By his last will, dated 1 March 1984, the deceased had appointed the respondent as his executrix and major beneficiary. These circumstances were known to the parties, and clauses 30 and 35 of the contract respectively provided:

"30. The parties hereto acknowledge that the relative Certificate of Title is still registered in the name of the deceased Albert Edward Sheppard. The Vendor covenants that she will use her best endeavours to become registered as proprietor of the subject land as soon as is reasonably practicable. In the event that the Vendor is not so registered as proprietor on or before the date for completion [4 March 1986], the parties hereto agree that the date for completion shall be extended until the expiration of the period of fourteen (14) days notice in writing for the Vendor to the purchaser that the Vendor is so registered as proprietor. The Vendor shall keep the Purchaser fully informed as to the progress of the Vendor obtaining a grant of Probate of the will of the said deceased and becoming registered as proprietor aforesaid.

35. This contract is conditional upon the Vendor obtaining a grant of Probate of the will of the Registered Proprietor of the subject land in her favour on or before 1 June 1986. In the event that such grant is not so obtained either party hereto may cancel this Contract and upon such cancellation all monies paid hereunder on account of the purchase price (other than rent under Clause 32 hereof) shall be refunded in full to the Purchaser and this Contract shall be thereby discharged."

Prior to the signature of the contract, there had been communications between the respondent's solicitors and the solicitors for one Donald Burningham, who on 3 March 1986 filed a caveat in the Supreme Court against the grant of probate in respect of the will dated 1 March 1984. Burningham claimed an interest under an earlier will, and asserted that the deceased lacked testamentary capacity when he made the will dated 1 March 1984 and that the respondent had exerted undue influence.

A writ claiming probate in solemn form was issued against Burningham on 8 January 1987, and a Statement of Claim and an Affidavit of Scripts were served on 12 February 1987. Burningham's Defence and Counterclaim was delivered on 7 April 1987 and his Affidavit of Scripts was served on 24 April 1987. The respondent's Reply and Answer and a Notice requiring discovery were served on 19 May 1987. On 22 May 1987, Burningham's Notice requiring discovery was served. The respondent's affidavit of documents was served on 23 June 1987 and Burningham's affidavit of documents was served on 10 August 1987.

There is no suggestion that the respondent had not kept the appellant "fully informed as to the progress of the [respondent] obtaining a grant of Probate ...", as required by clause 30 [of the contract] and there were agreed extensions of the date specified by condition 35. On 26 November 1987, the parties substituted 1 June 1989 as the date "on or before" which the respondent was to obtain probate, failing which either party could "cancel" the contract. Despite the absence of a plea of waiver or estoppel, events up to 26 November 1987 have no ongoing relevance in view of the parties' further extension of time at that point knowing what had occurred. However, by clause 30 of the contract, the respondent was required to "use her best endeavours" to obtain probate and "become registered as proprietor ... as soon as is reasonably practicable." If probate had not been obtained by 1 June 1989 despite the respondent's "best endeavours", then the contract could be cancelled. Implicitly, the parties seem to have assumed that 18 months was sufficient to conclude the probate action, which had already proceeded to the stage of discovery. In fact, it took slightly more than twice that length of time.

The respondent did not obtain probate until 10 December 1990. Meanwhile, the respondent purported to "cancel" the contract by letter dated 18 October 1989. It was accepted that she could only have effectually done so if she was not, at the time, in breach of her obligation to "use her best endeavours to obtain probate .. as soon as is reasonably practicable."

There were two bases upon which the respondent substantially placed her case.

One proposition was that the respondent (i) "was required to do no more than she could reasonably do in all of the circumstances to achieve the contractual objective" and (ii) had done all that was required of her by retaining apparently competent solicitors and counsel and was not responsible for any delays or errors by them which increased the time needed to obtain probate. The first part of this submission is substantially correct: "... an obligation to use best endeavours does not require the person who undertakes the obligation to go beyond the bounds of reason; he is obliged to do all he reasonably can in the circumstances to achieve the contractual object, but no more." Hospital Products Ltd v. United States Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41, 64 per Gibbs CJ; see also 91-92 per Mason J; 143-144 per Dawson J; Hawkins v. Pender Bros Pty Ltd (1990) 1 Qd R 135, 151-152. However, so far as the second part of the submission is concerned, the better view is that, as between the appellant and the respondent, she is responsible for the conduct of her lawyers: cf Commercial and General Acceptance Ltd v. Nixon [1981] HCA 70; (1981) 56 ALJR 130; McKenna v. McKenna [1984] VicRp 58; (1984) VR 665. She would have breached her obligation to use her "best endeavours" if those representing her failed to prosecute the probate action diligently.

The second proposition for the respondent was that, in any event, it did not appear that it was because of the failure of the respondent to use her "best endeavours", that probate was not obtained by 1 June 1989. During the course of argument, two approaches to this second issue were debated. On one view, the question to be asked is whether the conduct of the respondent was the sole, or at least the dominant, cause why probate had not been obtained by 1 June 1989. On an alternative view, the question is whether the conduct of the respondent was a significant contributing factor: cf Gange v. Sullivan [1966] HCA 55; (1986) 116 CLR 418; Perri v. Coolangatta Investments Pty Ltd (1982) 149 CLR 537, 567.

Some support for the former view may, perhaps, be found in dicta in Nina's Bar Bistro Pty Ltd v. M.B.E. Corporation Pty Ltd (1984) 3 NSWLR 613. See also Italo-Australian Club Ltd v. National Australia Bank Ltd (1989) NSW Conv.R. 55-461. However, those cases do not authoritatively establish that it must be shown that the respondent's breach was the sole cause of her failure to obtain probate by the agreed date. Rather, a "but for" test should be adopted. Would probate probably been obtained by 1 June 1989 "but for" the respondent's omission to use her "best endeavours" to do so; or, in other words, if she had used her "best endeavours", is it more probable than not that probate would have been obtained by that date?

A practical assessment of what could have been achieved is called for. Four points in particular merit emphasis. Firstly, it was inevitable that some time would be taken by the respondent's lawyers, whoever they were: there is no doubt but that competent, experienced lawyers would have had other commitments, making other demands on their time. Secondly, changing lawyers because of the time being taken would have been a risky and expensive course by no means certain to produce a reduction in the time needed: the new lawyers would have had to familiarise themselves with the dispute from the beginning, and experience suggests that, while there might have been an initial flurry of activity, they also would have taken some time for the various steps required. Thirdly, neither party to litigation is fully able to control its course and how long is taken: to some extent each party must react to the actions of the other, who may be dilatory or obstructive and, to a limited extent, the parties are also affected by the Court and its processes. Fourthly, in assessing reasonableness, it is appropriate to take into account the cost of legal proceedings in determining whether it was reasonable to allow Burningham time rather than make applications to the Court.

During the crucial period from 26 November 1987 to 1 June 1989, there were frequent communications between the respondent (or her husband) and her solicitor, many of which seem to have been requests for information and/or action in the proceeding in which probate in solemn form was claimed. In addition, according to a chronology with which the Court was provided, the following took place:

Telephone attendance on Mr D Boughen of Counsel o.h.c. regarding possible conflict of D Garrick, also regarding insertion of documents, he suggested after inspection of documents that a brief be delivered re Interrogatories, also that we should list all documents in respect of which we claim privilege, then we submit Certificate of Readiness, when signed and returned we file Entry of Trial or Notice of Trial and then goes into callover list

Attending on mutual inspection of documents at office of Defendant's solicitors in Brisbane and requesting copies of certain of their documents

Perusing letter from Defendant's solicitors enclosing copies of documents requested at time of inspection and advising they obtaining instructions as to whether or not letter from Dr Agnew is privileged or not

Mrs Egan makes written complaint about delay to Queensland Law Society

Perusing letter from Defendant's solicitors claiming privilege in respect of the letter sent by Dr Agnew to Welsh solicitors

Drawing and engrossing draft letter to Defendant's solicitors in reply

Brief to Mr D Boughen of Counsel to settle draft letter to Defendant's solicitors regarding privileged matters, draft letter to Defendant's solicitors requiring further discovery in respect of those documents in respect of which the Defendant claims privilege, draft Interrogatories, advise whether we could require the Defendant to sign a Certificate of Readiness and an application for speedy trial at that stage

Telephone attendance on Mr D Boughen of Counsel regarding various matters referred to in brief, when he advised that if he considers Interrogatories are appropriate then cannot request Certificate of Readiness to be signed

Telephone attendance on Counsel's Chambers - he in court - left message that matter becoming urgent

Telephone attendance on Mr D Boughen of Counsel - when advised he in conference - left message for him to call

Telephone attendance on Mr D Boughen of Counsel regarding possible conference with client and husband when he advised that he is flying to Melbourne this Friday but could hold conference in morning, also regarding matters referred to in outstanding Brief, when he advised he will attend to

Letter to client advising of details of conference arranged with Counsel and reporting as to position generally

Attending Mr D Boughen of Counsel in conference with client and her husband, discussing various matters regarding testamentary capacity and evidence of various witnesses (including Dr Agnew); regarding request that Defendant list documents they claim privilege on; when Counsel has decided whether or not Interrogatories are appropriate then appropriate to consider serving Certificate of Readiness; when Counsel advised as to possible time frame for matter to go to trial; we to up-date our Brief by forwarding copies of most recent correspondence; and generally

Letter from Garrick & Co to Defendant's solicitors regarding items claimed as privileged requiring that the Defendant list those item

Letter from Garrick & Co to Defendant's solicitors listing those documents in respect of which privilege is claimed and relating to documents in Plaintiff's Affidavit of Scripts

Letter to Dr Agnew requesting information in respect of numerous matters

Letter to Blue Nursing Service requesting advice regarding their testing of the deceased's blood-sugar levels, etc

Letter from Garrick & Co to Defendant's solicitors advising our (lengthy) letter of 6.12.88 replied to previous correspondence and requesting their reply to our other letter of 6.12.88

Perusing letter from Defendant's solicitors objecting to our request to list those documents in respect of which they claim privilege and advising that they consider certain of our documents discoverable notwithstanding our claim of privilege

Letter from Garrick & Co to Defendant's solicitors advising the contents of their letter of 13.12.88 referred to Counsel for consideration

Letter from Garrick & Co to Mr D Boughen of Counsel enclosing copy of Defendant's solicitors letter of 13.12.88 and requesting his advice

Telephone attendance on Mr D Boughen of Counsel advising date of Chamber Application and whether he available to appear and discussing, also advising he has yet to decide whether or not to serve Interrogatories about the Defendant's allegations concerning capacity, duress, etc. also about the Defendant's refusal to list privileged documents, when he requested that brief be returned so that he can consider and also discussing whether the matter is otherwise ready for trial

Perusing letter from solicitors for Blue Nursing Service advising it not policy of the Blue Nursing Service to provide information of the nature we had requested

Draft Interrogatories delivered by Mr D Boughen of Counsel

Letter to town agents enclosing Interrogatories for service on the Defendant's solicitors

Telephone attendance on town agents when they advised Interrogatories served 13.3.89

Perusing letter from town agents in confirmation dated

Perusing letter from Dr Agnew advising that he has been able to locate a copy of his letter to Edwards & Partners, and willing to make himself available for interview on certain conditions

Telephone attendance on client when she enquired whether we had received any reply from Defendant's solicitors and when advised she instructed that we write to them and enquire when we can anticipate answers to Interrogatories also when she advised she had received a letter and consent form from Geraghty

Letter from Garrick & Co to Defendant's solicitors requesting advice as to when we can expect to receive Answers to Interrogatories, also requesting that they arrange for an inspection of our documents, and advising that our client anxious for matter to proceed to trial and whether they would be prepared to sign a Certificate of Readiness and in view of the fact that some witnesses are elderly would they object to a request for speedy trial

Perusing letter from Defendant's solicitors advising they expect to provide answers to Interrogatories within next month, that they want response to earlier letter regarding whether we will make available documents in respect of which we claim privilege before they will consider inspection of documents, and they not prepared to sign Certificate of Readiness for trial at this time but obtaining formal instructions regarding eventual application for speedy trial

Letter to D Boughen of Counsel enclosing copies of appropriate correspondence with Defendant's solicitors regarding discovery and inspection of privileged documents and requesting his advices

Although there were comparatively brief periods when there was considerable activity, eg., December 1988 and March 1989, there were other times marked by little or no activity. For example, there was not much achieved or even attempted in the first 12 months, from the end of November 1987 to the end of November 1988, and there was no activity at all in January, February or April, 1989. There seems little doubt but that, if the action for probate in solemn form had been prosecuted diligently, as it should have been, the position reached by the beginning by June 1989 could have been reached months earlier, probably by the end of June, or perhaps July, 1988.

It is necessary to look also at the subsequent period to see what was done and how long was taken and to assess the period which should have been necessary. As earlier noted, the respondent obtained probate on 10 December 1990. Between 1 June 1989 and 10 December 1990, [a little over 18 months], the following steps were taken in addition to a number of telephone communications between the respondent and her solicitors:

Telephone attendance on Mr D Boughen of Counsel regarding discovery question when he advised that Will file discoverable but not the estate file, in any event there is nothing on the Will file which would tend to support their case, also "diary notes" are probably discoverable as they are instructions given by the Testator, however we are not required to discover anything after he died or since proceedings started (i.e., diary notes, etc.) but we to fax copy of letter setting out list of documents in respect of which we claim privilege so that he can check what the documents comprise and discussing generally

*Fax to Mr D Boughen of Counsel with copy letter of Garrick & Co to Defendant's Solicitors dated 6.12.1988 listing documents

*Telephone attendance on Mr D Boughen of Counsel when he advised that all documents set out in the list are discoverable with the exception of the last document listed

*Perusing letter of report from Town Agents advising Order settled and served on Defendant's Solicitors and Registrar's appointment made for the 25.7.89 when they will file Affidavit of Search and draft Grant

Letter from Garrick & Co to Defendant's Solicitors noting failure to forward sworn Answers to Interrogatories despite assurances and advising that unless same received by 13.7.89 we intend to bring action to force compliance as our client most concerned at the delay

Further letter from Garrick & Co to Defendant's Solicitors advising we have instructions to allow inspection of the listed documents set out in our letter of 6.12.88 and requesting that they make arrangements for inspection

Perusing letter from Defendant's Solicitor in reply to various matters raised in recent correspondence, advising settled Answers in Wales for swearing and suggesting date and time for inspection of documents

Telephone attendance on Defendant's Solicitors regarding date, time and place for inspection of documents

Attending representative of Defendant's Solicitors in conference giving inspection of documents and noting photocopies required

Perusing letter from Defendant's Solicitors setting out list of copy documents they require

Defendant's sworn Answers to Interrogatories of 23.6.1989 served on Town Agents

*Perusing letter from Town Agents enclosing Defendants Answers to Interrogatories

*Brief to Mr D Boughen of Counsel to consider Defendant's Answers to Interrogatories and to advise what further steps should be taken prior to signing a Certificate of Readiness, etc.

Letter from Garrick & Co to Defendant's Solicitors enclosing copies of documents requested as a result of inspection of the Plaintiff's documents and commenting with regard to an earlier Will not in the Plaintiff's custody or control

*Letter from Garrick & Co to Town Agents requesting advice as to outcome of search, etc.

*Letter from Garrick & Co to Public Trustee setting out short history of litigation and requesting advice as to whether Public Trustee would be prepared to file earlier Will of the deceased in the Court

*Telephone attendance on Counsel's Chambers requesting that he return my call

*Telephone attendance on Mr D Boughen of Counsel regarding Answer to Interrogatories when he advised he had sent his opinion and discussing generally and also when he advised that it is Defendant's obligation to propound earlier Will, not ours and discussing

*Memorandum of Advice delivered by Mr D Boughen of Counsel regarding Defendant's refusal to answer certain Interrogatories, etc. when he advised he would be away fro 2 weeks

Perusing letter from Defendant's Solicitors acknowledging receipt of copy documents and pointing out that D Garrick will be a significance and whether we had considered appropriateness of firm continuing to act in the action

*Telephone attendance on client discussing advise received from Counsel and whether we consider it appropriate to push for proper answers or accept their unsatisfactory answers and instead submit Certificate of Readiness

Letter from Garrick & Co to Defendant's Solicitors advising that we have received Counsel's advice to make an application for further and better answers to certain Interrogatories and seeking advice as to whether their client is prepared to give further and better answers without the necessity of a formal application

Further letter from Garrick & Co to Defendant's Solicitors in relation to possible conflict of interest and advising Counsel's opinion had been sought and that our firm would not be the Solicitors on the record when the matter went to trial, and enclosing Certificate of Readiness for Trial for execution and return

Drawing and engrossing Certificate of Readiness for Trial

Perusing letter from Defendant's Solicitors stating that they are currently considering our request for further and better answers to Interrogatories and seeking Counsel's opinion and in meantime do not consider it appropriate to sign Certificate of Readiness

Perusing further letter from the Defendant's Solicitors advising that in their view certain of the Interrogatories are misconceived, and that with regard to certain others are matters of evidence and therefore they do not believe further and better answers are necessary and any contemplated application will be strenuously defended

Telephone attendance on Counsel's Chambers leaving message to call

*Further telephone attendance on Counsel's Chambers when advised that Counsel on a four day trial and will not be back until next week when she will get him to call

Perusing letter from Defendant's Solicitors enquiring whether Plaintiff intends to bring threatened proceedings and if not if they receive our assurance that Plaintiff not intending to bring any other interlocutory applications then they prepared to sign Certificate of Readiness

*Telephone attendance on Mr D Boughen of Counsel ( he had been on 2 week building dispute) advising contents of correspondence with Defendant's Solicitors and discussing he suggested we send brief to him and he will consider, also regarding possible conflict of interest when he recommended that appropriate time to change Solicitors would be when a brief to advise on evidence had been delivered, and discussing problems of interviewing witnesses with similar evidence to that of D Garrick and discussing

*Further brief to Mr D Boughen of Counsel to consider the further correspondence and to advise whether an appropriate application should be made, etc.

*Telephone attendance on Counsel's Chambers when advised he in Court - left message to call

*Telephone attendance on Mr D Boughen of Counsel when he advised that he had not formed a view with regard to answers to Interrogatories and he will consider and do a brief advice but he thought it would be of assistance to have answers, that client wants matter set down for trial if no application recommended, also re change of Solicitor and discussing possible firms by way of suggestion

*Telephone attendance on Counsel's Chambers requesting that he call [numerous telephone messages left]

*Telephone attendance on Mr D Boughen of Counsel advising client most anxious about delay and requesting that he consider our Brief and reply without delay, when he advised that he is also considering the Geraghty matter and requested advice as to current U.C.V. of Main Beach property as it might be possible to swing this matter into the District Court jurisdiction in view of the new legislation, when we advised that information would already be in his brief in relation to the application for administration pendente lite but we would look up the information and ring him back

*Telephone attendance on Counsel advising U.C.V. of Main Beach property

*Telephone attendance on Mr D Boughen of Counsel when we advised our client pressing us for answers when he advised he hoped to have advice done by the end of the week, that his present inclination was to forget about further answers to interrogatories but he still wants to consider properly, also he looking at question of whether matter could be transferred to the District Court jurisdiction

*Telephone attendance on Mr D Boughen of Counsel when he advised he had sent Advice on 6.12.89 (not yet received) when we agreed if not received soon to notify him and he will fax a copy to us

*Telephone attendance on Counsel's Chambers advising Advice still not received by post and requesting that copy be faxed to us

*Perusing faxed copy of Memorandum of Advice dated 6.12.89 delivered by Mr D Boughen of Counsel regarding an application for further and better answers to Interrogatories, and whether it appropriate to transfer matter to jurisdiction of the District Court (which he considered exceeded the jurisdictional limits of the expanded jurisdiction of the District Court)

*Letter from Garrick & Co to client enclosing copy faxed Memorandum of Advice and requesting her formal instructions

*Telephone attendance on Mr D Boughen of Counsel when he advised he only returned to Chambers today after the Christmas Court vacation, when we advised we had received instructions to proceed with application re answers to interrogatories, when he advised he does not need a further Brief but will go ahead and draw up the appropriate documents and send to us

*Perusing faxed Summons and draft Affidavit in support received from Mr D Boughen of Counsel

*Telephone attendance on Counsel's Chambers advising that contemplated return date of Chamber Application of 2.2.90 inserted by Counsel did not allow for the fact that we are country practitioners and would not give Defendant's Solicitors sufficient time after service of documents on them to consider their position, when they advised next available date Counsel would be available

*Letter to Town Agents enclosing Summons and Affidavit with instructions to file and serve

Summons (returnable on 15.2.90) that Defendant answer Interrogatories (enumerated) and pay the Plaintiff's costs of the Application - dated

*Telephone attendance on Town Agents when they advised that matter has been set down for 15.2.90 and that this date is suitable to Mr Boughen of Counsel and they will serve Defendant's Solicitors with copies of documents

*Perusing letter of report from Town Agents advising that documents filed and served and return date of summons, and that copies of documents delivered direct to Mr Boughen of Counsel

*Brief to Mr D Boughen of Counsel to Appeal on Summons for further and better answers to Interrogatories

Attending on Chamber Application in Supreme Court, Brisbane before Master Horton QC instructing Mr D Boughen of Counsel when Defendant appeared (Cannan & Peterson instructing Mr Michael Bland of Counsel) and opposed the Plaintiff's application, when order made that the Defendant answer most of the Interrogatories we sought to have answered but no order made as to costs (because each would cancel out the other)

Perusing Affidavit of Brett St Clair Bolton sworn 14.2.90 (filed by leave on 15.2.90) served on us just prior to hearing (11.30 am)

Order of Master Horton QC that the Defendant answer certain Interrogatories (enumerated) on or before the 15.3.90, no order as to costs

*Conference with Mr D Boughen of Counsel in his Chambers at conclusion of Chamber Application discussing next step in proceedings (after Defendant has properly answered in terms of the Order) and that Certificate of Readiness for trial should then be considered, also discussing when file should be handed on to other Solicitors and discussing pros and cons of various other firms of Solicitors, but that file should be retained pending (1) taking out of today's order (2) the Defendant has filed and served his sworn further and better answers; and (3) Counsel has considered those Answers and we have taken any further action he recommends as a result of the contents of those answers

*Telephone attendance on Mr D Boughen of counsel regarding content of draft Order

*Letter from Garrick & Co to Town Agents enclosing draft Order for settling and service

*Telephone attendance on Town Agents when the advised settled Order now available and arranging for service on Defendant's Solicitors

*Perusing letter from Brisbane Agents enclosing sealed copy Order and advising details of service

Perusing letter from Defendant's Solicitors enclosing copy of sworn Answers to Interrogatories with advice that original has been posted from U.K. and is expected in next few days

Defendant's Further Answers to Interrogatories in accordance with Order of Master Horton Q made on 15.2.90 - sworn

*Perusing fax report from Town Agents attaching copy of Defendant's Further Answers to Interrogatories served on

Perusing "Without Prejudice" letter from Defendant's solicitors advising that they had been instructed to explore the possibility of settlement of the action and advising they prepared to allow Probate of will propounded by us on the basis that he receive 50% of the estate assets with each party to bear their own costs to date of the proceedings, but irrespective of our reply, they have been instructed to require an updated list of assets of the estate

*Fax letter to Mr D Boughen of Counsel enclosing recent correspondence from Defendant's solicitors as well as Defendant's Further and Better Answers and requesting Counsel to consider and advise

*Telephone attendance on Counsel's Chambers when advised that he away from Chambers all week but our fax has been received and will be drawn to his attention upon his return

*Telephone attendance on Counsel's Chambers leaving message for him to call when he returns

*Telephone attendance on Mr D Boughen of Counsel discussing unsatisfactory nature of Defendant's Answers and discussing matter in detail, when he stated he had returned Brief and would therefore need copies of certain documents (to be faxed to him) so he could consider matter, also regarding offer of settlement and discussing

*Faxed letter to Mr D Boughen of Counsel enclosing copies of certain documents

*Perusing fax from Mr D Boughen of Counsel attaching settled draft letter to be sent to Defendant's Solicitors

Letter from Garrick & Co to Defendant's Solicitors (as per Counsel's draft) requiring proper answers within 14 days then we will make an application for better particulars, or alternatively that certain paragraphs of the Defence and Counterclaim be struck out

Fax sheet to Defendant's Solicitors attaching letter

Further letter "W.P." to Defendant's Solicitors advising their offer of settlement being referred to client for instructions and we will reply when we have her instructions

Fax sheet to Defendant's Solicitors attaching "W.P." letter

Perusing faxed letter from Defendant's Solicitors advising they disagree with our contention about their client's obligation application by us will be strongly opposed

*Fax letter to Mr D Boughen of Counsel enclosing copies of most recent correspondence and requesting advice as to what further steps should be taken

*Attending client in conference advising up to date position of matter and discussing

*Perusing faxed letter from Mr D Boughen of Counsel advising Defendant's failure to properly answer has to be pressed, and attaching settled Request for Further and Better Particulars to be delivered

Engrossing Request for Further and Better Particulars

Request for Further and Better Particulars of Defence and Counter-claim - dated

*Letter to Town Agents enclosing Request for filing and service

*Perusing letter of report from Town Agents reporting Request served and delivered 24.4.90

*Letter from Garrick & Co to client enclosing copy letter from Counsel and reporting

Perusing letter from Defendant's Solicitors relating to Request for Further and Better Particulars and advising that in their view the Request enquires into matters of evidence and therefore objectionable and their client does not intend to provide the requested particulars

*Faxed letter to Mr D Boughen of Counsel enclosing copy of letter from Defendant's Solicitors dated 26.4.90 and requesting that he consider and advise

*Telephone attendance on Mr D Boughen of Counsel when he advised he had been out of Chambers a lot, discussing correspondence received when he advised he will now proceed to draw application and affidavit in support

*Perusing faxed letter dated 28.5.90 draft Summons and Affidavit from Mr D Boughen of Counsel - received

Attending on swearing of Affidavit in Support of Summons

*Letter from Garrick & Co to Town Agents enclosing documents for filing and service urgently

*Telephone attendance on Town Agents when they advised date proposed by Counsel is a public holiday and arranging for them to list before Master Horton QC on a date suitable to Counsel

*Telephone attendance on Mr D Boughen of Counsel about suitable date for setting down of matter before Master Horton

Summons that certain paragraphs of the Defendant's Defence and Counterclaim be struck out, or alternatively that Defendant provide further and better answers to certain Interrogatories, or alternatively that the Defendant provide further and better particulars of his Defence and Counterclaim, and that the Defendant pay the Plaintiff's costs of the application to be taxed (returnable on 12.6.90)

Affidavit of D G Garrick in support of Affidavit sworn

*Telephone attendance on Town Agents when they advised Master Horton not taking any further matters on his list so set matter down for 12.6.90 when Counsel is available

*Perusing letter from Town Agents reporting filing and service of documents

*Brief to Mr D Boughen of Counsel to appear on Summons relating to Defendant's Further Answers to Interrogatories (hearing: 12.6.90)

*Telephone attendance on Counsel's Chambers arranging to meet Counsel to instruct

Attending at Supreme Court, Brisbane instructing Mr D Boughen of Counsel on Chamber application before Master Horton Q when order made substantially in terms of application sought

Order of Master Horton Q that on or before 3.7.90 the Defendant file and serve further and better answers to Interrogatories (enumerated) and that the Defendant pay the Plaintiff's costs of the Summons to be taxed and that the Summons be adjourned to a date to be fixed to be brought on by giving 5 clear days notice

*Letter to Town Agents enclosing draft Order for settling and subsequent service

Notice of Appeal by the Defendant (for hearing on 20.6.90) - dated

*Perusing faxed letter from Town Agents attaching Notice of Appeal served on them by the Defendant's Solicitors on the 15.6.90

*Perusing letter from Town Agents enclosing original Notice of Appeal and advising draft Order lodged with Supreme Court for settling

*Letter to client reporting and enclosing copy of Notice of Appeal and advising

*Telephone attendance with Mr D Boughen of Counsel advising of service of Notice of Appeal returnable on 20.6.90, when he advised that he not available on that date and that we should approach Defendant's Solicitors for the matter to be adjourned by consent to the following week, if they agree matter can be adjourned on the papers, when he advised that the Appellant should exhibit a copy of Master Horton's Reasons for Judgment but if they do not intend to do so then we should do so ourselves

Telephone attendance on Defendant's Solicitors advising Counsel unavailable and requesting adjournment for 1 week, and requesting advice as to what material they intend to file, when advised that they would speak to their Counsel and advise

*Telephone attendance on Master's Clerk's office when they advise Clerk in Court but copy of Reasons would have been put on the file and would be available by search

*Telephone attendance on Town Agents requesting that they search file and obtain copy of Master's Reasons for hearing tomorrow and that they fax copy direct to Counsel

*Perusing fax from Town Agents enclosing copy of Master's Reasons and confirming copy sent direct to Counsel

Extempore Reasons for Judgment of Master Horton QC delivered 12.6.90

Attending at Supreme Court, Brisbane instructing Mr D Boughen of Counsel on appeal before Mr Justice Byrne (Chamber Judge), when terms of Master Horton's Order of 12.6.90 slightly varied but otherwise appeal dismissed with costs

Order of Mr Justice Byrne that the Order of Sir Master Horton Q be varied (as per order) that otherwise the appeal should be dismissed and that the Respondent recover her costs of the appeal to be taxed from the Appellant

*Conference with Mr D Boughen of Counsel regarding further discovery

Telephone attendance on Defendant's Solicitors as to which party should take out the Order made on appeal, and advising her that original Order of Master Horton had been taken out and we would arrange for it to be served now

*Faxed letter to Mr D Boughen of Counsel forwarding draft Order for settling and requesting advice as to time limits to be imposed in view of no new dates being set by Mr Justice Byrne

*Telephone attendance on Mr D Boughen of Counsel regarding draft Order and also about time limits to be imposed and discussing

*Letter to Town Agents enclosing copy Order of 28.6.90 for settling by Court and service

*Telephone attendance on Town Agents when they advised Registry require Order to be re-drafted

*Letter to Town Agents enclosing redrawn Order for settling and service

*Perusing letter from Town Agents enclosing sealed copies of Orders made on 12.6.90 and 28.6.90 which had been served on Defendant's Solicitors that day

*Telephone attendance on Town Agents confirming date of service of both orders on the Defendant's Solicitors

Drawing and engrossing draft letter to Defendant's Solicitors about non-compliance with the Order of Mr Justice Byrne

*Faxed letter to Mr D Boughen of Counsel enclosing copy Order of Mr Justice Byrne and draft letter to the Defendant's Solicitors for settling

*Telephone attendance on Mr D Boughen of Counsel when he suggested certain alterations to draft letter and otherwise approved its contents, when he advised that if, as a result of those answers it was proper for paras. 4(c), (d) and (e) to be deleted then the whole of para. 4 of their Defence and Counterclaim cannot stand. Therefore we may need to Interrogate further, subject to their reply, but otherwise the matter can be set down for trial

Letter from Garrick & Co to Defendant's Solicitors (as settled) advising that unless Defendant complies with Order of Mr Justice Byrne by 9.8.90 then we intend to seek further orders that para. 4 of the Defence and Counterclaim be struck out with costs

Perusing faxed letter from Defendant's Solicitors explaining delay caused in Wales but instructions now received and conveyed to Counsel, but if we proceed with contemplated application then they intend to cross-apply for an Order for extension of time to comply with the Order of Mr Justice Byrne

Faxed letter from Garrick & Co to Defendant's Solicitors acknowledging receipt of information in their fax and advising that we consider a week adequate for Counsel to settle and unless they file and serve the Further and Better Particulars by the 15.8.90 then we intend to proceed with application

Further and Better Particulars of the Defendant's Counter-Claim - dated

*Perusing faxed letter from Town Agents enclosing copy of Further and Better Particulars of Counter-claim served on them that day

*Brief delivered to Mr D Boughen of Counsel to advise on Defendant's further and better particulars of counter-claim

*Telephone attendance on Mr D Boughen of Counsel of Counsel discussing contents of his brief and advising client's instructions in reply to allegations made against her, also regarding the possibility of having to discover all the deceased's bank statements, cheque butts, records, etc.

*Telephone attendances on Counsel's Chambers and Mr D Boughen of Counsel when he advised he had drafted a letter for us to send to the Defendant's Solicitors about the inadequacy of their particulars and would forward to us by fax early next week

Letter from Garrick & Co to Defendant's Solicitors (as settled by Counsel) advising that particulars supplied do not respond to the request and they have not stated any of the facts, matters or circumstances relied on with regard to their allegations and requesting that they supply further and better particulars of their Particulars and the matters raised therein

Fax sent to Defendant's Solicitors attaching letter

Perusing faxed letter from the Defendant's Solicitors in reply, advising that they are obtaining instructions regarding the possible deletion of certain paragraphs of the Defendant's counterclaim, and enclosing copy of the Further and Better Particulars served on our Town Agents that day

(Further) Further and Better Particulars of the Defendant's Counterclaim

*Perusing faxed letter from Town Agents attaching copy of the Further and Better Particulars served on them on the 15.10.90

*Faxed letter from Garrick & Co to Mr D Boughen of Counsel enclosing copy of Defendant's Further and Better Particulars and accompanying letter

*Telephone attendance on Mr D Boughen of Counsel when he suggested content of letter in reply and advised that we will need to look at what is left after they confirm they intend to delete certain parts - may be that we can apply to have other parts struck out

Drawing and engrossing draft letter to Defendant's Solicitor for settling by Counsel

*Faxed letter from Garrick & Co to Mr D Boughen of Counsel attaching draft letter for settling

*Letter to client enclosing copy of recent correspondence for her information

*Telephone attendance on Mr D Boughen of Counsel discussing amendments to draft letter

*Telephone attendance on Mr D Boughen of Counsel checking amended draft and discussing, also discussing regarding time when Defendant has to seek Court's permission to amend

Letter from Garrick & Co to Defendant's Solicitors (as finally settled) requesting their client's instructions regarding deletion and whether client intends to amend the Counterclaim and requiring a proper response to certain paragraphs of our earlier request for further and better particulars of the Defendant's particulars

Perusing faxed letter from Defendant's Solicitors in reply requesting particulars of how we assert that the Defendant has not properly given proper answers to our request, etc.

*Faxed letter to Mr D Boughen of Counsel enclosing copies of most recent correspondence for his consideration

Perusing faxed letter from Defendant's Solicitors advising that they now have instructions to delete paragraphs 4(c) and (d) from the Counterclaim

*Faxed letter to Mr D Boughen of Counsel enclosing copy of most recent correspondence with instructions to draft a reply

*Telephone attendance on Mr D Boughen of Counsel advising client is pressing for action, when he advised major question is whether their plea is capable of standing alone with those parts of their Defence struck out and he intends to do research on the point, also he queried whether they are being cagey about not knowing what we want or not

*Perusing fax from Mr D Boughen of Counsel with settled letter

Letter from Garrick & Co to Defendant's Solicitors (as settled) setting out summary as a result of correspondence and particulars etc. and requesting those further particulars set out in our letter of 1.10.90

*Letter to client enclosing copy of recent correspondence for her information

*Telephone attendance on Mr D Boughen of Counsel discussing summary of Defendant's position as he sees it, when we advised that settled letter had been faxed to Defendant's Solicitors that day

Perusing faxed letter from Defendant's Solicitors advising that they had been instructed that the Defendant no longer intends to defend our client's action nor to prosecute further the counter-claim

*Faxed letter to Mr D Boughen of Counsel enclosing copy faxed letter received from Defendant's Solicitors

*Telephone attendance on Mr D Boughen of Counsel when he advised that we should now probably move for Judgment and that our costs should be paid, when we queried practical implications of obtaining probate of the deceased's Will and whether this should be proof in solemn form or common form, and discussing possibility of recovering any costs order in the U.K.

*Further telephone attendance on Mr D Boughen of Counsel when he advised procedure should be a motion for judgment to be heard in Chambers, supported by Affidavit material annexing Defendant's Solicitors' recent correspondence, plus material to prove up the Will, and discussing question of costs, when he dictated text of letter to be sent

Letter from Garrick & Co to Defendant's Solicitors advising we intend to move for an Application for Judgment in the action and counter-claim with costs and advising of our intention to proceed on this course unless we heard from them to the contrary within 24 hours

*Perusing faxed letter from Mr D Boughen of Counsel enclosing settled Notice of Motion and two affidavits

*Telephone attendance on Mr D Boughen of Counsel regarding settled documents and discussing time frame for lodgment of documents and possible return dates

Telephone attendance on Ann Sharp (nee Skewes) (other attesting witness to Will) advising she required to swear joint Affidavit to obtain Probate and discussing

Engrossing Notice of Motion, Affidavit of D Garrick in support of application for judgment and joint Affidavit of D Garrick and A Sharp in support of application for probate

Affidavit of D G Garrick (in support of application for judgment)

Notice of Motion for judgment for the Plaintiff on the claim and on the counterclaim and for orders that a grant of probate of the Will of the deceased (dated 1.4.1984) be made to the Plaintiff and tha the Defendant pay the Plaintiff's costs of the action and counter-claim (returnable on 6.12.90) - dated

Attending at Brisbane to swear Affidavit jointly with Ann Sharp, subsequent filing of all documents in Supreme Court, attending serving Defendant's Solicitors, and attending at Counsel's Chambers delivering documents for Brief and conferring

*Telephone attendance on Mr D Boughen of Counsel discussing possibility of Defendant's Solicitors withdrawing and possibility of having to prepare an Affidavit of Service unless we have an indication that they intend to appear

Telephone attendance on Defendant's solicitors esquiring whether they intend to appear, when they advised they would be appearing but would not be opposing our application with the exception of our application for an order for costs, which they would be opposing, and that she was preparing an Affidavit in Reply and would fax through to our office that afternoon

*Telephone attendance on Mr D Boughen of Counsel advising of position when he requested that we let him have a copy of their Affidavit as soon as received as it ... probate (unopposed) and on application for costs (opposed) when the Defendant's Counsel made an oral application for payment of the Defendant's costs from the estate, when Orders made in the Plaintiff's favour

Order of Mr Justice de Jersey that Judgment be entered for the Plaintiff on the claim and counterclaim, that a grant of probate of the Will of ALBERT EDWARD SHEPPARD, the deceased in the action, dated 1.3.84, be made to the Plaintiff, and that the Defendant pay the Plaintiff's costs of and incidental to the action and counterclaim including any reserved costs after the 31.7.1989 on a Solicitor and (delete "own") client basis to be taxed

Although there were times of little activity, eg., August, October and November 1989 and January, May and September 1990, for the most part there was regular and largely effective activity in this period directed to the finalisation of the probate action. There is ample scope for different views on what is substantially a matter of impression, but I consider that, if the respondent had used her "best endeavours", these steps would have taken less than a year and probably closer to nine months. On these estimates, which are necessarily broad and imprecise, the respondent would have obtained probate by 1 June 1989 if she had used her "best endeavours" to do so. Some general confirmation of this may perhaps be found in the proposition that, had the probate action been prosecuted diligently, it should have been completed within 18 months from the point at which affidavits of documents had been exchanged, which was prior to 26 November 1987 when 1 June 1989 was agreed as the operative date for the purposes of clause 35 of the contract.

The crucial issue for decision is whether or not the respondent could have obtained probate by 1 June 1989 if she had used her best endeavours to do so. In my opinion, that question should be answered in the affirmative. This is contrary to the decision of the trial judge, whose view is entitled to due weight. However, the conclusion depends on drawing an inference from largely undisputed facts, and this Court is in as good a position to do so as the trial judge.

Accordingly, the appeal should be allowed, with costs to be taxed. The orders made below should be set aside and specific performance ordered. The parties can bring in minutes of orders to deal with other matters.

Separate reasons for judgment by The President, Pincus JA., and Williams J. All concurring as to orders made.

APPEAL ALLOWED with costs to be taxed. Order made below set aside and specific performance of the contract between appellant and respondent dated 17 February 1986 ordered. Parties to bring in minutes of orders to deal with other matters.

CATCHWORDS: CONTRACT - SOLICITOR AND CLIENT - client's responsibility for ensuring solicitor proceeds diligently - sale of land - contact subject to vendor obtaining title to land - delay in prosecution of action for probate - contract extended 3 years - probate obtained 18 months after contract date expired - vendor terminated contract - whether client responsible to other party for how diligently solicitor prosecutes action.

CONTRACT - BREACH - default resulting in non-fulfillment of condition - sale of land - contract subject to vendor obtaining title to land - delay in prosecution of action for probate - contract extended 3 years - probate obtained 18 months after contract date expired - vendor terminated contract - whether conduct of respondent vendor must be a dominant or merely contributing factor of breach in order to prevent reliance on condition allowing termination for non-fulfillment.

Counsel: Mr. P. Lyons, with him Mr. B. O'Donnell for the appellant

Mr. R. Myers, with him Mr.E. Howard for the respondent

Michael Joseph Smith, Solicitors for the respondent

The facts relating to this appeal are set out fully in the reasons of the President.

An action for probate in solemn form is a type of litigation of which many lawyers have little or no experience. Unless the parties insist on promptness, cases of that kind tend to suffer from lack of attention from busy practitioners, who may tend to give priority to less demanding work. The trial judge said that the action was...

"...of a kind seldom encountered by a solicitor, particularly by a sole practitioner and it was appropriate for [the plaintiff's solicitor] to tread cautiously".

In my opinion, there was no special need for caution, as no particular danger was involved; there was merely the fact that the lawyers had to study the characteristics, procedural and otherwise, of a suit of this kind. The judge said:

"The action commenced on 8 January 1987 and was resolved by judgment on 10 December 1990. It is regrettably correct to say that there was at that time nothing unusual about such a timescale for litigation in the Supreme Court".

At the end of this four year period interlocutory steps had not been completed. For example, late in 1990 the form of the defendant's pleading was still in question; the suit was then well short of being ready for trial. Had it not been for the defendant's abandonment of his resistance to a grant of probate, it appears to me that the matter would probably not have been disposed of for another year or two. It may be that, to use the judge's language, there is "nothing unusual" about an action for probate in solemn form of no great complexity proceeding at that rate; but that is not, in my opinion, to the point. The obligation of the respondent (plaintiff in the probate action) under the contract of sale, to use her best endeavours to become registered as soon as reasonably practicable, was not necessarily fulfilled if it was shown that the suit progressed in a fashion which could be regarded as normal or average.

As is pointed out in the reasons of the President, there was an agreement, entered into by way of variation of the contract for sale, making 1 June 1989 the critical date. The respondent's obligation to use best endeavours to become registered as soon as reasonably practicable continued after that variation. One way of testing the respondent's fulfilment of that obligation is to examine the formal steps which were taken on her behalf in the probate suit, from the date of the variation, 26 November 1987, to the new agreed date (1 June 1989) on or before which probate had to be granted if there was not to be a right of rescission. They may be shortly stated; February 1988 mutual inspection of discovered documents took place and in March 1989 the respondent's solicitors served interrogatories on the other side; no other formal interlocutory steps were attempted.

It must have been evident that if matters were allowed to go ahead at such a pace, there was no chance of resolving a contested suit for probate in due time. The content of the obligation to use best endeavours depends on the contractual context; here, under the contract as varied, there was a period of 18 months between the date of the variation and the agreed date upon which the contract might be rescinded if probate had not been granted. No doubt it was possible to resolve the probate action within that time, but only if the matter were given priority - by the lawyers, as well as by the Court. When one sees that over a year elapsed between inspection of documents and the taking of the next formal step by the respondent - delivery of interrogatories - the objective conclusion must be that the action was being pursued in a way which did not amount to the use of best endeavours to obtain probate as soon as reasonably practicable. That this was so must surely have been evident to the respondent herself, and her practical obligation was absolutely to insist on her solicitor treating the case as urgent, or to obtain the services of a solicitor willing to do so.

Authorities may be found, in the context of applications to strike proceedings out, bearing on the question whether the litigant should be held responsible for his or her solicitor's dilatoriness. The question whether a contractual obligation to act expeditiously is fulfilled if the party in question engages a solicitor who acts in a dilatory fashion is a different one, which it is not strictly necessary to resolve in the present case. But I am respectfully inclined to agree with the view expressed by the President that the respondent was, under the contract, responsible for the conduct of her lawyers: see Sargent v. A.S.L. Developments Limited (1974) 131 C.L.R. 634 at 658-9 cited in C.S.S. Investments Pty Ltd v. Lopiron Pty Ltd (1987) 16 F.C.R. 15 at 27. The respondent is said to have expressed dissatisfaction with the delay in the action and complained to the Law Society about it. But that had no perceptible effect and it must have been clear that continuing with the matter in the way in which it was handled, during the critical period, could not produce the result the contract contemplated. As the primary judge pointed out, the respondent's solicitor constantly consulted counsel; nothing of any significance was done without his advice. That slowed the matter up and in my view it was plainly necessary, if the matter was to proceed expeditiously, for the solicitor to take more responsibility and exercise initiative. Further, as the judge also pointed out, the solicitor had personal difficulties which tended to excuse her lack of attention to the work; it seems clear that that circumstance cannot afford any answer to the appellant's claim.

The contract does not expressly say whether or not a failure on the part of the respondent to use best endeavours to obtain probate as soon as reasonably practicable affects the respondent's right to rescind if probate is not obtained by the agreed time. There is authority in the High Court tending to support the view that the right to rescind of one such as the respondent is lost if her default has contributed to the non-fulfilment of the relevant condition: Gange v. Sullivan [1966] HCA 55; (1966) 116 C.L.R. 418 at 441 referred to in Perri v. Coolangatta Investments (1982) 149 C.L.R. 537 at 544-5 and at 566-7. I note also the reference to the party relying on non-fulfilment of the condition having to act "reasonably" in attempting to fulfil the condition, at p. 560 of the Perri case. On the other hand in Italo-Australian Club v. National Australia Bank Ltd (1989) N.S.W. Conv.R. 55-461 pp. 58,342-3 referred to by the President, a test more favourable to the respondent appears to have been adopted. I refer also to the discussion in the C.S.S. Investments case (above) at pp. 34, 35.

In the two High Court cases this question was not examined in depth; the reference in Gange v. Sullivan to conduct "contributing" to non-fulfilment of the relevant condition should not be taken to be definitive. In my opinion, at least in the present case, the proper implication is that the party failing to use best endeavours cannot rely on the failure of the condition contained in cl. 35 if the breach was a major cause of that failure. It does not appear to me that the Court must be satisfied, if the appellant is to succeed, that probate would have been obtained in time if there had been no breach.

But in the present case the appellant passes both tests. With the advantage of hindsight it may reasonably be inferred that the abandonment, by the defendant in the suit, of his defence of the probate action would have occurred very much earlier had the case been pursued vigorously on the respondent's side. When modest pressure was applied by the respondent, the defendant's solicitors apparently examined the strength of their case more closely and advised their client not to resist the grant of probate further; judgment for the respondent followed within a week.

Most relevant facts are set out in the judgment of the President which I have had the advantage of reading. I would arrive at a similar conclusion, but in addition to the matters referred to in those reasons there are other facts which have affected my reasoning.

It will be recalled that on or about 26 November 1987 the parties agreed to an extension of the time on or before which, pursuant to cl. 35, the respondent was to have obtained a Grant of Probate; the new agreed date was 1 June 1989. Throughout 1989, Lyons, solicitors, were acting on the appellant's behalf. On 13 March 1989 those solicitors wrote to Messrs Garrick and Co., the then solicitors for the respondent, as follows:

"We refer to previous communications in relation to the above. We note the time for satisfaction of the condition contained in Clause 35 of the Contract has been extended until the 1st June 1989. Our client has become extremely concerned at the delays being experienced in the satisfaction of that condition. The date for satisfaction of the condition was originally the 1st June 1986. That date has been extended to the 1st June 1989. Our client considers that not all best endeavours have been made to have that condition fulfilled."

As no reply had been received thereto, a further letter was written on 28 March 1989 requesting "a reply at your earliest convenience". There was still no reply by 10 April 1989 when a further letter requesting "a reply at your earliest convenience" was sent. That was still the position on 19 April 1989 when Lyons wrote, so far as is relevant, as follows:

"We refer to our letters of the 13th March 1989, 28th March 1989 and 10th April 1989 and note that to date we have not received a reply. In addition, we have telephoned your office on a number of occasions and you have not been available to take our call.

Unless we receive a response from you within seven (7) days of the date of this letter, we will have no alternative but to advise our client of the alternatives and remedies available to her and seek her instructions in relation to them."

Then came the letter of 21 April 1989, in which Lyons reiterated much of what had been said in the earlier correspondence; it noted that there had been no attempt to return telephone calls made. Importantly that letter contained the following paragraph:

"In our letter to you dated the 13th March, 1989, we confirmed that the time for satisfaction of a condition contained in Clause 35 of the Contract was extended until the 1st June 1989. Our client has become extremely concerned at the delays being experienced in the satisfaction of that condition, and given the proper history of this matter, it seems likely that your client may not obtain a Grant of Probate within that time. It has now been approximately three years since the date it was anticipated that your client would be in a position to fulfil Clause 35 of the Contract of Sale. Our client considers that your client has not used her best endeavours to fulfil that condition, and we put you on notice that our client considers that your client could not rely on that provision to terminate the contract."

That did elicit a response from Messrs Garrick and Co. on behalf of the respondent. The letter began by apologising "for the delay in replying which has been caused by the multiplicity of recent public holidays and pressure at work". That is hardly an explanation for a total failure to respond to the appellant's request from 13 March 1989. The letter of 28 April 1989 advised the appellant of a number of matters, asserted by the respondent's solicitors to be relevant. In some ways the letter was misleading. For example, it referred to the fact that on 6 March 1989 an order granting Letters of Administration pendente lite had been obtained; a perusal of all the material establishes that such a grant was obtained for purposes not related to the probate action relevant for the purposes of cl. 35. A number of other paragraphs in that letter referred to steps being taken in the action, but nothing was said as to the date by which the respondent anticipated obtaining the Grant. The letter concluded by stating:

"In the circumstances, our client considers she has fulfilled the terms of the Contract insofar as it is in her power to do so."

That brought a reply from Lyons dated 15 May 1989 in the following terms:

"It is evident that from the contents of your letter that there is no prospect of the Grant of Probate issuing by the 1st June 1989. We note from your letter of the 6th May 1986 that your client was then prepared to further extend the period in which to satisfy Clause 35 of the Contract if this should be necessary.

We believe a further extension will be necessary, and given that the action is not yet been entered for trial, it is unlikely that trial dates will be obtained within the next two years. We therefore propose a further extension for satisfaction of the condition contained in Clause 35 until the 1st June 1992.

A form of agreement to extend time is enclosed for execution by your client."

As no reply had been received by 26 May 1989 a further letter was written which is of some significance:

"Our client has expressed concern as to the course of action which your client recently indicated she intends to follow in terminating the existing contract and making a fresh offer to sell the property to our client.

We have advised that our client that if Mrs Egan terminates the contract she exposes herself personally to an action for damages. We consider the measure of damage to be the difference between the current value of the property and the Contract price, which on our instructions is in the order of $100,000.

Please give us a clear indication of your client's intention with respect to the contract within seven (7) days. If we have not heard from you by that time, we shall have no alternative but to proceed on the basis that your client intends to terminate on the 1st June, and to prepare accordingly."

The next response from Garrick and Co. was the letter of 18 October 1989, well after the due date.

The letter of 6 May 1986 to which Lyons referred in their letter of 15 May 1989 was from McGregor Garrick and Co., the then solicitors for the respondent, to Lyons. Relevantly it said:

"Our client has instructed us to agree to an extension of the time for us to satisfy the provisions of the Clause 35 of the Contract for a period of 12 months from 1st June, 1986, namely to the 1st June, 1987, with time to remain of the essence of the contract. Our client has indicated that she is also prepared to further extend the period in which to satisfy Clause 35 if this should be necessary. She will give us formal instructions regarding a further extension in 1987."

What, in my view, is of significance is that there was no response from either the respondent or her solicitors, to the assertion that there had at an early stage been an indication of preparedness to extend time under the subject clause if necessary. Further, and perhaps more importantly, there was no response to the assertion that the respondent had, prior to 26 May 1989, indicated an intention of terminating the existing contract and making a fresh offer to sell to the appellant.

That latter matter was put to the respondent during crossexamination. The context makes it clear that the questions related to the period May 1989 during which there was a telephone conversation between Mr Geraghty, the appellant's husband, and the respondent; the following questions and answers are relevant:

"Q. And then you said that Denise Garrick had said that no consent for an extension was to be signed at this stage and that property values had increased over the time and that you had lost interest over the four years which may have to be charged and that we could come to some compromise as to what would be fair to both parties? -

A. Well, I can recall the contract prior to being $80,000 and I really felt I couldn't afford to dispose of the property because - without - I couldn't afford, really, to sell the property, in short, to Mrs Geraghty for $80,000 when it was worth a lot more.

Q. At the time the contract was signed you were happy to sell it for $80,000? -

Q. By the middle of 1989 you thought the property was worth much more than $80,000? -

A. Well, I had asked the real estate agent and had been told the value of the property, yes, and it was worth a lot more.

Q. And for that reason you wanted to keep it for yourself? -

Q. You sought to get out of the contract with Mrs Geraghty? -

The only rational conclusion one can draw from that is that the conversation referred to, took place before the letter of 26 May 1989 was written.

M.J. Geraghty, the appellant's husband, gave evidence at the trial about that telephone conversation. He swore it occurred on 3 May 1989. He reiterated in his evidence that the respondent said that she had "lost interest" over the last four years and that they may have to come to some compromise as to what would be fair to both parties.

Against that background it is instructive to look at what occurred between March and June 1989 by reference to the chronology incorporated into the reasons for judgment of the President. Nothing of substance occurred, notwithstanding the contention by and on behalf of the appellant that the respondent was not using "best endeavours" to conclude the probate litigation.

What is also interesting is that in that chronology against the date 2 May 1989 there is the statement that the respondent informed her solicitor that "she had received a letter and consent from Geraghty". That confirms some personal communication whereby the respondent received a further consent form directly from the appellant for an extension of time. The oral evidence also establishes that there were several telephone discussions directly between the parties, particularly in the first half of 1989.

The conversation on or about 3 May 1989 does not of itself establish that the respondent intended not to be bound by the contract but it is nevertheless evidence that confirms that she was not using her "best endeavours" to meet the condition. If her conduct established an intention not to be bound by the contract then she would not have been in a position to rely on the condition at a later point of time (cf. Carpentaria Investments Pty. Ltd. v. Airs and Arnold (1972) Qd.R. 436 at 461).

In my view all of the matters to which I have referred reinforce the conclusion that the respondent was not using "best endeavours" to satisfy the condition prior to 1 June 1989, and therefore she was not in a position to bring the contract to an end on account of the non-fulfilment of the condition in cl. 35.