//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2026] NSWSC 617
Supreme Court of NSW
2026-06-01
Williams J
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Moore v Rodney [2026] NSWSC 617
Hearing dates: 21 May 2026
Date of orders: 1 June 2026
Decision date: 01 June 2026
Jurisdiction: Equity - Duty List
Before: Williams J
Decision: See orders at [60]
Catchwords: SUCCESSION — executors and administrators — application for dismissal of proceedings for want of due despatch pursuant to r 12.7 of the Uniform Civil Procedure Rules 2005 (NSW) and barring order pursuant to s 93(2) of the Probate and Administration Act 1898 (NSW) — where defendant is the executor of the estate of deceased and publishes a notice of intended distribution of the deceased’s estate under s 92 of the Probate and Administration Act — where plaintiff subsequently notifies defendant of intended claim against the deceased’s estate — where defendant serves plaintiff with notice under s 93(1) of the Probate and Administration Act — where plaintiff subsequently commences proceedings against the defendant in her capacity as executor — where plaintiff has repeatedly failed to comply with directions made after close of pleadings for the service of the plaintiff’s affidavit evidence in chief and these proceedings have not progressed for seven months as a result of that non-compliance — whether the proceedings should be dismissed for want of due despatch pursuant to r 12.7 of the Uniform Civil Procedure Rules 2005 (NSW) — whether Court has jurisdiction under s 93(2) of the Probate and Administration Act to make an order barring the plaintiff’s claim as against the defendant executor on the ground that the plaintiff is not prosecuting the claim despite having commenced proceedings — whether barring order ought to be made and, if so, on what conditions
Original judgment source is linked above.
Legislation Cited: Civil Procedure Act 2005 (NSW) ss 56, 91
Probate and Administration Act 1898 (NSW) ss 92, 93
Uniform Civil Procedure Rules 2005 (NSW) rr 12.7, 36.16
Cases Cited: Di Giannantonio by his tutor Tucker v Di Giannantonio [2026] NSWCA 69
English v Stewart [2022] NSWSC 268
Kadiev v Petrov [2023] NSWSC 1031
Mahmoud v Ghahreman [2026] NSWCA 52
Moore v Rodney [2026] NSWSC 496
Olsen v James [2020] NSWSC 1015
Palmanova Pty Ltd v Commonwealth of Australia (2025) 99 ALJR 1362; [2025] HCA 35
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
Category: Procedural rulings
Parties: Rina Anne Moore (Plaintiff)
Mary Catherine Rodney as executor of the will of Vova Vladimir Rodney (Defendant)
Representation: Counsel:
Ms R Moore (Litigant in Person) (Plaintiff)
Mr R M Higgins (Defendant)
Solicitors:
Ms R Moore (Litigant in Person) (Plaintiff)
West Legal (Defendant)
File Number(s): 2025/261759
Publication restriction: N/A
The defendant in these proceedings, Ms Mary Rodney, is the executor of the estate of the late Vladimir Viktorovich Rodney, who died on 25 February 2024.
The plaintiff, Ms Rina Anne Moore is a niece of the deceased.
On 17 July 2024, the Court made a grant of probate to Ms Rodney in respect of the deceased’s estate. According to the inventory of property annexed to the grant of probate, the assets of the estate comprise real property at Chester Hill, moneys held in bank accounts, shares in public companies, and a motor vehicle.
On 1 August 2024, Ms Rodney published a notice of intended distribution of the assets of the estate pursuant to s 92 of the Probate and Administration Act 1898 (NSW) (Probate and Administration Act). Section 92 relevantly provides:
“(1) The executor or administrator of the estate of a testator or an intestate may distribute the assets, or any part of the assets, of that estate among the persons entitled having regard to the claims of beneficiaries (including children conceived but not yet born at the date of the death of the testator or intestate), creditors and other persons in respect of the assets of the estate of which the executor or administrator has notice at the time of distribution if—
(a) the assets are distributed at least 6 months after the testator’s or intestate’s death, and
(b) the executor or administrator has given notice in the form approved under section 17 of the Civil Procedure Act 2005 that the executor or administrator intends to distribute the assets in the estate after the expiration of a specified time, and
(c) the time specified in the notice is not less than 30 days after the notice is given, and
(d) the time specified in the notice has expired.
(2) An executor or administrator who distributes the assets or any part of the assets of the estate of a testator or an intestate in accordance with subsection (1) is not liable in respect of those assets or that part of those assets to any person who has a claim in respect of those assets or that part unless the executor or administrator had notice of the claim at the time of the distribution or the distribution was not made in the circumstances described in subsection (2) (a) or (b) of section 28 (Protection of personal representatives who distribute as if will had not been rectified) or section 125 (Sharing between spouses) or 126 (Distribution orders) or Part 4.4 (Indigenous persons’ estates) of the Succession Act 2006.
(3) ...”
On 10 January 2025, Ms Moore notified Ms Rodney that she intended to make a claim against the deceased’s estate.
Prior to Ms Moore giving that notice, Ms Rodney had distributed the majority of the funds held in bank accounts that formed part of the deceased’s estate. The shares included in the estate have not yet been distributed. The deceased’s last will granted a right of residence to Ms Rodney in respect of the Chester Hill property. Ms Rodney is exercising that right of residence.
On 28 February 2025, Ms Rodney served a notice on Ms Moore pursuant to s 93(1) of the Probate and Administration Act calling on her to commence proceedings to enforce her claim within a period of three months from the date of service of the notice, and to prosecute her claim.
Section 93 of the Probate and Administration Act relevantly provides (my emphasis):
“(1) When the executor or administrator of the estate of a testator or an intestate has published the notices referred to in section 92 (1) and a claim in respect of the assets of that estate is submitted to the executor or administrator, the executor or administrator may, if the executor or administrator disputes the claim, serve on the person by whom or on whose behalf the claim was submitted a notice calling on the person to take proceedings to enforce the person’s claim within a period of 3 months from the date of service of the notice and to prosecute the person’s claim.
(2) If, after a notice has been served on a person in accordance with subsection (1) and the period of 3 months referred to in the notice has expired, that person does not satisfy the Court that the person is prosecuting the person’s claim, the Court may, on an application in that behalf made by the executor or administrator—
(a) make an order barring the claim of that person as against the executor or administrator, subject to such conditions (if any) as it thinks just and equitable, or
(b) make such other order in respect of the application as it thinks just and equitable, having regard to the circumstances of the case.”
The plaintiff commenced these proceedings by Statement of Claim filed on 3 July 2025. A Defence was filed on 18 September 2025. An Amended Statement of Claim was filed on 2 October 2025 making a small number of deletions to the Statement of Claim. The Defence stands as Ms Rodney’s defence to the Amended Statement of Claim.
The plaintiff claims equitable compensation on the grounds that, by making his last will on 3 April 2020 in terms that provided only modest gifts to the plaintiff and her brother and provided substantial gifts to other beneficiaries, the deceased unconscionably resiled from the following representations allegedly made by the deceased during his lifetime to the plaintiff:
in July and August 1989, that the deceased would “abide by the instructions” in the will of his mother Tamara Ivanovna Rodney made on 18 February 1976 (defined in the Amended Statement of Claim as the First Representation and the Second Representation);
in September 1992, that the deceased was “a self-proclaimed bachelor who has chosen not to produce offspring” and that the plaintiff and her brother would be “next in line as the rightful successors” (defined in the Amended Statement of Claim as the Third Representation);
in September 1993, that if the plaintiff continued caring for the deceased’s mother and the plaintiff’s grandmother Tamara Ivanovna Rodney, the deceased would compensate the plaintiff “three-fold” from the deceased’s management of his mother’s assets (defined in the Amended Statement of Claim as the Fourth Representation);
in September 2016, that the deceased would help the plaintiff financially (defined in the Amended Statement of Claim as the Fifth Representation); and
in November 2016, that the plaintiff would need to wait until the deceased could recover losses on his investments before he could assist her financially (defined in the Amended Statement of Claim as the Sixth Representation).
The Defence:
does not admit the alleged First, Second, Third, Fourth, Fifth and Sixth Representations;
does not admit the acts pleaded as acts of reliance on the alleged First, Second, Third and Fourth Representations;
says that no reasonable cause of action is disclosed in respect of the alleged Fifth and Sixth Representations, presumably because there is no pleading of reliance on those alleged Representations;
pleads that none of the alleged Representations are sufficiently clear and unambiguous to found an estoppel;
pleads that any reliance (if any) on the alleged Representations (if made) was not reasonable;
pleads that Ms Moore impermissibly seeks to rely on the doctrine of promissory estoppel as a source of a positive obligation; and
pleads that the relief sought by Ms Moore is disproportionate to any detriment (if any) alleged to have flowed from the pleaded acts of reliance.
Ms Moore has represented herself throughout these proceedings.
On 26 September 2025, the Court made directions requiring Ms Moore to serve all affidavit evidence in chief by 29 October 2025.
Ms Moore did not comply with that direction.
The time for Ms Moore to serve her affidavit evidence in chief was extended on numerous occasions after 29 October 2025.
On 9 February 2026, the Court extended until 27 February 2026 the time by which Ms Moore was to serve her affidavit evidence in chief, and made an order that Ms Moore may not rely at final hearing on any affidavit served after 27 February 2026 without leave of the Court. Those orders were made by consent following a hearing before Lindsay J at which Ms Moore informed his Honour that she consented to the orders and the following exchange then occurred between Mr Higgins (counsel appearing for Ms Rodney), his Honour, and Ms Moore:
“HIGGINS: Your Honour, I would also like to make sure on the record that Ms Moore understands the import of o 2 that she is agreeing to, namely that at the final hearing, the plaintiff may not rely on any evidence in chief served after 27 February 2026 without the leave of the Court.
HIS HONOUR: Well, you’ve just read that to her.
PLAINTIFF: Yes, I understand that.”
Ms Moore has still not served her affidavit evidence in chief.
During the period since October 2025, Ms Moore has given various different explanations to Ms Rodney’s solicitor and to the Court for her failure to comply with directions for the service of her evidence. During the period since February 2026, Ms Moore has informed Ms Rodney’s solicitor and the Court on several occasions that her affidavit in chief was ready and would be served imminently. I infer from those statements that the whole of Ms Moore’s affidavit evidence in chief comprises one affidavit made (or to be made) by her together with any annexures or exhibits to that affidavit. Ms Moore has failed to serve her affidavit evidence in chief following each of those statements.
In March 2026, Ms Moore sought to attribute her failure to serve her affidavit evidence in chief to Ms Rodney’s failure to produce documents in response to notices to produce issued by Ms Moore. There is no reason why Ms Moore required those documents to serve her affidavit evidence in chief. In any event, the notices to produce were set aside on 8 May 2026: Moore v Rodney [2026] NSWSC 496.
At a hearing on 8 May 2026, Ms Moore informed the Court that she has complex post-traumatic stress disorder from prolonged domestic violence and that she feels anxious and gets into a panic about whether her affidavit evidence is “correct” and at the prospect that her affidavit is “going to be served”. Ms Moore also informed the Court that “there is a cure and remedy for that now. So I’m not using the same mental health excuse all the time.” Ms Moore then informed the Court that her psychiatrist had prescribed some medications to assist, and that a social worker with a legal background had been assigned to assist her in meeting court deadlines going forward. Ms Moore also informed the Court that her psychiatrist was preparing a report about these matters which Ms Moore expected to receive that day.
At that hearing on 8 May 2026, Ms Moore initially informed the Court that her affidavit had been sworn or affirmed and a signed copy of it in PDF form was on her computer that she had with her in Court. When I proposed taking a short adjournment during which she could email the affidavit to the defendant’s solicitor by way of service, Ms Moore informed me that the affidavit was in fact not complete. After explaining to Ms Moore the unacceptability of these proceedings not having progressed since September 2025 as a result of her failure to serve her affidavit evidence in chief, I made an order granting leave to Ms Moore to rely at the final hearing of these proceedings on any affidavit and accompanying exhibit served on the defendant by no later than 4:00pm on 11 May 2026. I also made a direction that Ms Moore file any affidavit served in accordance with that order as soon as reasonably practicable after service.
Ms Moore did not serve any affidavit on the defendant by 11 May 2026.
The matter was referred to me in the Equity Duty Judge List on 12 May 2026. Counsel for Ms Rodney informed the Court that Ms Moore had not served her affidavit evidence in chief and sought to move on a motion filed in court seeking an order dismissing the proceedings for want of due despatch pursuant to r 12.7(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) and an order that Ms Moore’s claim to the relief set out in the Amended Statement of Claim against Ms Rodney as executor of the deceased’s estate be barred pursuant to s 93(2) of the Probate and Administration Act. Ms Moore informed the Court that she opposed the motion, and that she wished to rely on evidence in opposing it. Ms Moore also informed the Court that her affidavit evidence in chief in relation to her claim in the Amended Statement of Claim was ready, that it had been sworn or affirmed, and that a copy of it bearing her signature and the signature of the witness before whom she had sworn or affirmed it was on her computer, which she had with her. I stood the matter down in the list to provide Ms Moore with an opportunity to send an email to Ms Rodney’s solicitor attaching her affidavit in chief and the exhibits to it by way of service.
At 11:07am, Ms Rodney’s solicitor received an email from Ms Moore stating: “Please find herewith my Affidavit evidence and exhibit bundle”. The email did not attach any documents. Ms Rodney’s solicitor replied by email at 11:09am: “Nothing was attached to your email”. When the matter was re-called in the Equity Duty Judge List shortly after 11:00am, the Court was informed of that development. Ms Moore said that she would “just have to check why the internet didn’t pick it up”. I informed Ms Moore that the email had been received, and that the problem was that it did not contain the attachments described. The problem did not appear to be one of internet connectivity. Ms Moore assured the Court that her affidavit evidence in chief would be served later that day. Ms Rodney’s motion for summary dismissal and a barring order was listed for hearing on 21 May 2026 and Ms Moore was directed to file and serve any evidence on which she intended to rely in relation to the motion by 10:00am on 20 May 2026. Ms Moore was informed that if she did indeed serve her affidavit in chief before the hearing of the motion on 21 May 2026, that would likely be relevant to the determination of the motion. Ms Moore replied: “It will be done today, your Honour”.
Ms Moore appeared at the hearing of Ms Rodney’s motion for summary dismissal and a barring order on 21 May 2026. Her affidavit in chief had still not been served. Ms Moore informed the Court that she had an affidavit and several annexures on her computer on which she wished to rely in opposition to the motion. Ms Moore was permitted to email that affidavit and the annexures to my Associate for printing and was then taken to a Justice of the Peace in the Registry to affirm her affidavit so that she could rely on it at the hearing of Ms Rodney’s motion. This delayed the hearing of the motion considerably on that day.
Ms Moore’s affidavit affirmed on 21 May 2026 annexed a letter dated 22 February 2026 from her treating psychiatrist, Dr Nicole Melidonis, who has been treating Ms Moore for over seven years. Dr Melidonis stated that, in her clinical opinion, Ms Moore meets the diagnostic criteria for complex post-traumatic stress disorder arising from a history of domestic violence and coercive control, and a chronic anxiety disorder. Dr Melidonis stated that Ms Moore’s conditions result in significant functional impairment, particularly “during periods of heightened stress”. The impairments include executive dysfunction, heightened anxiety when faced with tasks involving scrutiny or perceived risk of error, avoidance and ‘freeze’ responses when overwhelmed and dissociative responses during acute psychological stress. Dr Melidonis stated that Ms Moore’s symptoms persist and continue to impair her functioning despite treatment. Dr Melidonis stated that, in her opinion, Ms Moore’s condition materially impairs her ability “during periods of heightened symptoms” to complete and finalise complex legal documents, to make decisions required to bring those documents to completion, and to take the step of serving such documents within required timeframes, despite her genuine intention to comply with those obligations. Dr Melidonis stated that Ms Moore’s condition is characterised by fluctuating capacity, so that she may be capable of preparing substantial material at one point in time but may subsequently become unable to complete or finalise tasks due to escalation of symptoms.
Dr Melidonis’ letter did not describe the nature or severity of “heightened stress” conditions that, in her opinion, cause or exacerbate functional impairment in Ms Moore. Nor did Dr Melidonis provide a history taken from Ms Moore identifying periods of time during which Ms Moore perceives that she has experienced “heightened symptoms”. Dr Melidonis’ description of the impact of Ms Moore’s condition on her ability to comply with court deadlines during the (unidentified) periods of “heightened symptoms” was not supported by an explanation of the reasons for her opinion concerning the impact at each time since 29 October 2025 when Ms Moore has been due to serve her affidavit evidence in chief in accordance with the orders made by the Court. Dr Melidonis’ letter did not address the facts that, at the same time as failing to serve her affidavit evidence in chief during the whole of the period since 29 October 2025, Ms Moore has: (1) affirmed and served an affidavit on 5 February 2026 concerning the reasons for her failure to serve her affidavit evidence in chief prior to that time; (2) affirmed an affidavit on 5 March 2026 seeking leave to rely on affidavit evidence in chief served after 9 February 2026 and attributing her delay in finalising and serving her evidence to Ms Rodney’s failure to produce documents in respect of which Ms Moore issued a notice to produce; (3) filed a notice of motion on 30 March 2026 seeking leave to rely on “the sealed affidavit evidence in chief and accompanying exhibit bundle served on the Defendant” (although no such material had been served on the defendant) and affirmed an affidavit on 27 March 2026 in support of that motion in which Ms Moore attributed her delay in serving her affidavit evidence in chief to the time taken to process her application for a waiver of court filing fees and to an “anxiety disorder”; and (4) prepared and served four pages of written submissions opposing Ms Rodney’s notice of motion for summary dismissal and a barring order. Dr Melidonis may not have been informed about those facts. Indeed, many of them occurred after she wrote her letter on 22 February 2026.
Ms Moore’s affidavit affirmed on 21 May 2026 attributed her failure to serve her affidavit evidence in chief to complex post-traumatic stress disorder, anxiety disorder, and the symptoms described in Dr Melidonis’ letter dated 22 February 2026.
Ms Moore deposed that, “**[a]t the relevant times my psychiatric condition genuinely impaired my ability to finalise and complete the act of serving my evidence.” Ms Moore deposed that she “intended to comply” with the orders made by the Court in relation to the service of her affidavit evidence in chief “but became unable to complete the final step of service due to the escalation of my symptoms”. Ms Moore deposed that the “primary cause” of her non-compliance with the orders “was the functional impairment arising from my condition”. Ms Moore deposed that:
“When my symptoms escalate, I become excessively focused on ‘doing it perfectly’ and on avoiding any perceived procedural error. This leads me to fixate on issues like ‘completeness’ (missing documents) and process concerns (filing/sealing/fees), and to experience distress at the idea of serving anything I believe might be correct.
I understand the Defendant says affidavits do not attracted a filing and that I was told I could serve without filing. I accept those points.
The reason I still did not serve was that may symptoms prevented me from taking the final steps.”
This evidence was given in general terms and without reference to any particular date for the service of Ms Moore’s affidavit evidence in chief under the numerous orders that the Court has made since 29 September 2025. Neither Ms Moore’s evidence nor Dr Melidonis’ letter identified particular occasions on which Ms Moore is said to have experienced “heightened stress”, “heightened symptoms” or “escalated” symptoms. Ms Moore’s affidavit does not directly or indirectly explain how her condition is said to have prevented her from serving her affidavit evidence in chief since 29 October 2025 yet has not prevented her from taking the steps referred to at [27] above.
Ms Moore did not annexe to her affidavit the report that she had informed the Court during the hearing on 8 May 2026 she was obtaining from her treating psychologist. Nor did she explain her failure to do so. Ms Moore offered no explanation for her continued failure to serve her affidavit evidence in chief after 8 May 2026 despite the “cure and remedy” that she had informed the Court about on that date: see [20] above.
In her submissions emailed to my Associate on 21 May 2026 opposing the motion for summary dismissal and a barring order, Ms Moore stated that: “The Plaintiff confirms that her affidavit evidence in chief and exhibits was filed on 13 May 2026”. That is untrue.
In her affidavit affirmed on 21 May 2026, Ms Moore deposed (inconsistently with her written submissions referred to immediately above):
“I confirm that my affidavit evidence in chief and exhibit material are being filed and served today.
I am receiving assistance from a Domestic Violence Social Worker with a legal backgroundsupport [sic] worker today [sic] to review and finalise my material.”
At the hearing of the motion on 21 May 2026, I considered whether Ms Moore is under a legal incapacity such that she requires a tutor to carry on these proceedings. Having regard to the steps that Ms Moore has taken in the proceedings to date – the filing of the Statement of Claim and Amended Statement of Claim and the steps referred to at [27] above – and taking into consideration the articulate written and oral submissions that Ms Moore has made advocating her position at the hearings before me on 8, 12 and 21 May 2026, I did not consider that Ms Moore was under a legal incapacity. [1] I remain of that view. Dr Melidonis’ letter dated 22 February 2026 does not suggest that the impairments said to flow from Ms Moore’s condition during periods of heightened stress deprive her of capacity to represent herself in these proceedings. Out of abundant caution I asked Ms Moore during the hearing on 21 May 2026 whether she felt capable of representing herself. Ms Moore assured me emphatically that she does feel capable.
Ms Moore’s affidavit evidence in chief was not served following the hearing on 21 May 2026.
On Monday, 25 May 2026, Ms Moore sent an email to my Associate purporting to seek “directions concerning compliance with orders made by his Honour Justice Lindsay on 9 February 2026” and stating that “[i]n the absence of further directions, I propose to proceed with service of my affidavit and exhibit bundle upon the defendant”.
The solicitor acting for Ms Rodney in these proceedings gave the following evidence in his affidavit sworn on 1 May 2026 on which Ms Rodney relied in support of her motion:
“The beneficiaries of the estate are suffering prejudice as a result of the ongoing delay in this matter. Although there was a partial distribution prior to the plaintiff notifying her claim, the remainder of the estate remains undistributed. Much of the remaining estate involves substantial shareholdings in public companies which are given in the will to various different beneficiaries in respect of which dividends are continuing to be received into my firm’s trust account. They are dividends that would have gone into the hands of the beneficiaries had the shares being [sic – been] transferred to those beneficiaries.
The beneficiaries are losing the benefit of receiving the shareholdings. Although dividends are being received by the executor in trust on their behalf, the beneficiaries are being deprived of the ability to become owners of the shareholdings and are therefore deprived of the ability to deal with them.
The deceased estate itself is having to bear additional costs other than in connection with this litigation. They are costs in relation to the administration of the estate, including additional costs resulting from the shareholdings having to be managed rather than those shareholdings being transmitted to the beneficiaries.
Generally in relation to the estate, the defendant is unable to complete the administration.”
As I have explained above, Ms Rodney’s motion seeks an order dismissing the proceedings for want of due despatch pursuant to r 12.7(1) of the UCPR and an order that Ms Moore’s claim to the relief set out in the Amended Statement of Claim against Ms Rodney as executor of the deceased’s estate be barred pursuant to s 93 of the Probate and Administration Act. Counsel for Ms Rodney emphasised that those orders are sought together. Ms Rodney does not press her application for dismissal in the event that the Court would not be minded to make the barring order.
For the reasons that follow, I have determined that the proceedings should be dismissed for want of due despatch under r 12.7(1) of the UCPR and that a barring order should be made under s 93 of the Probate and Administration Act, but that entry of both orders should be stayed for a period of 28 days during which it will be open to Ms Moore to serve her affidavit evidence in chief and to file and serve a notice of motion seeking: (1) an order pursuant to r 36.16(1) of the UCPR setting aside the dismissal order and the barring order; and (2) an order granting leave to Ms Moore to rely at final hearing on any such affidavit evidence in chief that has been served on Ms Rodney within the 28 day period and prior to the filing of the notice of motion. At the same time as filing and serving any such notice of motion, Ms Moore must file and serve an affidavit in support of the motion which provides details of when and how the affidavit evidence in chief (including any annexures or exhibits to the affidavit) was served on Ms Rodney and contains any other evidence on which Ms Moore wishes to rely in support of her application for leave to rely on the affidavit evidence in chief (including any annexures of exhibits to the affidavit) at any final hearing of these proceedings (if the dismissal order and barring order are set aside).
The Court must seek to give effect to the overriding purpose in s 56 of the Civil Procedure Act 2005 (NSW) in determining Ms Rodney’s motion to dismiss the proceedings for want of due despatch under r 12.7(1) of the UCPR. The overriding purpose is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. The essential question is whether or not, in all the circumstances of this case, justice requires that the proceedings should be dismissed. In my opinion, justice does require that these proceedings be dismissed, on the terms that I have outlined above. For a period of seven months since 29 October 2025, Ms Rodney has been delayed in carrying out her duty to administer the deceased’s estate and to distribute the assets of the estate in accordance with his last will, and the beneficiaries named in the will have been delayed in receiving the assets bequeathed to them, due to Ms Moore’s repeated failure to comply with the directions made by the Court for the service of her affidavit evidence in chief. Although Dr Melidonis’ letter dated 22 February 2026 was not prepared in accordance with the Expert Witness Code of Conduct in Schedule 7 to the UCPR, I am prepared for the purpose of this motion to accept that Ms Moore suffers from complex post-traumatic stress disorder and anxiety on the basis of Dr Melidonis’ letter and on the basis of Ms Moore’s evidence to similar effect. I also accept that those conditions result in the functional impairments described by Dr Melidonis and Ms Moore from time to time. However, for the reasons explained at [26]-[30] above, neither Dr Melidonis’ letter nor Ms Moore’s evidence supports a finding that such impairments have caused Ms Moore’s failure to serve her affidavit evidence in chief at any particular time, or at all times, during the period of seven months that has elapsed since 29 October 2025. If the proceedings are not dismissed for want of due despatch, the history of this matter gives rise to a real risk that the proceedings will be delayed indefinitely. It would be unjust to the executor and to the beneficiaries if, having already suffered a seven-month delay at the hands of Ms Moore, these proceedings were to remain on foot with the prospect of Ms Moore causing further delay of indefinite duration. On the other hand, it is a grave step to dismiss a claim for want of due despatch, without a hearing on the merits, particularly in conjunction with an order barring any fresh proceedings in respect of the claim under s 93 of the Probate and Administration Act. I do not consider that it is necessary for me to form any view about the merits of Ms Moore’s claims in order to characterise that as a grave step.
In my opinion, the terms of the dismissal that I have outlined achieve a just outcome by recognising the interests of Ms Rodney and the beneficiaries of the deceased’s last will in the administration of the estate being finalised without undue delay, the interests of Ms Moore in having her claim determined on its merits, and the public interest in the efficient conduct of court proceedings as part of the public interest in the administration of justice. I consider that the period of 28 days is ample time for Ms Moore, with the social worker support that she has informed the Court is now available to her, to serve her affidavit evidence in chief that the Court has been told on numerous occasions is ready to be served (including any annexures or exhibits to the affidavit), and to file and serve the notice of motion and supporting affidavit referred to at [39] above. As discussed at [27] above, Ms Moore has previously filed and served a notice of motion, and affidavits in support of her notice of motion without apparent difficulty.
The relevant terms of ss 92 and 93 of the Probate and Administration Act are set out at [4] and [8] above.
The legal principles that are to be applied in an application for a barring order under s 93 were summarised by Hallen J in English v Stewart. [2]
The starting point is that an executor or administrator of a deceased’s estate is responsible for the proper distribution of the assets among those entitled to them. [3]
Section 92 of the Probate and Administration Act is designed to enable an executor or administrator to distribute the assets of the deceased’s estate to the beneficiaries, leaving out of account any claims against the estate of which the executor or administrator does not have notice, subject to waiting for six months after the death of the deceased, publishing the notice referred to in s 92(1)(b), and waiting for the expiry of the period of at least 30 days specified in the notice. In this way, s 92 facilitates the due administration of the deceased’s estate. [4]
However, s 92 does not apply to a claim of which the executor or administrator had notice at the time of the distribution. [5] As Hallen J explained: [6]
“… if the executor or administrator knows, or has notice, of a claim, then she, he or it distributes at her, his or its, peril. If the executor or administrator wishes to bar a claim of which he, she, or it, has notice, then he, she, or it must proceed by giving notice under s 93 of the PA Act, the effect of which would require the claimant to institute a proceeding within three months, failing which the claim would be barred.”
“It can be seen that s 93 provides a mechanism for giving reasonable notice to a claimant to prosecute the claim, and, in the absence of such proceedings being commenced, to obtain an order from the Court barring the proposed claim. By s 93, relevantly, the executor or administrator is relieved from liability for claims of which she, he, or it, has had notice, if the necessary steps are taken and … she, he, or it, subsequently obtains the order of the Court barring the claim.”
“In Olsen v James [2020] NSWSC 1015, Parker J at [118] described the s 93 procedure as ‘the most direct way of bringing the question about the potential claim … to a head’. It requires a potential plaintiff to “put up or shut up”, particularly in respect of allegations which impact on the proper administration of the deceased’s estate.”
“62. Ordinarily, the service of a s 93 notice, and the failure of the person upon whom it is served to prosecute the claim, provides a jurisdictional basis for the court to then make an order barring the claim, if in the circumstances the court thinks that is appropriate.
- Of course, if the s 93 notice is given and proceedings are then brought in response to that notice, no question of protecting the executor or administrator will arise. The executor or administrator will simply defend those proceedings in the usual way.”
“…
(e) The court is not required to undertake a substantive assessment of the merits of the claim that has been made. However, if it appears that the claim has merit, that may be taken into account when considering if it should be barred: Graham v Graham [2015] NZHC 1571 at [14] (Dunningham J). Even then, and if there is an explanation for the failure to initiate the claim at the date of the hearing, the court may only make such other order in respect of the application as it thinks just and equitable, having regard to the circumstances of the case.
(f) Naturally, a court is reluctant to bar a party from pursuing a claim that may have merit. However, the period of notice and the requirement of an application of this kind recognises that this may be an available outcome in certain circumstances.”
According to the submissions made by counsel for Ms Rodney, and according to my own research, all of the cases to date in which barring orders have been considered under s 93(2) of the Probate and Administration Act are cases in which the claimant against the estate has failed to commence proceedings after being served with a notice under s 93(1). The discussion of the object and operation of s 93 in those cases assumes that a proceeding, once commenced by the claimant, will be prosecuted in the usual way. [11]
In my opinion, it is plain from the ordinary meaning of the words used in s 93(1) that the sub-section entitles the executor or administrator to give notice to a claimant requiring them to take proceedings to enforce their claim and to prosecute their claim. Those words acknowledge that the prosecution of a claim requires more than merely taking (or commencing) proceedings. The words “and to prosecute the person’s claim” at the end of s 93(1) would otherwise have no work to do. [12] The taking (or commencement) of proceedings is but a first step in prosecuting a claim. This construction is consistent with the statutory purpose of the scheme created by ss 92 and 93, being to facilitate the due administration of estates by providing a mechanism through which executors and administrators may require claims of which they are on notice to be prosecuted. [13] The notice that Ms Rodney served on Ms Moore under s 93(1) of the Probate and Administration Act in the present case required Ms Moore to take proceedings and to prosecute her claim. [14]
In Kadiev v Petrov, [15] Meek J considered the four preconditions that must be satisfied in order for the Court to have jurisdiction to make a barring order under s 93(2) of the Probate and Administration Act: His Honour said: [16]
- … the four preconditions referred to in the opening part of s 93(2) (service of notice; expiry of time; application and prosecution of claim) do not bear all the same character.
- The first three preconditions (service of notice; expiry of time and application), prima facie, in both wording and context bear a precise and fixed character. Service is something susceptible of being precisely proved, as is expiry of time and the bringing of an application.
- On the other hand, the fourth requirement (prosecution of claim) of its nature calls for some assessment by the Court of what is necessary to prosecute a claim and the steps being taken by the claimant to do that. It is clear from the interaction between the provisions of s 93(1) and (2) that the means by which the claimant ‘prosecutes’ a claim involves at least the claimant ‘tak[ing] proceedings to enforce ... the claim’ (i.e. commencing court proceedings): s 93(1).
- Once proceedings are commenced either by the claimant, or the executor/administrator, the matter comes under the supervision of the Court and the claim is practically speaking resolved in the same way as ordinary civil proceedings are resolved within the court system. Helpfully, in English v Stewart [2022] NSWSC 268 (English v Stewart), Hallen J set out a number of considerations regarding the procedure and principles in relation to an application to bar a claim: at [64].”
Consistently with my construction of s 93(1) above, and consistently with Meek J’s observations in Kadiev v Petrov at [74], it is my opinion that the fourth precondition to the Court’s jurisdiction under s 93(2) – that the claimant does not satisfy the Court that they are prosecuting their claim against the deceased’s estate – may be satisfied if the claimant has not commenced proceedings or at all, or if they have commenced proceedings but have failed to prosecute those proceedings to final hearing for reasons that cannot be attributed to any other party to the proceedings. I accept the submission to that effect made by counsel for Ms Rodney.
The fourth precondition is satisfied in the present case for all of the reasons explained at [40] above.
The other three preconditions are also satisfied: the s 93(1) notice was served on Ms Moore on 28 February 2025; [17] more than three months has expired since that notice was served; and the executor has made the application for a barring order under s 93(2).
The Court’s jurisdiction under s 93(2) of the Probate and Administration Act to make a barring order subject to such conditions (if any) as the Court thinks just and equitable, or to make such other order in respect of the application as it thinks just and equitable having regard to the circumstances of the case, is therefore enlivened.
In my opinion, the jurisdiction should be exercised in the present case to make the barring order sought by Ms Rodney, subject to the conditions outlined at [39] above. I consider that the order, subject to those conditions, is just and equitable in these case for the reasons explained at [40]-[41] above and for the following further reasons. As counsel for Ms Rodney submitted, an order dismissing the proceedings for want of due despatch under r 12.7(1) of the UCPR without a barring order under s 93(2) of the Probate and Administration Act would not preclude Ms Moore from commencing fresh proceedings against the deceased’s estate. [18] Ms Rodney would therefore remain on notice of Ms Moore’s intended claim following the dismissal of the proceedings, and would therefore need to either await the commencement of fresh proceedings or issue a new notice under s 93(1) of the Probate and Administration Act. I accept the submission made by counsel for Ms Rodney that the sorry history of this matter indicates that, in that scenario, there would be a real risk that Ms Moore would commence fresh proceedings but would then fail to prosecute those proceedings by non-compliance with Court orders that are designed to progress the proceeding towards final hearing. Thus, if the present proceedings were to be dismissed pursuant to r 12.7(1) of the UCPR without a barring order being made at the same time, this would be unlikely to facilitate the due administration of the deceased’s estate.
The costs of the proceedings should follow the event of the dismissal which has been occasioned by Ms Moore’s failure to prosecute the proceedings with due despatch. However, the costs order will be included in the orders that Ms Moore will have leave to apply to set aside by filing and serving the notice of motion referred to at [39] above after serving her affidavit in chief during the 28-day period in which the entry of the dismissal order, the barring order and the costs order will be stayed.
For all of those reasons, the orders of the Court are as follows:
Order pursuant to r 12.7(1) of the Uniform Civil Procedure Rules 2005 (NSW) that these proceedings are dismissed for want of due despatch.
Order pursuant to s 93(2) of the Probate and Administration Act 1898 (NSW) that the plaintiff’s claims set out in the Amended Statement of Claim filed in these proceedings are barred as against the executor of the estate of the late Vladimir Viktorovich Rodney, who died on 25 February 2024.
Order that the plaintiff is to pay the defendant’s costs of the proceedings.
Order that the entry of orders 1, 2 and 3 above be stayed for a period of 28 days from the date of these orders (that is, until and including 29 June 2026).
In the event that the plaintiff serves her affidavit evidence in chief on the defendant in these proceedings within 28 days of the date of these orders, grant leave to the plaintiff to file and serve within 28 days of the date of these orders (that is, until and including 29 June 2026):
(a) a notice of motion seeking:
(i) an order pursuant to r 36.16(1) of the Uniform Civil Procedure Rules 2005 (NSW) setting aside orders 1, 2 and 3 above; and (ii) an order granting leave to the plaintiff to rely at final hearing on any affidavit evidence in chief served on the defendant within 28 days of the date of these orders; and
(b) an affidavit in support of the notice of motion referred to in (a) above.
**********
Di Giannantonio by his tutor Tucker v Di Giannantonio [2026] NSWCA 69 at [74] (Griffiths AJA, Ward P and Free JA agreeing), referring to Mahmoud v Ghahreman [2026] NSWCA 52 at [23]-[31] (Kirk JA, Michelmore JA and Griffiths AJA agreeing).
[2022] NSWSC 268 at [44]-[64].
Ibid at [45].
Ibid at [46]-[48].
Ibid at [49]-[53].
Ibid at [54].
Ibis at [56].
Ibid at [60]; [2020] NSWSC 1015 at [118].
[2022] NSWSC 268 at [62]-[63].
Ibid at [64].
See English v Stewart [2022] NSWSC 268 at [63], extracted at [49] above.
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [71] (McHugh, Gummow, Kirby and Hayne JJ).
Palmanova Pty Ltd v Commonwealth of Australia (2025) 99 ALJR 1362; [2025] HCA 35 at [4]-[5] (Gageler CJ, Gordon, Jagot and Beech-Jones JJ).
See [7] above.
[2023] NSWSC 1031.
Ibid at [72]-[75].
See [7] above.
Civil Procedure Act 2005 (NSW), s 91.
Moore
Rodney
[2026] NSWSC 496
(2025) 99 ALJR 1362
(1998) 194 CLR 355