with her sons, Francis and James.
The plaintiff, Emanuel Choras, was born in December 1937 in Greece and migrated to Australia in 1956. Mr Choras formed a de facto relationship with the deceased in the mid-1980s and soon after moved into the Maroubra property. In 1986 the deceased sold the Maroubra property and purchased a house at Concord, where she lived with Mr Choras and Francis and James (until they left home).

Procedural background

Mr Choras commenced these proceedings against Francis Farmakidis, as defendant, in May 2019. The initial case management steps required for the conduct of family provision proceedings under Practice Note SC Eq 7 were complied with. An affidavit was filed from Mr Choras in support of his claim, containing the information prescribed in cl 6. An affidavit was filed from Mr Farmakidis containing the information about the deceased's estate as required by cl 9.
A mediation took place, but it was unsuccessful. Following that, the notice of motion which has led to the current hearing before the Court was filed on behalf of Mr Farmakidis.
The notice of motion sought an order under Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), r 28.2, that there be a separate hearing of Mr Choras' application for an extension of time under s 58(2) of the Act, to take place "instanter". The application was allocated to me to be heard in the Applications List on 21 February.
On reviewing the file in advance of the hearing, it appeared that counsel for Mr Choras might be contending that all the Court would be deciding on 21 February would be whether to conduct a separate hearing. I convened a directions hearing on 17 February to clarify the position. The parties agreed that if the Court decided to make an order for a separate hearing, Mr Choras' application for an extension of time would then be dealt with as part of the same hearing. The parties indicated that there would be sufficient time to complete the hearing of the extension application (if ordered) on the day. As it happened, the hearing was not completed and had to go over to 4 March.
Initially, Mr Farmakidis' notice of motion also sought an order that the proceedings be summarily dismissed under UCPR r 13.4. But counsel did not press for me to deal with this application until after the separate hearing application (and, if successful, the hearing of the extension application) had taken place. I had some reservations about whether it would be appropriate to permit the defendant to proceed in this way, but in the light of the conclusions which I have reached the question does not arise.

Separate hearing of extension application

After receiving the evidence and hearing the parties' submissions on the separate hearing application, I decided to grant it and made orders accordingly. In accordance with the prior agreement of the parties, the hearing then continued as a hearing of the extension application. I indicated at the time that I would set out my reasons for making an order for separate hearing of the application when I delivered my judgment. Those reasons now follow.

Evidence

On the separate hearing application, an affidavit was read by Mr Farmakidis (sworn 17 September 2019). Most of the affidavit addressed the merits of Mr Choras' family provision application and that evidence was received only as evidence of the case which would be put forward on the extension application. Other affidavits to be relied upon in the extension application were tendered on the same basis. This evidence was supplemented by information provided from the Bar Table, without objection, by counsel for the parties.

Issues arising under Mr Choras' claim

By his summons, Mr Choras seeks provision "out of the estate and/or notional estate" of the deceased. But counsel for Mr Choras accepted that the estate had been fully administered and accordingly a notional estate order would be required. Counsel also accepted that the only asset now available to meet a notional estate order is the Concord property.
The summons does not identify with precision what sort of provision Mr Choras will seek out of the Concord property should his claim succeed. According to Mr Choras, he has now made the application because he wishes to "down size", as the Concord property is too big for him. I infer that, at the least, Mr Choras will seek a sum sufficient to allow him to buy a smaller property. It is therefore clear that, should the claim succeed, the property will need to be sold to meet such provision, and Mr Choras' costs.
Counsel for Mr Choras submitted at one point in the hearing that the authorities as they stood at the time of the deceased's death in 2010 would have given Mr Choras a strong claim to receive the entire Concord property outright. It is not clear whether counsel maintains that is still the law, but the possibility remains that Mr Choras will claim the entire property.
From the material on the application, four main issues arise, or potentially arise, in the determination of Mr Choras' family provision claim.
First, there is the nature of the relationship between the deceased and Mr Choras. According to Mr Choras, his de facto relationship with the deceased lasted for about thirty-five years, and he cared for her right up to her death. But according to Mr Farmakidis, prior to the deceased's death her relationship with Mr Choras came to an end, and although Mr Choras continued to live at the Concord property, he and the deceased lived separately.
Under s 57 of the Act, Mr Choras would be an "eligible person" if he and the deceased were in a de facto relationship at the date of her death, but not if (never having married) the relationship had ceased before her death: see s 57(1)(d). Even if that was so, however, Mr Choras might be an "eligible person" because of a prior financial dependency on, or a close personal relationship, with the deceased: ss 57(1)(e)-(f).
It is not necessary to go into this question any further for the moment. Mr Farmakidis did not challenge Mr Choras' eligibility for the purposes of this application, and it was not clear whether it would ultimately be contended that Mr Choras was not an "eligible person". But on any view, there is, at least potentially, a factual issue about the nature of his relationship with the deceased in the period prior to her death.
Second, there are questions about the financial relationship between the deceased and Mr Choras. In particular, there are questions about the extent to which Mr Choras contributed to the deceased's assets, the extent of provision made by the deceased for Mr Choras during her lifetime, and Mr Choras' own financial position.
In her lifetime, the deceased owned a number of investment properties. These included a unit in Darlinghurst, which she bought in May 1999, and a unit at Burwood, which she bought in May 2000. The Darlinghurst unit was sold for a profit of $85,000 in May 2000 and the Burwood unit was sold for a profit of $95,000 in September 2001. In August 2002 the plaintiff bought a house at Homebush which was sold for a profit of $29,000 in August 2003.
The deceased also acquired and sold a number of businesses. These included a bakery in Abbotsford, a fish and chips shop in Austinmer Beach and a café in Newtown. There was no evidence about when these businesses were acquired and sold, or about the amounts invested by the deceased in them or the amounts she received from their sale.
At the time of the deceased's death Mr Choras was 72 years of age. He was then, and remains, on the age pension; and his case is that he had, and has, minimal assets. According to Mr Choras, he contributed financially to renovating of the Concord property. His case is that he had a strong claim for ongoing financial support from the deceased.
For his part, Mr Farmakidis alleges that Mr Choras made no financial contribution (or no financial contribution of substance) to the Concord property, the investment properties, or the businesses. Rather the reverse.
Mr Farmakidis gave evidence based on conversations with his mother and Mr Choras that her will reflected a prior agreement between herself and Mr Choras. Under this agreement Mr Choras had received the net proceeds of the investment properties at Darlinghurst, Burwood and Homebush. This was supposed to provide him with financial security. He would also be able to live at the Concord property until his death but the deceased's sons would receive the property on his death and they would also receive the deceased's superannuation when she died. Mr Farmakidis alleges that Mr Choras transferred the monies he received from the deceased (and possibly other monies from operation of the businesses) overseas. Mr Farmakidis does not accept that, even now, Mr Choras has no assets of his own.
Third, Mr Farmakidis accuses Mr Choras of bullying and abusive behaviour towards himself and James Farmakidis when they were growing up. It is alleged that on one occasion Mr Choras was responsible for breaking James Farmakidis' arm. Presumably these allegations are seen to go to the strength of Mr Choras' moral claims on the deceased's estate. For his part, Mr Choras emphatically denies the allegations.
Fourth, there is the question of competing claims on the deceased's bounty from her sons. Mr Choras alleges that neither Francis Farmakidis nor James Farmakidis played any significant role in looking after the deceased during the long illness that preceded her death. His affidavit also alleged against Francis Farmakidis various statements and actions demonstrating a heartless and mercenary attitude towards his mother.
Mr Choras' allegations against Francis Farmakidis are disputed by him. Furthermore he alleges that both he and his brother had strong financial claims of their own on the deceased's bounty.
According to Mr Farmakidis, his brother James has led a troubled and itinerant life. He married and had two children but the marriage failed in December 2013. He has dropped out of contact with the other members of his family for long periods. The suggestion is that he is now destitute or virtually so.
One of the affidavits tendered on the application was a late one from James Farmakidis himself, made on 17 February this year. In his affidavit, James Farmakidis recorded his address as being a place in Melbourne which I was informed is a shelter for homeless people. The affidavit stated that, should Mr Choras' extension application succeed, James Farmakidis would make his own claim for provision under the Act.
Counsel for Mr Choras initially suggested that a separate claim by James Farmakidis would be unnecessary, as any evidence of his needs could be put forward by Francis Farmakidis in answer to the claim by Mr Choras. But this would not allow James Farmakidis to claim more than the 50 per cent interest in the net estate to which he is entitled under the will. Counsel then pointed out that the Court has power under s 66(2) of the Act to adjust the rights of other beneficiaries, and that this could be used to make a greater provision for James Farmakidis. But this power would not be engaged if, for some reason, Mr Choras' claim failed. Ultimately, counsel appeared to accept that the only way in which James Farmakidis' interests could be fully protected would be by bringing his own claim.
In his affidavit, Francis Farmakidis stated that, had Mr Choras challenged the will following the deceased's death, he would have made his own application for provision. He said that at around the time of the deceased's death he was going through difficulties with his finances and with his mental health.
But at the hearing, counsel for Mr Farmakidis indicated that (having regard, I assume, to Mr Farmakidis' current financial position and health) if the extension was granted he would not be making an application for provision. Whether his financial circumstances as at 2010 remained relevant to Mr Choras' claim, or the potential claim by James Farmakidis, was not addressed in submissions and I therefore put it to one side for the purposes of the separate hearing application.

"Uniform practice" of separate hearing applications for family provisions

The first submission by counsel for Mr Choras was that there is a uniform practice in family provision proceedings that the court hears any application for extension which may be required at the same time as the substantive claim. Counsel submitted that the present application should be rejected (without the need to go into its merits) as being contrary to that practice.
In support of their submission, counsel quoted what Macready AsJ said in Burton v Moss [2010] NSWSC 163 (a case under the predecessor to Ch 3 of the Act, the Family Provision Act 1982 (NSW) ("FPA")) at [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.
Counsel acknowledged that in Vasconelos v Bonetig [2011] NSWSC 1029 White J (as his Honour then was) conducted a separate preliminary hearing of an extension application (which his Honour refused). But counsel pointed out that the separate hearing order in that case was actually made by the Registrar in advance of the hearing before White J. The suggestion appeared to be that the order might have been made per incuriam.
It is true that in the passage quoted from Burton Macready AsJ described the practice of hearing the extension application with the claim itself as operating "invariably". But if one goes back to the judgment in De Winter v Johnstone (Court of Appeal (NSW), 23 August 1995, unrep), what Powell JA actually said was that the practice operated "almost invariably". It is also quite clear that the making of the separate hearing order in Vasconelos was not per incuriam. The order was expressly endorsed by White J who said at [5] that it was "an exception to the usual course, but one that is warranted in the circumstances".
In Prince Alfred College Inc v ADC (2016) 258 CLR 134 the plaintiff brought a personal injury claim which required an extension of time. The trial judge heard the extension application together with the substantive claim. She found that the substantive claim failed on the evidence, and that the extension application would in any event be refused. Her decision was overturned by the South Australian Full Court, but the High Court found that the extension application should have been refused and restored the trial judge's dismissal of the claim.
In the course of its decision, the High Court commented on the procedure which had been adopted at first instance. The Court said (at 168-169 [113]): In some cases it may be possible to deal with an issue such as vicarious liability when the court has refused an extension of time. It is a matter of long-standing practice in most trial courts that, where possible, all issues be the subject of adjudication. The practice is based upon the desirability of avoiding the need for a new trial in the event that an appeal on one issue is successful. However … it is no more than a rule of convenience. It is not something which should invariably be done without consideration of the appropriateness of that course of action in the circumstances of the case.
The Court went on to say that the trial judge should not have dealt with the substantive question of liability at all. After observing that the determination of the extension application was "necessarily antecedent" to the determination of any of the substantive issues in the claim (at 168 [112]) and that there were critical gaps in the evidence on the vicarious liability issue, the Court said (at 169 [116]-[117]): 116. There are other, fundamental, reasons why the issue of liability should not have been decided. The first concerns the position of the court and coherence in its reasoning. A court cannot conclude that it would not be just in all the circumstances to grant an extension of time because a proposed defendant cannot properly defend the claims to be brought against it and then proceed to decide whether it could be held liable with respect to those claims. 117. The second reason has regard to the position of the [defendant] in the event that liability was determined. It is not to the point, of course, that the primary judge was of the view that the [defendant] did not breach its own duty of care and could not be held liable for the acts of [the wrongdoer for whom the defendant was said to be vicariously liable]. Whatever view her Honour reached exposed the [defendant] to an appeal on the basis of findings on evidence which was, on the primary judge's own assessment, incomplete so far as concerned the position of the [defendant].
One of the purposes of the limitation provision in s 58(2) is to protect beneficiaries of estates, and the Court system as a whole, from stale claims. In my view, much of the value of that protection may be lost if, once an extension application is made, it can only be dealt with after there has been a full trial on the merits.
Sometimes it may not be practicable to separate the extension application from the plaintiff's claim. Sometimes the "rule of convenience" to which the High Court refers may make it desirable not to do so. But in my view it would be wrong to adopt an inflexible practice of never hearing extension applications separately, no matter what the circumstances. I do not believe that the Court has adopted any such inflexible practice. I therefore reject counsel's opening submission.

Merits of separate hearing application

As already noted, the parties have taken the initial steps required under the Practice Note for the preparation of the case. But counsel for Mr Choras told me that the evidence in chief was not complete. Before the matter could be fixed for trial, therefore, Mr Choras' evidentiary case in chief would need to be completed. Mr Farmakidis' case and evidence in defence would need to be prepared and filed and then any evidence in reply.
In his affidavit Mr Farmakidis stated that there would be up to fourteen witnesses in the defence case. I thought it unlikely that as many as fourteen witnesses would be required. But there was no doubt, having regard to the issues I have recounted above, that a full hearing of Mr Choras' case would involve substantial disputes of fact and a trial would not be short. Hallen J, in fixing the mediation in these proceedings, estimated that the hearing would take three days. A full hearing would have been unlikely to take place before 2021. And if the Court were to deal with the two matters together but then refuse the extension application because of prejudice to Mr Farmakidis (as he was contending), on the authority of the Prince Alfred College case, it would have been wrong even to deal contingently with the merits of the case.
On the other hand, it was clear that a hearing of Mr Choras' extension application would be relatively short. As I have already recorded, it had been expected before the hearing on 21 February that, if the Court decided to order a separate hearing, it could proceed immediately and determined within a day.
There was no evidence at the separate hearing application which would allow the Court to put precise figures on the costs of a full trial of Mr Choras' claim. But it was clear that if Mr Choras was not entitled to an extension of time, dealing with the extension application in advance of the trial would result in very substantial savings to both parties, in both time and money.
It seemed to me that there were two further factors which made an early determination of the extension application particularly desirable in this case.
The first concerned Francis Farmakidis. He is defending these proceedings as trustee of the testamentary trust established under the deceased's will. As I explain in more detail when I deal with the extension application itself, he has a right of indemnity for the costs he is incurring against the assets of the trust, but the only available asset is the Concord property, which is occupied by Mr Choras. Mr Farmakidis is, for practical purposes, obliged to fund the defence of the proceedings out of his own pocket, at least until the claim is determined. This situation is unfair to Mr Farmakidis. The sooner it comes to an end, the better.
Another factor in favour of deciding the extension application now was the potential claim by James Farmakidis. Like Mr Choras he would need an extension of time to bring a claim. But if Mr Choras obtained an extension it is likely that an extension for James Farmakidis would follow. On the other hand, if Mr Choras failed in his extension application, Mr Farmakidis would be highly unlikely to obtain one of his own.
This meant that if Mr Choras' extension application were deferred until a trial on the merits, Mr Farmakidis would be forced to pursue his claim in a contingent way. All Mr Farmakidis' evidence on the merits of his claim would have to be prepared and presented at trial, with the risk that if Mr Choras' extension application were refused, Mr Farmakidis' claim would become nugatory. Mr Choras was obviously prepared to take this risk. But that did not mean that Mr Farmakidis and his advisors should be forced into the same position.
The foreshadowed claim by James Farmakidis would face obvious difficulties. He might not even be able to fund it. But Mr Choras could hardly complain about allowing him at least the opportunity to mount such a claim. Mr Farmakidis' apparently dire circumstances only make it more important that he should know where he stands as early as possible.
The pitfalls of separate hearings are well known. The Court approaches an application for such a hearing with caution, especially if it is contested as this one was.
Severability: A separate preliminary hearing may sometimes give rise to problems with the formulation of the precise questions to be answered, and the determination of the result which will follow depending on how those questions are decided. There can be particular difficulties where the separate questions involve facts to be assumed or agreed. The parties can be left arguing afterwards about what the answers to the questions mean.
But there was no such difficulty in these proceedings. It was clear that an extension was necessary and the onus lay on Mr Choras to put sufficient material before the Court to justify it. There was no question of having to agree or assume facts for the purposes of the application. It was also clear that if the extension were refused Mr Choras' claim would fail.
Overlap between preliminary and final hearings: If there would be an overlap between the issues to be determined at the separate hearing and the issues to be determined at the main trial (if one eventuates), that can be another objection to making a separate hearing order. Such an overlap raises the possibility of duplication and waste of costs. It can also mean that the judge who decides the separate questions cannot hear the trial (if one is still necessary).
Counsel for Mr Choras argued that this was a major problem with the present application. I therefore need to consider it in some detail.
Clearly the extension application would require evidence on some matters of fact. One was Mr Choras' explanation for his delay in bringing his claim. This would include the circumstances in which the 2011 Deed of Family Arrangement was entered into. Affidavits from Mr Choras and Mr Farmakidis addressed these matters. There was some disagreement between them as to the content of discussions which took place before the Deed was executed. There was also evidence from Mr Farmakidis alleging prejudice from the terms of his subsequent divorce settlement and from the unavailability of records.
Counsel contended that the factual canvas for the extension application would be wider than this. Counsel submitted that the Court would need to consider the prospects of Mr Choras' claim as a whole. Counsel for Mr Farmakidis had formally conceded that the claim was a viable one, but according to counsel for Mr Choras this was not enough. In counsel's submission, the Court was required to make some sort of assessment of the strength of the claim as part of the exercise of its judgment as to whether an extension should be granted.
I deal in more detail with counsel's submission when I come to consider the extension application itself. But it was not necessary to go into it in depth for the purpose of the separate hearing application. Where the court is confronted with an issue which must be resolved for the purposes of the extension application, it must of course make a factual finding on the issue. But otherwise the court is not required to make final findings on the merits of the claim. That would be self-defeating.
I was prepared to accept for the purposes of the separate hearing application that the Court might have to undertake some sort of assessment of the strength of Mr Choras' claim for the purposes of the extension application. But even so, any such assessment would not require the Court to make final findings on the merits of the claim. In my view, counsel's contention was unsound.
It seemed to me that Francis Farmakidis' allegations of prejudice from his divorce settlement and from the unavailability of records were unlikely to give rise to a significant factual debate, and certainly not a conflict of evidence between Mr Choras and Mr Farmakidis. At the time of the separate hearing application I thought there was room to argue about whether the events surrounding the Deed would be relevant to Mr Choras' substantive claim, but I assumed that, at least potentially, they would be. There was thus some potential for factual debate about Mr Choras' explanation of his delay in making his claim, and the events leading up to the execution of the Deed.
I accepted that separate hearings of the extension application and the claim itself would be somewhat more expensive than a combined hearing, if only because there would be no need to repeat matters of background. But I thought this was likely to be marginal. There was no doubt that the application for extension would need to be considered at some point, and the evidence and legal argument on the extension application would largely be distinct from the evidence and legal argument on the claim itself.
The potential did exist for the dispute about the events in 2011, and related challenges to Mr Choras' or Mr Farmakidis' credit, to be raised at two hearings. But this was only a possibility. It was unlikely to present any procedural problem. If I heard the extension application and granted it, I would not necessarily even be allocated the main hearing. And if for some reason my decision on the extension application made it inappropriate to do the main hearing, that could readily be accommodated. At worst, the overlap created the possibility of some duplication.
In the end, it was a matter of balancing the potential savings of time and cost to the parties if the extension application was refused (as well as the other factors to which I have referred) against the increased cumulative cost of two hearings if the extension application was to succeed. I thought the balance clearly favoured a separate hearing.
This conclusion has been confirmed by my experience of the hearing of the extension application. Mr Choras' affidavit was read but he was not cross-examined. Although Francis Farmakidis was cross-examined on his affidavit, it was not necessary to make any credit findings. I was able to dispose of the application without going into the areas of factual dispute between the parties. In the end, I concluded that the strength of Mr Choras' claim (once viability was conceded) was of little, if any, significance for the purposes of the application.

Extension application

A lot of the evidence which I had received on the separate hearing application remained relevant on the extension application, but some of it was relevant in a different way. In the extension application, the onus shifted to the plaintiff, Mr Choras. The Court also had to move beyond identifying what the issues would be in future hearings, and make findings of fact on some questions. For this reason, I required the parties to re-lead their evidence, and I dealt with its admissibility again, this time for the purposes of the extension application.
Some of the evidence in Francis Farmakidis' affidavit was in hearsay form. This led to a debate between the parties as to whether the proceedings were "interlocutory" for the purposes of the Evidence Act 1995 (NSW), s 75, which would allow hearsay evidence to be given.
I put to counsel for Mr Farmakidis that if there is a factual issue about a matter relevant to the determination of the extension application then the court makes a factual finding on that issue in the ordinary way. Counsel was unable to point to any authority to support the proposition that a hearing involving such findings is nevertheless "interlocutory" for the purposes of s 75. In those circumstances I proceeded on the basis that s 75 does not apply and hearsay evidence on such an issue is not admissible.

Execution of the Deed of Family Arrangement

Following the deceased's death, the estate's legal affairs were handled by a firm of solicitors called Giles Payne & Co. The solicitor responsible was Joseph ("Joe") Gilles. Francis Farmakidis was an employed solicitor with Giles Payne & Co at the time, but was not involved in acting for the estate.
In his affidavit filed in support of the summons (which was sworn in May 2019) Mr Choras said that following the deceased's death, he went to see a solicitor at Giles Payne & Co (not Mr Farmakidis). He was advised to get his own solicitor. Mr Choras said that he did so and was told by that solicitor that in some way something Mr Farmakidis was doing was "against the law". The affidavit is not clear about this, but the complaint seems to be that Mr Farmakidis had not provided a copy of "the deed of financials" (perhaps a reference to the inventory of assets) for the deceased's estate. Mr Choras said the solicitor he retained prepared a summons and served it on Mr Farmakidis. He could not recall the solicitor's name nor which law firm he was from.
Mr Choras' evidence was that after the summons was served he was asked by Mr Farmakidis to withdraw it, as otherwise Mr Farmakidis would lose his practising certificate. According to Mr Choras his response was that he did not want Mr Farmakidis to lose his practising certificate, but just wanted to talk to him about the deceased's estate. He said Mr Farmakidis promised that if the summons was withdrawn he would "go through it all with you". On the strength of this, Mr Choras agreed to withdraw the summons.
Mr Choras said that following the deceased's death he was lonely, depressed and lost a lot of weight. He said he was also very concerned about Mr Farmakidis losing his ability to practise as a solicitor. Mr Choras said this was not something the deceased would have wanted as she had been very proud of Mr Farmakidis' achievement in becoming a solicitor. Mr Choras also said that he was unable to read or write English "except very basic words".
Mr Farmakidis' evidence about the conversation was different. He said that shortly after the summons was served on him, he spoke to Mr Choras. He said that they had a conversation in the following terms: Farmakidis: What are you doing? Why are you suing me? You knew all the time what was going on. Choras: Are you my lawyer? You're not my lawyer! Farmakidis: You and mum had a deal. Why did you wait till just after she died to change it? Choras: Let's sell the house and each of us take our share. Farmakidis: No. That's not what mum wanted. You had a deal. Choras: Let's sell the house and each take our share. Farmakidis: No. This is wrong. Why are you doing this? Choras: What if I want to go to Greece? Farmakidis: I will talk to Joe.
Mr Farmakidis said that after he spoke to Mr Gilles he had another conversation with Mr Choras to the following effect: Farmakidis: I've talked to Joe. There is no issue if you want to rent the property. Tell Joe what you want or get your lawyer to tell Joe what you want, and we will work it out. Choras: I want to be able to rent the property and live in Greece if I need to. Farmakidis: I don't have a problem with that. Choras: I will talk to Joe.
In evidence is a letter from Greg Mackey, a solicitor, to Giles Payne & Co dated 15 February 2011. The letter stated: We have been contacted by Emanuel Choras, defacto partner of the late Mrs Farmakidis. Our client has shown us a proposed Deed of Family Arrangement. After discussing the matter with us he has agreed to the proposal and has signed the Agreement. … Our client believes that you will lodge a Caveat on his behalf to protect his life interest once the Deed has been signed. Would you kindly advise us if this is not the case.
It is clear from the terms of this letter that Mr Mackey cannot have been the solicitor who prepared and served the summons on Mr Farmakidis. The evidence did not identify who that solicitor was, or what relief was actually claimed in the summons (the parties agree that such a summons was served, although it may not have been filed).
Some further correspondence between Mr Mackey and Giles Payne & Co was in evidence. That correspondence shows that there was a slight amendment to the terms of the Deed in March. Mr Choras' caveat was prepared by Giles Payne & Co and signed by Mr Choras at some point. The caveat was lodged and the final version of the Deed was executed on 2 April. Copies were sent to Mr Mackey.
A file note by Mr Mackey dated 18 March 2011 was also in evidence. It stated: I asked him [Mr Choras] if he wanted to challenge the will on the basis that his wife lacked the capacity to make a will based upon her signature. He said that he did not, and was prepared to accept the settlement which his wife's sons had offered him.
In his May 2019 affidavit Mr Choras acknowledged the existence of the Deed of Family Arrangement. He said he had received a copy of the Deed but: I do not understand anything in this document nor can I recall ever signing such document. I cannot recall seeing this document before.
Mr Choras continued: I deny that I signed the deed on the agreement that I receive rent out of the property and live in Greece. I have not received any rent from the Concord Property. I am residing in the Concord House that has been my home for 35 years.

Mr Choras' decision to bring his claim

In Mr Choras' May 2019 affidavit, the only explanation offered for the delay in making his claim was: I never considered at the time what would happen if the house became too much for me. It was only recently that I realised I need to downsize.
Then in an affidavit sworn in February this year, Mr Choras stated: About 5-6 weeks before the summons was filed in this matter I met with a solicitor from my current solicitors to obtain advice about Sylvia's Will and my rights. I do not waive privilege over the advice I was given but during that conversation I became aware I could make an out of time application for a family provision claim. I instructed my lawyers to prepare and file the summons during or shortly after that conference.

Francis Farmakidis' property settlement

According to his evidence, Francis Farmakidis' marriage broke down in 2011. In December 2013 the Family Court made consent orders for division of the matrimonial property between himself and his ex-wife.
The settlement proceeded on the basis that the shared assets of Mr Farmakidis and his ex-wife were worth about $1.6 million. This included Mr Farmakidis' interest in the Concord property under his mother's will trust. Under the settlement, Mr Farmakidis received 40 per cent of the shared assets and his ex-wife received 60 per cent. Mr Farmakidis' share was made up of about $250,000 in cash, $45,000 in superannuation and his interest in the Concord property, which was allocated a value of $350,000 for the purposes of the settlement. His ex-wife received about $950,000 in cash and $20,000 in superannuation. This division required Mr Farmakidis to pay his ex-wife $215,000, which he did.

Availability of documentary evidence

There was evidence before me from Mr Farmakidis about whether documents which would be relevant to Mr Choras' claim still exist. That evidence concerned five classes of documents.
First, Mr Farmakidis made enquiries of the three firms of solicitors who between them acted for the deceased on the sales (and one of the purchases) of the deceased's investment properties (see [27] above). No documents were obtained. Two of the firms confirmed in writing that their files were no longer available. Mr Farmakidis said in his affidavit that he was told the same thing by the third firm, but counsel for Mr Choras successfully took a hearsay objection against that evidence.
Second, Mr Farmakidis said in his affidavit that he was told by the deceased's former accountant that he no longer had any of her records. This too was successfully objected to.
Third, Mr Farmakidis said that he "believed" that the deceased's banking records would not be available. He said that he nevertheless intended to subpoena her bank for records from 1986 onwards. I rejected his evidence of belief as it was inadmissible.
Fourth, Mr Farmakidis said that he asked his brother James for medical records concerning the alleged assault on James by Mr Choras, and was told that James had asked the hospital but there were no records available. Mr Farmakidis also said that he "believed" that his own medical records from when he was a child would no longer be available. I also rejected this evidence.
Fifth, there were electronic copies of some of the documents from Giles Payne & Co's file, but Mr Farmakidis said that he had been told that the paper file no longer existed. Again, counsel for Mr Choras successfully objected to that evidence.
Mr Farmakidis' solicitors also served a notice to produce relevant documents on Mr Choras' current solicitors, PK Simpson & Co ("PKS") in February. The notice required production of financial, employment, tax, government support, and travel records for the period from 1 July 2000 up to 31 December 2013. It also required production of Mr Choras' medical records from 1982 to 1990 and records of any communications between Mr Choras and Mr Mackey, or any other solicitor, from October 2010 to March 2011.
In response, PKS produced Mr Choras' 2016 and 2019 payment summaries from Centrelink (which post-dated the period covered by the notice) and an incomplete series of Mr Choras' bank statements. No documents were produced in response to the requests for medical, travel, tax and employment records.
In response to the requests for solicitors' communications between October 2010 and March 2011, PKS produced some documents from Mr Mackey. No documents concerning communications with the other solicitor were produced. In an email Mr Mackey said: My file was destroyed in 2018. I have been able to retrieve some documents stored electronically and they are attached. I cannot now say whether these represent all of the documents which were originally in the file. Apart from these documents, I have no independent recollection whatsoever of this matter, or of Mr Choras.

Applicable principles

Section 58(2) of the Act provides: An application for a family provision order must be made not later than 12 months after the date of the death of the deceased person, unless the Court otherwise orders on sufficient cause being shown or the parties to the proceedings consent to the application being made out of time.
This provision is comparable to limitation provisions which apply to personal injury claims and allow the usual, fixed, limitation period to be extended by the court in certain circumstances. The principles applicable to such extension provisions in personal injury cases were authoritatively discussed by the High Court in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. I discussed the application of those principles to family provision proceedings in Tanev v Tanevski [2017] NSWSC 1301.
In Brisbane South, a number of general justifications were identified for limitation periods. One is to protect defendants, and the court system generally, against the difficulties of dealing with claims long after the events to which they relate. Another is to allow defendants to conduct their affairs on the basis that after a certain period of time they are free from claims (186 CLR at 552).
The period prescribed by s 58(2) is relatively short. No doubt that is based on the need to avoid administration of the deceased's estate, and its distribution to beneficiaries, being delayed (the second of the justifications referred to above). But protection against stale claims can also be important. Given the long delay in bringing these proceedings, it is a significant factor in the present case.
Another feature of the High Court's decision in Brisbane South was that it emphasised the importance, in deciding whether to permit the time to be extended, of the prejudice that the delay might cause to the defendant. The fixed limitation period is the rule and an extension is exceptional (186 CLR at 553).
This means that in an extension application, the focus of the court's concern is on the defendant. The defendant has an accrued immunity from the plaintiff's claim. The defendant does not need to justify that immunity: it is up to the plaintiff to demonstrate some good reason to take it away. In particular, if the plaintiff fails to establish that the defendant is not prejudiced by the delay, then an extension should not be granted.
In turn this affects the onus of proof. As I pointed out in Tanev v Tanevski at [107]-[112], Brisbane South establishes that once a defendant has raised the possibility of prejudice arising from the delay, the onus is on the plaintiff to show that the defendant will not in fact suffer prejudice: see also Prince Alfred College at 164 [99].
In my view, the same approach applies when an extension is sought under s 58(2). The contrary was not argued.
The enactment which applied in Brisbane South provided for an extension of time if the plaintiff later became aware of a material fact of a decisive character. If that condition was satisfied, then the court had a discretion to extend the time. The legislation thus explicitly provided for a two- stage approach, the question of prejudice to the defendant being dealt with at the second, discretionary, stage.
The predecessor to s 58(2), FPA s 16, had a similar structure. It relevantly provided: Time for application for provision … (2) An order under section 7 shall not be made unless the application for the order is made within the prescribed period in respect of that application or within such further period as the Court may, having regard to all the circumstances of the case but subject to subsection (3), by order, allow. (3) The Court may not make an order under subsection (2) allowing an application in relation to a deceased person to be made after the end of the prescribed period unless: (a) the parties to the proceedings concerned have consented to the application being made after the end of that period, or (b) sufficient cause is shown for the application not having been made within that period. …
It has been said that under s 58(2) and its predecessors, there are at least three relevant factors which may need to be taken into account in deciding whether to grant an extension. These are: (1) the explanation for the plaintiff's delay; (2) prejudice to the defendant arising from the delay; and (3) the strength of the plaintiff's claim.
In Tanev v Tanevski [2017] NSWSC 1301 I had to consider an application for an extension under FPA s 16. For the purpose of my analysis, I adopted a two-stage approach, equating the adequacy of the defendant's explanation (factor (1) above) with the threshold requirement of "sufficient cause" in s 16(3) and treating other factors as going to a second, discretionary, stage under s 16(2).
But the present case arises under s 58(2) and counsel for Mr Choras pointed out that s 58(2) is differently worded. It speaks of "sufficient reason" but does not, in terms, refer to an additional discretion; indeed the word "may" does not appear at all. This led to a question about whether the two-stage approach should be adopted in the present case.
In Verzar v Verzar [2014] NSWCA 45, discussed below, the Court of Appeal treated the strength of the plaintiff's claim (factor (3)) as going to whether there was "sufficient cause". I should therefore adopt the same approach. But it seemed to me that this makes little, if any, practical difference. It was not suggested that the factors which I have identified do not remain relevant.

Explanation for delay

I have already set out the evidence given by Mr Choras by way of explanation for the delay in bringing proceedings. In summary, Mr Choras made two points: (1) he only recently decided that he wished or needed to downsize from the Concord property; and (2) he only recently learned that the Court has power to grant an extension of time for family provision claims.
But Mr Choras did not merely fail to bring his claim within the time allowed under s 58(2). He entered into the Deed of Family Arrangement. I think the Deed has a dual significance for the purpose of the present extension application. First, it provides factual context against which Mr Choras' explanation for the delay must be assessed. Secondly, it constitutes a statement of position on which the other parties, at least on the face of it, were entitled to rely. I will deal with the latter aspect when I deal with prejudice, below.
Counsel referred to Mr Choras' evidence that he had limited ability to understand and read written English. He also referred to Mr Choras' evidence of pressure from Mr Farmakidis to abandon the summons which Mr Choras' first solicitor had served on him. Counsel went so far as to suggest that Mr Farmakidis was himself guilty of unconscionable conduct in taking advantage of Mr Choras in this regard.
Counsel pointed out that there was no cross-examination of Mr Choras on this evidence. Counsel invoked the rule in Browne v Dunn (1893) 6 R 67.
An initial difficulty with counsel's argument is that it is hard to make sense of Mr Choras' account of events. That account suggests that initially his complaint (presumably reflected in the summons served on Mr Farmakidis) was that Mr Farmakidis was not providing information to him about the assets of the estate. There is no support for this elsewhere in the evidence. And if that really was the problem, it is hard to see why the Deed of Family Arrangement would have come about.
Counsel for Mr Choras themselves invited the Court to conclude that Mr Choras was wrong on this point and that (consistently with Mr Farmakidis' account, which counsel otherwise urged the Court to reject as false) the summons actually claimed relief in the nature of family provision. But if that was so it is hard to see how the making of such a claim against Mr Farmakidis would be any threat to his practising certificate.
Whatever may have happened with the summons, both parties agree that it pre-dated the Deed. By reference to Mr Mackey's letter, this means that the service of the summons and the conversations between Mr Choras and Mr Farmakidis must have taken place before mid-February.
The Deed thus stands as a solemn statement by Mr Choras that he considered that he had received sufficient provision from the deceased's estate. As such, I think it required explanation from Mr Choras, as part of his explanation of his delay in bringing his provision claim.
The evidence does not sustain the suggestion that Mr Choras entered into the Deed as a result of some sort of unconscionable behaviour on the part of Mr Farmakidis. Whatever may have been said beforehand, by the time Mr Choras entered into the Deed he had Mr Mackey acting for him. He was not subject to influence from Mr Farmakidis and there is no reason to think that he was labouring under any misapprehension created by anything Mr Farmakidis may have said.
Mr Mackey's file note of 18 March 2011 only referred to advice concerning a claim of lack of testamentary capacity. But the Deed contained an express release of any family provision claim under the Act and I think the Court must proceed on the assumption that a competent solicitor in Mr Mackey's position would have advised Mr Choras of his rights in this regard. The onus of demonstrating to the contrary lay on Mr Choras. Not being able to recall anything about his dealings with Mr Mackey, or his entry into the Deed, he was in no position to discharge that onus. It was not suggested that Mr Choras was unable to understand spoken English, or lacked the capacity to give instructions (whether in the present proceedings, or to Mr Mackey).
Counsel for Mr Farmakidis submitted that Mr Choras' downsizing explanation did not make sense. Counsel pointed out that the Deed itself allows for a type of downsizing, in that it allows Mr Choras to rent the property out (and thus live on the proceeds of the rent).
There is force in this submission. It may be that the real reason for this application is that Mr Choras hopes to obtain full ownership of the property, or that the accommodation he has in mind is more expensive than the rent he can derive from the property will allow. But he was not cross-examined on this, or on any other issue.
In the end, I do not need to go to the full length of counsel's submission. The point is that, whether or not Mr Choras' current circumstances were foreseen at the time, they were foreseeable. At the time of the deceased's death Mr Choras was 72 years old, living alone in a multi-bedroom house. In my opinion a belated recognition, seven years later, that he cannot continue to live in the house indefinitely is an inadequate explanation for the delay in bringing the proceedings in the meantime.
I would have reached this conclusion even if the parties had not entered into the Deed of Family Arrangement. Entry into the Deed only makes the conclusion stronger.
Against this background, Mr Choras' evidence that he was advised only recently that he could apply for an extension of time (if that is the correct interpretation of his evidence on this point) goes nowhere. There is no evidence from Mr Choras that he ever considered making a claim at some earlier point. In my opinion this advice is merely a consequence of the delay and cannot be an explanation of it.

Prejudice

In a case where a beneficiary has spent money received from the estate which the plaintiff wishes to claw back, the prejudice in a late claim is clear and is usually a complete answer to the claim: see for example Underwood v Gaudron [2015] NSWCA 269. Counsel for Mr Choras pointed out, however, that Mr Choras' claim concerned only the Concord property. That property has been in Mr Choras' possession since the deceased's death and for practical purposes no interest in the property has yet vested in Francis and James Farmakidis. No claim is made to the $150,000 which was received from the deceased's superannuation and distributed to the Farmakidis brothers. Counsel went so far as to suggest that the delay had worked to their advantage in that regard.
I think that this is not a complete view. It leaves at least four matters out of account.
The first matter is Mr Choras' entry into the Deed. As already noted, this represented a clear abandonment by Mr Choras of any claim for provision. A deliberate decision not to pursue a claim is, of itself, a weighty factor against the later grant of an extension; when accompanied by prejudice it must be an even stronger one: Prince Alfred College at 167 [106]-[107].
In the present case, preparation and execution of the Deed would have cost money. More importantly, the Deed involved making concessions to Mr Choras. Had he made a claim under the Act instead, that claim might have failed, leaving him less favourably placed than under the Deed. It is even conceivable that Francis Farmakidis or James Farmakidis could have made a successful claim which would have reduced the provision in favour of Mr Choras.
The Court cannot know what the outcome would have been. But in my view it is not necessary to know the outcome. This is one of those cases where the prejudice is real despite the difficulty in putting a figure on it: see, in a similar context, Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd (2014) 253 CLR 560 at 598 [84].
Had I taken a different view of the facts and concluded that Mr Farmakidis had exercised some sort of undue influence over Mr Choras, that might have prevented Mr Farmakidis from relying on entry into the Deed as a source of prejudice. But that would not have made the Deed irrelevant. James Farmakidis was party to the Deed in his own right. It is not suggested that he (or Mr Gilles on his behalf) was privy to any of the alleged conduct by Francis Farmakidis.
The effect of the Deed was that James Farmakidis abandoned any challenge he might have made to the provision in the will. It was a compromise between James Farmakidis and Mr Choras, which gave Mr Choras something more than he had under the will, just as much as it was a compromise between Francis Farmakidis and Mr Choras. On any view, therefore, entry into the Deed represented a prejudice to James Farmakidis.
The second matter to be considered is Mr Farmakidis' family law settlement. The evidence establishes that the settlement was based on Mr Farmakidis having a half share in what was in effect a remainder interest in the Concord property in accordance with the terms of the Deed of Family Arrangement. Mr Farmakidis made a cash payment to satisfy his ex-wife's entitlement to the matrimonial pool on the assumption that he had such an asset.
The result of Mr Choras bringing his application now would be to expose Mr Farmakidis to the risk that, if the claim succeeds, his interest in the Concord property will be diminished in value, or even extinguished, so as to make provision for Mr Choras. There will also be costs which presumably will have to come out of that property, win, lose or draw.
It might be said that there is an element of speculation in trying to identify what would have happened so far as the family law settlement was concerned had Mr Choras brought a provision claim in time. The Court is not able in these proceedings to make any confident assessment about whether such a claim would have succeeded and if so what effect that would have had on Mr Farmakidis' interest in the Concord property. Nor can the Court make any assessment of what consequential effect that would have had on the settlement. At the time the settlement was undertaken, the valuation of the remainder interest must have been somewhat speculative. It depended on how long Mr Choras would live.
But I do not think this uncertainty makes any difference. Again, there is a real prejudice despite the difficulty in putting precise monetary value on it.
In similar vein, counsel referred to the Court's powers under s 66(2). No doubt the Court would do its best to do justice to Mr Farmakidis. But this can hardly be a panacea. The Court's powers are confined to the estate's assets. It is not easy to see how the Court could, with any pretence of accuracy, make an adjustment in Mr Farmakidis' favour to account for the effect of entering into the settlement with his ex-wife more than seven years ago.
I have already rejected the submission that Mr Farmakidis procured the Deed of Family Arrangement by taking advantage of Mr Choras. But counsel pointed to Mr Farmakidis' evidence in cross-examination that he was aware that the release was not effective for the purposes of s 95 unless it had been approved, that there was provision in the Deed for it to be approved, but that it was not approved. The suggestion, as I understood it, was that in these circumstances Mr Farmakidis could not claim to have been prejudiced by Mr Choras subsequently seeking to make a claim contrary to the provisions of the Deed.
I do not find this submission persuasive. If Mr Choras had never made a claim, and the Deed had never been executed, prejudice from subsequently entering into the family law settlement could hardly have been gainsaid. Why should the fact that Mr Choras gave a release (albeit unenforceable without approval from the Court) make any difference? By the time of the family law settlement Mr Choras had taken no action and the limitation period had expired in the meantime. In my opinion, Mr Farmakidis' claim of prejudice based on entry into the settlement is established.
The third matter concerns the costs of defending the proceedings. The terms of the testamentary trust under the deceased's will (as modified by the Deed) require Mr Farmakidis as trustee to ensure the continued availability of the property so that Mr Choras can live there (or rent the property out). Mr Choras is required to contribute to the costs of maintaining the property (or at least some of them), but not to other costs of administering the trust. There are no other assets in the trust to cover any such additional costs.
Where a trustee is acting gratuitously, the trustee's right of indemnity will be zealously enforced: see Macedonian Orthodox Community Church St Petka Inc v Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66 at 93 [69]. There can be no doubt that the costs of defending the proceedings are a proper charge to the trust. Mr Farmakidis is obliged to defend Mr Choras' entitlements under the trust, even when the attack comes from Mr Choras himself. But, although entitled to indemnity, Mr Farmakidis holds no available assets as trustee from which the entitlement can be satisfied.
On any view this state of affairs will continue until Mr Choras' claim is determined. Indeed, should the claim fail, it would apparently continue right up until Mr Choras' death. Mr Choras might be ordered to pay the costs of the proceedings, but if he had no ability to meet those costs (and in his evidence on this application he said that he would not) then there would be no recourse for the shortfall. Even if Mr Choras were to be bankrupted for failure to pay the costs, his rights under the testamentary trust would continue.
Leading counsel for Mr Choras argued that the position was not as dire as this. In his submission, the solution was in Mr Farmakidis' own hands. He argued that under the Deed Mr Farmakidis would be entitled to sell the property so as to meet the costs of defending the proceedings.
This was a strange argument coming from somebody acting for Mr Choras. If correct, it would mean that Mr Farmakidis could sell the property now. Mr Choras would have to find somewhere else to live until the trial of his claim. But as soon as I put this scenario to counsel it became apparent that Mr Choras has no intention of vacating the property. Counsel spoke of opposing any application by Mr Farmakidis to the Court to sell the property. When I put to him that on his argument no such application was necessary, he spoke of seeking a stay on any order for possession, or of seeking an injunction. He also spoke of an order for interim provision (s 62 of the Act).
Whether counsel is correct in his submission that the Deed permitted the sale of the property was not fully argued before me. On what has been put to me, I can see nothing in the Deed which would entitle Mr Farmakidis to sell the property so as to recoup costs for which Mr Choras is not liable. But even if Mr Farmakidis were entitled to sell the property to meet the costs of defending the claim, any attempt to do so at this stage will be vigorously resisted.
A possible solution to the problem would be an application to have the Court exercise its power under the Trustee Act 1925 (NSW), s 81, to approve a restructuring of the trust property. Thus for instance, the Court might be asked to sanction a scheme under which the Concord property is sold and a less valuable property acquired for Mr Choras to live in, thus freeing up monies so as to pay any expenses of the trust which cannot be recouped from Mr Choras. Of course that has its own complexities and costs. But whatever might be possible after these proceedings have been resolved, I think that the attitude displayed by Mr Choras makes it fraught with difficulty at this stage.
All of this shows that, while it is wrong that Mr Farmakidis should have to dip into his pocket to meet the costs of defending Mr Choras' claim, it is quite understandable that he has done so up until now. I reject the suggestion that there is a simple solution available to Mr Farmakidis to avoid the unfair position in which he finds himself as a result of Mr Choras' claim.
Of course, if Mr Choras had begun proceedings in good time, all of this would have been avoided. Any costs of defending a claim by Mr Choras (to the extent not recovered from him) would have been met out of the deceased's other assets and, if necessary, out of the Concord property itself. Mr Farmakidis would have had no obligation to fund the costs himself. In my opinion, this is a clear instance of prejudice resulting from the delay in bringing the proceedings.
The fourth factor is prejudice in conducting the defence of the proceedings.
This factor was a critical one in the High Court decision in Brisbane South. I analysed the relevant parts of the High Court judgment in Tanev v Tanevski at [115]. In this context, prejudice does not require demonstrating that there is missing evidence which would definitely have affected the result. Rather, prejudice occurs in such a case if the defendant has been deprived of access to documents and witnesses relevant to a defence of the plaintiff's claim.
Earlier in my judgment, I referred to the documentary material which would, if it still existed, be relevant to Mr Choras' claim. Some of those records related to events which took place long before the deceased's death. For instance, sales of the investment properties all took place more than seven years before the deceased died. Records of those sales may have ceased to exist before her death, in which event there would be no relevant prejudice from the delay in Mr Choras bringing his claim.
But I think it is clear enough that if Mr Choras had brought his claim promptly, there would then have been relevant records then in existence. This would have included the deceased's and Mr Choras' financial records for the seven years or so prior to the deceased's death (say from the 2003/2004 financial year onwards). Those records would have been relevant to Mr Farmakidis' case that the deceased had already made provision for Mr Choras and he was storing money away in Greece.
Counsel for Mr Farmakidis also pointed to the absence of records concerning the negotiations which led to the Deed of Family Arrangement as a source of prejudice. Initially I was not sure whether the events leading up to the Deed of Family Arrangement were themselves relevant to defending the claim. But on reflection, I am satisfied that they are. The terms of the Deed support Mr Farmakidis' case that Mr Choras had been left with adequate provision taking into account monies paid by the deceased and his own assets. Evidence of the negotiations, and in particularly the instructions which Mr Choras gave to Mr Mackey, could have made that case even stronger.
Counsel for Mr Choras submitted, in a general way, that the evidence before me did not establish that this material was not available. I think that submission goes too far. The evidence does establish that certain categories of evidence are not available. One example is the financial records of Mr Choras for the seven years or so prior to the deceased's death. The evidence also establishes that Mr Mackey has destroyed his file. I think I can also take judicial notice of the fact that banks do not usually retain records after more than seven years, so the deceased's banking records would also be unavailable.
It is true that there are certain classes of documents (for example Giles Payne's file) which the evidence does not affirmatively prove to be unavailable. But the onus lies on Mr Choras, provided that Mr Farmakidis has done enough to raise an evidentiary onus on this issue.
In Tanev v Tanevski little effort had been made by the defendant to identify missing documents. But this case is different. Even though some of the evidence was ruled inadmissible, I think that Mr Farmakidis' evidence was sufficient to show that there were categories of documents which were relevant and, at least potentially, no longer available. In such circumstances, the onus lay on Mr Choras to negative prejudice by demonstrating that the documents were still available (or, perhaps, that if unavailable, they would have made no difference). He has failed to do so.
There is also the problem of the fading of the recollection of relevant witnesses. I referred to this factor in Tanev v Tanevski at [123]-[125]. I concluded that even without specific instances of fading memory being identified in the evidence I could be satisfied that there would have been prejudice from fading recollection generally. I think the same applies in the present case.
For these reasons, Mr Choras has not satisfied me that delay has not prejudiced Mr Farmakidis' defence. In fact I am satisfied that it has. This is another category of established prejudice.

Strength of claim

As already noted, counsel for Mr Farmakidis conceded for the purpose of the proceedings that Mr Choras' claim is a viable one. But counsel for Mr Choras argued that it was not sufficient for the Court merely to note this concession. In counsel's submission, the Court had to go on and make some sort of assessment of the strength of the claim as a relevant factor in deciding whether "sufficient cause" had been shown for an extension.
For the purposes of this argument, counsel relied on the decision of Meagher JA, speaking for the Court of Appeal in Verzar. His Honour said at [33]-[34]: 33 There are at least two respects in which the strength of the application sought to be made out of time may be relevant to whether there is "sufficient cause" to extend the time for making it. The first is whether the application as made has sufficient prospects of success to justify an extension. That assessment should be of the application viewed at the time it is or is likely to be heard because of the provisions of s 59(1)(c) and (2). ... 34 The second respect in which the strength of the application may be relevant is if allowing the out of time application to proceed would or may have the effect of improving the applicant's position from that which would have obtained had the application been made in a timely manner. That is the consideration referred to by Tobias JA in Durham v Durham at [24], [37] when confirming the correctness of the approach adopted by the judge in that case and by Bryson J in Davison v Staley (unreported, Supreme Court of NSW, 21 August 1996). ...
In the first of these paragraphs, his Honour was saying that if a claim is assessed by the court as weak, that weighs against a conclusion that there is "sufficient cause" to extend time to allow it to proceed. In the second paragraph, his Honour was saying that if the claim was weak at the time of the deceased's death but subsequent events have made it stronger, that is a factor telling against the grant of an extension.
Counsel fastened on the first proposition. Counsel argued that if the weakness of the claim is a factor against the grant of an extension then it followed that a strong claim should be a factor in favour.
Counsel argued that the present case was a strong one. In counsel's submission, the courts would virtually automatically accept that a mere right of occupation was an unsatisfactory level of provision for a de facto spouse in a relationship which had lasted for decades.
I do not accept the premise of counsel's argument. I do not think it is the case that Mr Choras' claim is clearly a strong one. In fact the outcome of the claim appears to me to be critically dependent on the disputed issues of fact in the proceedings, especially the degree of provision which was made by the deceased for Mr Choras prior to her death. All of this only emphasises the significance of the prejudice to which I have already referred.
There is no dispute that if the claim is a weak one that is a factor which tells against there being "good reason" to allow the proceeding to continue. This fits comfortably with the basic principle that it is for the plaintiff to show that there is a good reason to expose the defendant to a claim. But the converse proposition put by counsel does not follow at all. There is no reason why, if the plaintiff has failed to give an adequate explanation for delay in bringing the claim, a belief on the Court's part that the plaintiff's claim is a strong one should somehow make up for the lack of adequate explanation. Similarly, it is difficult to see why the strength of the claim should displace prejudice to the defendant from the delay. Even if I accepted counsel's premise, I would not accept that the strength of the claim is a relevant factor for present purposes.

Conclusions and orders

Taking the above matters together, I am not satisfied I should grant the extension. In my view the lack of satisfactory explanation for Mr Choras' delay in bringing the proceedings is sufficient, in itself, to require a refusal of the application. But if I had thought the explanation sufficient, Mr Choras has not demonstrated that his claim can proceed without prejudice to Mr Farmakidis. In fact I am satisfied that such prejudice exists.
For these reasons I must refuse the extension application. As a result Mr Choras' claim for family provision cannot succeed and the proceedings as a whole must be dismissed.
I see no reasons why costs should not follow the event. I propose to order Mr Choras to pay Mr Farmakidis' costs of the proceedings. Any application for any different order can be made in accordance with the Rules.
The orders of the Court are:
Order that the plaintiff's application for an extension of time to bring the claim under s 58(2) be refused.
Order that the proceedings be dismissed.
Order that the plaintiff pay the defendant's costs of the proceedings.

Amendments 29 July 2020 - amend typographical error at [111] and [140] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 July 2020

Family Provision Act 1982(NSW)

Act, the Family Provision Act 1982(NSW)

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