Videnovic v Todorovic

Supreme Court of NSW|2023-02-09|Before: Hallen J

Solicitors: Your Mobile Lawyer (Plaintiff) File Number(s): 2022/16975 Publication restriction: N/A

Introduction

The Plaintiff, Dragica Videnovic (also known as Gaga Videnovic), is the executor named in the Will dated 9 April 2014 of Masinka Todorovic (the deceased).
The deceased died on 4 January 2019 leaving property in New South Wales. Her Death Certificate reveals the causes of death as (a) cerebrovascular accident (3 days), (b) atrial fibrillation (4 years) and carcinoma of thyroid (20 years). The informant shown on the Death Certificate is Dragan Todorovic, the Defendant named in these proceedings. (A Certificate of Death issued by the Registrar of Births, Deaths and Marriages in New South Wales is admissible in legal proceedings as evidence of the entry to which the certificate relates, and the facts recorded in the entry: Births, Deaths and Marriages Registration Act 1955 (NSW) s 49(2).)
This Court granted Probate of the deceased's Will to the Plaintiff on 22 March 2021.

The Proceedings

Regrettably, it is next necessary to provide a somewhat lengthy procedural history to demonstrate the opportunities that the Defendant has been given to advance any claim against the estate of the deceased and to explain, at least in part, the Court's conclusions.
On 5 March 2020, the Plaintiff's solicitor received correspondence from Tony Sutton, solicitor, of Jordan's Law Practice, alleging that the deceased had not properly distributed the estate of the deceased's husband, Stanimir, and that the deceased's estate was liable for the modest legacies that were payable to the deceased's husband's relatives under Clause 3 of Stanimir's Will, together with the statutory rate of interest on the unpaid legacies: Affidavit of Dragica Videnovic, 26 November 2021 at annexure "C".
The Plaintiff's solicitor also referred to earlier correspondence sent to the Defendant's solicitor: "We refer to our earlier correspondence to you where we put you on notice not to make any distribution under the estate of Masinka Todorovic until such time as all issues arising out of Masinka Todorovic's administration of the Estate of Stanimir Todorovic are resolved. We continue to put you on such notice."
However, none of the earlier correspondence is in evidence.
On 5 March 2021, the Plaintiff's solicitor wrote to the Defendant's solicitor enclosing a notice disputing the Defendant's claim pursuant to s 93 of the Probate and Administration Act 1898 (NSW).
The Plaintiff's solicitor also referred to the "various correspondence in relation to the abovenamed estates" that the Defendant's solicitor has allegedly sent. However, apart from the correspondence dated 5 March 2020, no other correspondence has been provided by the Defendant's solicitor.
On 9 March 2021, at 6:22 p.m., the Defendant's solicitor sent the following email to the Plaintiff's solicitor: "…I refer to your correspondence dated 5th March, 2021 including correspondence dated 8th March, 2021 enclosing, inter alia, Notice under S93 of the Probate and Administration Act. Please be advised that we do not hold instructions to accept service of the Notice. We kindly suggest you serve Mr Dragan Todorovic directly."
A copy of the correspondence dated 8 March 2021, said to have been sent by the Plaintiff's solicitor, which was referred to in the email, was not provided to the Court.
Following Probate being granted of the deceased's Will, the Plaintiff published a Notice of Intended Distribution via the NSW Online Registry website on 29 March 2021.
The Supreme Court Rules 1970, Part 78, r 93(a) requires that a notice under s 93 of the Probate and Administration Act, "must be published" on "the New South Wales online Registry website" if the notice relates to the intended distribution of the estate of a deceased person in relation to which a grant of representation has been made by the Court.
On 7 April 2021, the Plaintiff personally served on the Defendant a further notice disputing the Defendant's claim pursuant to s 93 of the Probate and Administration Act 1898 (NSW): Affidavit of Dragica Videnovic, 26 November 2021 at par 22; Tcpt, 9 February 2023, p 48(43-46).
On 16 June 2021, the beneficiary, Desanka, asserted that she had not had any discussions, or negotiations, with the Defendant about Masinka's estate: Affidavit of Dragica Videnovic, 26 November 2021 at par 24.
On 5 July 2021, the Plaintiff's solicitor received correspondence from Jordan's Law Practice, which asserted that the Defendant was informally negotiating with the deceased's family members in Serbia and proposed a conference with the Plaintiff to finalise the matter: Affidavit of Dragica Videnovic, 26 November 2021 at annexure "H". There is no evidence that any conference eventuated.
On 20 January 2022, the Plaintiff filed the Summons, seeking an order pursuant to s 93 of the Probate and Administration Act 1898 (NSW) barring an alleged claim of the Defendant against the estate of the deceased.
There is an affidavit of service, sworn 10 February 2022, of Clinton Portors, a licensed process server, deposing to personal service, on 3 February 2022, upon the Defendant of the Summons and affidavit made 26 November 2021 of the Plaintiff.
At the hearing, the Defendant remembered that he had received the documents identified in the affidavit: Tcpt, 9 February 2023, p 26(48).
I shall return to what the Defendant has done during the conduct of these proceedings. As will be read, he has attempted to assert a claim, on behalf of himself, and others, who he is said to represent. However, no proceeding to enforce any claim was commenced by the Defendant within a period of 3 months, from the date of service of the s 92 notice, or otherwise, since these proceedings were commenced.
The Plaintiff's Summons was first listed for directions on 25 February 2022 and has been mentioned, in the Succession List, on many occasions thereafter. The Defendant has appeared at several different procedural hearings without legal representation, but sometimes, by counsel.
On 4 March 2022, noting that the Defendant had been given ample time to put on evidence, the Court directed him to file and serve any affidavits in support of any claim that he wished to make against the estate of the deceased by 4:00 p.m. on 25 March 2022. The matter was adjourned until 4 April 2022: Tcpt, 4 March 2022, p 1(48)-2(30).
On 4 April 2022, the Court, once again, suggested to the Defendant that he should obtain legal assistance, which suggestion was accepted by him. The Court noted that in the event the Defendant failed to obtain legal assistance, the matter would have to proceed. The matter was adjourned until 14 April 2022: Tcpt, 4 April 2022, p 1(48)-3(41).
On 14 April 2022, the Court adjourned the matter until 26 April 2022. On this occasion, the Defendant was represented by Ms V Chan. No directions were made, and the matter was adjourned until 26 April 2022.
On 26 April 2022, the Defendant was represented by Mr P Wiggins of counsel. The Court directed the Defendant to provide a draft Statement of Claim setting out his alleged claims by 4:00 p.m. on 6 May 2022. The matter was adjourned until 16 May 2022.
On 16 May 2022, Mr A Hill of counsel, who appeared for the Plaintiff, submitted that the Defendant had failed to press his claim by serving a Statement of Claim, despite being given the opportunity to do so by the Court: Tcpt, 18 July 2022, p 3(3-4).
However, the Defendant, by his then solicitors, Blunden & Montgomery (Mr S M Scott), had provided the Plaintiff with a draft Statement of Cross Claim, seeking various declarations and orders, on behalf of several claimants, in respect of the estate of Stanimir Todorovic. They were said to be relatives of Stanimir in whose names the alleged claims were said to be brought. (Stanimir, as will be read, was the husband of the deceased and predeceased him by many years.)
The Plaintiff asserted that the draft Cross Claim was defective in several ways, particularly in so far as it sought orders and declarations on behalf of persons who were not identified as parties in the proceedings.
Why a draft Cross Claim was provided rather than a Statement of Claim was not explained. It was suggested to counsel for the Defendant that consideration ought to be given to whether this was an appropriate means of pressing any claim, and whether fresh proceedings were required.
The Court also directed the Plaintiff to inform the Defendant whether she intended to proceed with the Summons by 4:00 p.m. on 30 May 2022. The matter was adjourned until 6 June 2022.
On 6 June 2022, the Court noted that the Plaintiff wished to proceed with the relief claimed in the Summons; extended the time for the Defendant to file and serve any evidence upon which he intended to rely to 4:00 p.m. on 20 June 2022; directed the Plaintiff to file and serve any further evidence in chief upon which she intended to rely by 4:00 p.m. on 20 June 2022; and directed each party to file and serve any evidence in reply by 4:00 p.m. on 4 July 2022. The matter was adjourned until 11 July 2022.
On 11 July 2022, Ms T Catanzariti, of counsel, appeared for the Defendant. She was unable to explain why the Defendant had not commenced any proceedings, by way of Statement of Claim, and accepted that he could do so if he wished. The matter was then stood over to 18 July 2022. The Court noted that if proceedings were commenced, on behalf of persons who were ordinarily resident outside Australia, security for costs might be ordered: Tcpt, 11 July 2022, p 3(40-50)-4(1-35).
On 18 July 2022, Ms Catanzariti again appeared and stated that the Defendant had not commenced proceedings because, amongst other reasons, discussions were taking place to try to resolve the threatened proceedings: Tcpt, 18 July 2022, p 1(17-28). Counsel requested an additional two weeks to enable proceedings to be commenced if the negotiations did not prove fruitful: Tcpt, 18 July 2022, p 2(41-46).
Upon that basis, the Court acceded to the application for adjournment but noted that in the event the Defendant did not commence proceedings by 4:00 p.m. on 25 July 2022, the orders sought in the Summons would be made. The matter was stood over to 1 August 2022: Tcpt, 18 July 2022, p 3(14-30).
On 30 July 2022, at about 12:23 p.m., the Court received an email from Mr S M Scott, the Defendant's solicitor, stating that he intended to file a Notice of Ceasing to Act.
On 1 August 2022, Mr C F Hodgson of counsel appeared, for the Defendant. In an email, sent to the Court at 9:41 a.m. on the same date, and, apparently, not sent to the Plaintiff's legal representatives, the Defendant wrote: "…To inform you that I am unable to come due to COVID 19-positive, started feeling sick afternoon 26.07.22, please check my medical certificate on attach file. Also I received email-30.07.2022 regarding Notice of ceasing to act from Blunden & Montgomery, details is on attach file. Note: can you please provide me extension of time for minimum 2 weeks and I will provide statements and application for further regarding the whole case,what happened in the period 19.07-29.07.22-New Deed of family Arrangement -Lawyers - FARRAGESINIDUNN, they presented a different settlement calculation - only $40000.(Desanka Ristovic given statements to 3 witness (sic) in Serbia -Mirjana Slovic .Prvoslav and Borika Ristovic around 19-20.07.2022 - "Desanka says 60% Ristovici, 40%Todorovici, no one told her about $40000.)"
In the circumstances, it was necessary to again adjourn the matter, this time until 18 August 2022.
On 18 August 2022, the Court adjourned the matter until 5 September 2022.
On 5 September 2022, Mr A Katsoulas of counsel appeared for the Defendant. He stated that his instructing solicitors had only recently been retained and that they needed time to investigate "what the Defendant says his claim is and what the basis of that is. I'm instructed that there are negotiations ongoing with the sole beneficiary of the estate": Tcpt, 5 September 2022, p 1(22-34).
The Court adjourned the matter until 19 September 2022, noting, amongst other things, that no further adjournment would be permitted other than for good reasons, supported by affidavit evidence: Tcpt, 5 September 2022, p 2(13-23).
On 19 September 2022, the Court directed the Defendant to file and serve any further evidence upon which he intended to rely by 4:00 p.m. on 4 October 2022; the Plaintiff to file and serve any evidence in reply by 4:00 p.m. on 18 October 2022; and adjourned the matter until 28 October 2022.
On 28 October 2022, the Court adjourned the matter until 3 November 2022.
On 3 November 2022, the Defendant appeared in person, without legal representation. He informed the Court that he wished to proceed to file a Statement of Claim and wished "to update my affidavit subject to this evidence late".
The Defendant informed the Court that he had been granted a Power of Attorney regarding Stanimir's Will by Olga Todorovic, Djuro Todorovic and Kata Mijailovic. The Court noted that in the event the Defendant made a claim in relation to Stanimir's estate as a representative of Olga, Djuro and Kata, and established that the legacies were not paid, the costs of the proceedings would far exceed the amounts obtainable under Stanimir's Will: Tcpt, 3 November 2022, p 6(38)-7(28); 9(46-48).
On 3 November 2022, there being no suggestion that any proceedings had been commenced by, or on behalf of, the Defendant against the Plaintiff, in relation to the deceased's estate, the Court allocated the hearing date of 9 February 2022, with an estimated duration of 1 day. On this occasion, the Defendant, again, appeared without representation, but indicated that he would be obtaining legal assistance for the hearing: Tcpt, 3 November 2022, p 11(21-24). The Court also made directions for the Defendant to file and serve any evidence upon which he intended to rely by 4:00 p.m. on 24 November 2022; the Plaintiff to file and serve any evidence in reply by 4:00 p.m. on 9 December 2022; each party to deliver in hard and soft copy an outline of submissions including an index of affidavits upon which they intended to rely by 4:00 p.m. on 24 January 2023. Additionally, the Court explained to the Defendant that he could be liable for the legal costs that had been incurred, and those yet to be incurred: Tcpt, 3 November 2022, p 10(6-35).

Email correspondence sent to the Court

In an email, sent to the Court at 9:29 p.m. on 8 February 2023, and, apparently, not sent to the Plaintiff's legal representatives, the Defendant wrote: "Please pass this (sic) details to His Honour Justice P Hallen regarding Request longer Adjournment subject to new evidence received on 07.02.2023, and I will attend to the court. The court hearing can start including my submission probably for half day. My previous barrister advise me on 31.01.2023 - have a commitment on 09.02.2023 all day in mediation. I try to organise other people but is short notice to act. After receiving (07.02.2023- afternoon) some strong evidence what I believe will be change the whole case, and also in contact with the Ristovic family to come to a settlement, Have organised a lawyer in Serbia. Please find details on attach files regarding further document to be presented to the court."
When the email was brought to my attention, it was necessary for my Associate, at my request, to respond, immediately, by email to the Defendant, stating that the email did not appear to have been sent to the Plaintiff's legal representatives and it would not be dealt with in Chambers. A copy of the Defendant's email and the attachments, with the Court's response, were forwarded, simultaneously, to the Plaintiff's solicitors.
At the commencement of the hearing, the Defendant appeared without legal representation. He acknowledged that the email sent to the Court on 8 February 2023 had not been sent to the Plaintiff's solicitors. (I mention these matters because of an earlier reminder, given by the Court, in writing, to the Defendant, that any correspondence addressed to the Court must also have been sent to the Plaintiff's legal representatives. The reminder appears to have been ignored.)
I have previously stated the principles that apply in relation to email correspondence addressed to the Court by litigants in person in Xiang bht Cao v Tong [2021] NSWSC 44 at [125] - [129], in which I wrote: "A litigant in person, whilst not being bound by Professional Rules that apply to solicitors and barristers, must remember, as must legal representatives, that: "Written communications between a party to litigation and the judge's associate should normally be confined to matters concerning practice or procedure. Communications including emails containing allegations, matters of substance or requests for substantive advice should not be forwarded to a judicial officer without the party's express agreement (save in an exceptional case warranted for example by an ex parte application). Unless the subject of express prior consent of the other parties, written communications should not include information or allegations which are material to the substantive issues in the litigation. In all circumstances, the other parties to the litigation should be copied in on any such correspondence. If a communication which apparently fails to comply with those requirements is received in chambers, it would be for judicial staff promptly to enquire whether the other party has been notified before engaging in any further exchanges with the sender. The ubiquity and prevalence of informal email communications between courts and litigants entails many advantages but, unless approached with an appropriate protocol by litigants and within judges' chambers, presents potential risks of the errors demonstrated in the present case." See: R v Fisher (2009) 22 VR 343 at 352 [38]-[39]; [2009] VSCA 100 at [38]-[39] (Redlich and Dodds-Streeton JJA). In Tugrul v Tarrants Financial Consultants Pty Limited (in liquidation) [No 2] [2013] NSWSC 1971, Kunc J, after referring to R v Fisher added, at [21]-[22]: "There should be no communication (written or oral) with a judge's chambers in connection with any proceedings before that judge without the prior knowledge and consent of all active parties to those proceedings. Particularly in relation to written communications, given the ubiquity and speed of emails, the precise terms of any proposed communication with a judge's chambers should be provided to the other parties for their consent. There are four exceptions to this: (1) trivial matters of practice, procedure or administration (e.g. the start time or location of a matter, or whether the judge is robing); (2) ex parte matters; (3) where the communication responds to one from the judge's chambers or is authorised by an existing order or direction (e.g. for the filing of material physically or electronically with a judge's associate); and (4) exceptional circumstances. There are three other matters. First, any communication with a judge's chambers which falls into any of the categories set out in sub-paragraphs [21] (2), (3) and (4) above should expressly bring to the addressee associate's or tipstaff's attention the reason for the communication being sent without another parties' knowledge or consent. Second, where consent has been obtained, that fact should also be referred to in the communication. Third, all written communications with a judge's chambers in relation to proceedings should always be copied to the other parties." More recently, in Sirola & Sirola [2016] FamCA 620, McClelland J, at [15], added: "… if consent to communicate with a Judge's chambers cannot be obtained from the other party or parties, then the party seeking to communicate with the Judge should make a formal application for the matter to be listed before the Judge so that the argument that the party wishes to present can take place in open court. It goes without saying that open justice is a fundamental aspect of procedural fairness that is foundational to proceedings before all Australian courts." Also see, Contract Mining Services Pty Ltd v Adelaide Brighton Cement Limited [2020] SASC 69 at [28] (Livesey J)."

Application for adjournment

As stated, at the commencement of the hearing, the Defendant, orally, made the application for an adjournment. Counsel for the Plaintiff opposed the application.
For that adjournment application, with the consent of counsel for the Plaintiff, I read, the attachments to the email that the Defendant had previously sent. The attachments included a copy of email correspondence, sent by the Defendant, to different persons or entities. The earliest email was dated 25 January 2023 and was addressed to the NSW Trustee and Guardian (NSWT&G) seeking various documents; another, dated 23 July 2019, was addressed to the Department of Foreign Affairs and Trade seeking documents relating to Stanimir and to the deceased; and the third, dated 3 February 2023, was addressed to the Commonwealth Bank of Australia, raising a complaint made against the Bank for its failure to produce documents.
The Defendant also relied upon two affidavits, both of which were said to have been sworn on 24 March 2022. The later one was not sworn on that date, or if it had been, it was not sent to the Court until it was sent with an email dated 25 January 2023 enclosing what were said to be "submissions". In any event, the affidavits appear to be identical, but the annexures attached to the affidavit received in January 2023 included additional material relating to Masinka's guardianship/financial management, the Čačak court proceedings, a purported Deed of Family Arrangement signed by Desanka, and the draft Cross Claim.
(It was not obvious, from the email sent to the Court, that the "affidavit" sent on 25 January 2023, had also been sent to the legal representatives of the Plaintiff. At my request, on 8 February 2023, an email was sent to the Defendant reminding him that a copy of that affidavit should have been served. He responded immediately, saying that he would do so.) In the circumstances, and as the second "Affidavit" annexed documents that were relevant to the proceedings, I permitted the affidavit to be read.
Another matter raised by the Defendant related to the failure to have the Plaintiff available for cross-examination. No reference was made to the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") r 35.2 which, relevantly, provides: (1) A party may, by written notice served on the party serving or proposing to use an affidavit, require the attendance for cross-examination of the person by whom the affidavit has been made. (2) Such notice is to be given a reasonable time before the time at which the person is required to attend for cross-examination. (3) If reasonable notice of such a requirement has been given in respect of an affidavit, and the deponent does not attend for examination, the affidavit may not be used unless the deponent is dead or unless the court orders otherwise. (4) If a person making an affidavit is cross-examined, the party using the affidavit may re-examine the person.
The Defendant did not suggest that he had given written notice that the Plaintiff was required to be cross-examined. However, he said that he had stated orally that she would be required: Tcpt, 9 February 2023, p 28(25-30).
Even if that had been established, I would have allowed the admissible parts of the Plaintiff's affidavit to be read without cross-examination, as it did not seem that the facts asserted were likely to be seriously in dispute.
The Court then asked the Defendant to provide the reasons for the adjournment. He provided three. First, he wished to investigate, by way of forensic evidence, documentation, as to the validity of the signature found in Stanimir's Will: Tcpt, 9 February 2023, p 4(30). Second, he wanted to examine the correctness and validity of the Will dated 9 May 2014 of the deceased, alleging that she had committed fraud: Tcpt, 9 February 2023, p 5(15-20). Finally, he wished to challenge another Will, allegedly made sometime between October 2013 and June 2014, which was not in evidence, that the deceased had made: Tcpt, 9 February 2023, p 7(35-37); p 11(50)-12(1-12).
The Defendant provided no reasons why the documents said to be "strong evidence" had not been sought earlier or explain why he had failed to make any earlier application for an adjournment. Nor did he provide any evidence of the identity of counsel, or the steps, if any, he had taken, to obtain other legal representation.
Furthermore, although the Defendant had alleged that the deceased lacked testamentary capacity, this was not the subject of any "claim" currently before the Court: Affidavit of Dragan Todorovic, 24 March 2022 at par 50.
It was pointed out that even if Stanimir's Will were found to be invalid, as the Defendant was not related, by blood, to the deceased, he was not, otherwise, a person with any "interest" in her estate.
Counsel for the Plaintiff, in opposing the application, stated (Tcpt, 9 February 2023, p 15(26-50)-16(1)): "…this late application at the commencement of the hearing is resisted strenuously, your Honour. This summons was filed in January 2022. As your Honour has quite rightly observed, from time-to-time Mr Todorovic has appeared in his own right. He's also appeared by solicitors and counsel throughout the last year while the matter has been proceeding slowly and your Honour has made a number of directions with which Mr Todorovic has not complied in relation to evidence and specifically on the last occasion he was told to file and serve any further evidence by 4pm on 24 November and that outlines of submissions were to be provided by your Honour by 24 January. Neither of those directions were complied with and as at 11 o'clock yesterday morning, my instructing solicitor confirmed to me by email that she had received nothing whatsoever from Mr Todorovic in support of his case or this application. We're not on notice. I strenuously resist it because the Court's time has been wasted already… …There is nothing in the material presently before your Honour that Mr Todorovic has provided this morning which indicates that there is any real issue for him to agitate."

The Law - Adjournment application

Section 66 of the Civil Procedure Act 2005 (NSW) provides that the court may, at any time, and from time to time, by order, adjourn to a specified day any proceedings before it or any aspect of any such proceedings.
Any application for an adjournment must be considered and be exercised by reference to, and in accordance with, the overriding purpose of the civil procedure legislation and rules to facilitate the just, quick, and cheap resolution of the real issues in the proceedings: s 56 of the Civil Procedure Act. Of course, the Court must seek to act in accordance with the dictates of justice: s 58(1)(a)(ii), and consider other matters stated in ss 57 to 60 of the Civil Procedure Act.
In succession litigation, the effect of delay in the administration of the estate and the effect of beneficiaries named in the will of the deceased receiving that to which she, or he, is entitled, must also be considered. The relevant procedural history is also of importance.
In City of Sydney Council v Satara [2007] NSWCA 148 at [17], the Court of Appeal suggested that the approach the court should take, when applying case management provisions of the Civil Procedure Act is to strike a balance between the competing needs of the parties and determine whether, on balance, justice demands that a party should be given an indulgence. The ultimate aim of the court is to do justice.
In Alesco Corporation Limited v Te Maari [2015] NSWSC 469 at [34], I noted that the Defendant, in that case, was unrepresented, and concluded that this fact, alone, does not mean, "they should be treated... with greater consideration than litigants who are legally represented".
Had the Defendant had continuous legal representation, the problems that he faced at the hearing might have been reduced. Yet, as was stated in Knorr v CSIRO (No 3) [2012] VSC 529, by Beach J at [28] - [29]: "Again, as was said by Nettle and Osborn JJA in Karam v Palmone Shoes Pty Ltd '[t]here comes a point at which a self-represented litigant must be required to take responsibility for his choices'. Consistently with the principles enunciated in the Civil Procedure Act, Mr Knorr cannot be permitted to continue to subject the parties to this proceeding to significant cost and inconvenience and to add pointlessly to the load on the Court's already limited resources." (Omitting footnotes).
Also, more recently, in Duraisamy v Sydney Trains [2019] NSWCA 269, Bell P (as the Chief Justice then was) wrote at [25]: "I would add only this, and it is to note that Senior Counsel for the respondent relies upon the High Court's endorsement in Nobarani v Mariconte [2018] HCA 36; (2018) 92 ALJR 806 at [47] of the observation of Samuels JA in Rajski v Scitec Corporation Pty Ltd (Court of Appeal (NSW), 16 June 1986, unrep): 'the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement ... An unrepresented party is as much subject to the rules as any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent.'"
(A special leave application made to the High Court was refused as the application concerned matters of practice and procedure and the application of settled principles. It was written that there was no reason to doubt the correctness of the Court of Appeal's judgment: Duraisamy v Sydney Trains [2020] HCASL 8.)
A self-represented litigant cannot be allowed to stand behind the shield of his, or her, own lack of knowledge, especially when it continues to subject another party, or other parties, to cost and inconvenience and to add pointlessly to the load on the court's already limited resources: see, for example, Al Dakhili v Al Kheurallah [2023] NSWSC 47 at [66] (Meek J).
I also considered the issue of procedural fairness. However, it is to be remembered that in Rowe v Stoltze (2013) 45 WAR 116; [2013] WASCA 92, Newnes JA, with whom Pullin and Murphy JJA agreed, wrote at [51]: "... It is trite law that the rules of procedural fairness are not fixed or immutable. Procedural fairness is directed to avoid practical injustice and what is necessary to avoid practical injustice will depend upon the particular circumstances. In a curial setting there is no absolute right to have an action heard and determined on its merits. What the rules of procedural fairness require is that each party be provided with a reasonable opportunity to be heard. And what is a reasonable opportunity is to be judged nowadays not solely by reference to the interests of the parties but also having regard to the wider interest of other litigants waiting to have cases heard and the public interest in the proper and efficient use of the scarce public resources of the court. What might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources. Moreover, as between parties to an action what constitutes a reasonable opportunity to be heard must be judged having regard to the effect of undue delay, including the stress and costs caused by having litigation hanging over a defendant's head for an undue period." (Omitting citations)
The procedural history provides sufficient evidence of the opportunities given to the Defendant to be heard.
Naturally, in exercising the discretion to grant the adjournment, I had in mind the "dictates of justice", outlined in s 58 of the Civil Procedure Act, which requires the Court to consider, amongst other things, the position of both of the parties and not simply the position of the Defendant, as a litigant in person. The Court cannot be blind to the choices made by him.
I also remembered the "overriding purpose" prescribed by s 56 of the Civil Procedure Act, being the "just, quick and cheap resolution of the real issues", as elaborated by the matters referred to in s 57 of the Civil Procedure Act, including the just determination of the proceeding, the efficient disposal of the business of the court, the efficient use of available judicial and administrative resources, and the timely disposal of the proceeding, and all other proceedings in the court, at an affordable cost. A party to civil proceedings is also under a duty to assist the court to further the overriding purpose: s 56(3) of the Civil Procedure Act.
The "elimination of delay" in ss 59 and 60 of the Civil Procedure Act also requires the Court to have in mind the need to resolve proceedings in a cost-effective way, proportionate to the importance and complexity of the subject matter in dispute. The importance of this principle was recognised by the High Court even prior to the commencement of the Civil Procedure Act, in the case of Sali v SPC Ltd (1993) 116 ALR 625; [1993] HCA 47 at 843-44, where the majority of the court wrote: "In determining whether to grant an adjournment, the judge of a busy court is entitled to consider the effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the court as well as the interests of the parties. (…) What might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources."
Remarks concerning the "efficient dispatch of the business of the court" had been expressed, even earlier, by Gleeson CJ in State Pollution Control Commission v Australian Iron and Steel Pty Ltd (No. 2) (1992) 29 NSWLR 487 at 493F-495D.
As was also observed in Aon Risk Services Australia Pty v Australian National University (2009) 239 CLR 175; [2009] HCA 27 at 182 (French CJ), the time of the court is a publicly funded resource and "[I]nefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system." Also see, UBS AG v Tyne (as trustee of the Argot Trust) (2018) 265 CLR 77; [2018] HCA 45 at [38] where it was said by Kiefel CJ, Bell and Keane JJ: "The timely, cost effective and efficient conduct of modern civil litigation takes into account wider public interests than those of the parties to the dispute. These wider interests are reflected in s 37M(2) of the [Federal Court Act] [corresponding to s 56 of the Civil Procedure Act]. As the joint reasons in Aon Risk Services Australia Ltd v Australian National University explain, the "just resolution" of a dispute is to be understood in light of the purposes and objectives of provisions such as s 37M of the [Federal Court Act]. Integral to a "just resolution" is the minimisation of delay and expense. These considerations inform the rejection in Aon of the claimed "right" of a party to amend its pleading at a late stage in the litigation in order to raise an arguable claim. The point is made that a party has a right to bring proceedings but that choices are made respecting what claims are made and how they are framed. Their Honours speak of the just resolution of the dispute in terms of the parties having a sufficient opportunity to identify the issues that they seek to agitate."

Determination of the adjournment application

In this case, not only has the Defendant been given many opportunities to be heard, but he had also been informed by the Court of the complexity of the proceedings and that he would, in all probability, need legal assistance to assist him at any hearing. On some occasions, he has had counsel appearing on his behalf.
The additional costs that would be incurred if the hearing did not proceed, particularly in circumstances where the Defendant is said to be acting for himself and others, in relation to what are extremely small legacies (even considering all the pecuniary legacies referred to in Stanimir's Will) must be remembered. The costs are probably already disproportionate to the total amount of those legacies.
Weighing up all the considerations, including the procedural history referred to above, I was not prepared to adjourn the matter to a later date, principally, because I considered that the overriding purpose would not be achieved by an adjournment. I also considered the other matters referred to including the due administration of the deceased's estate, which has already been delayed for some time. I remember also that it is not only the deceased's Will that is said to be the subject of an alleged claim, but, perhaps more importantly, the Will of the deceased's husband, Stanimir, who died in 1987, that is over 35 years ago. The consistent failure by the Defendant to comply with the Court's directions has already imposed a significant burden on the Plaintiff and also upon the Court.

Dramatis Personae

It is next necessary to identify the persons who are referred to in the evidence read on the substantive application.
Stanimir Todorovic was the husband of the deceased. They were married on 17 February 1976 and remained married until his death, in Serbia, on 5 July 1987. However, prior to his death, they had lived in Sydney, New South Wales.
Desanka Ristovic is the sister of the deceased.
Mihaina Maksimovic and Gordana Paunovic are daughters of Stanimir and his first wife (who was not named in the evidence). They were not testamentary objects under either of their parents' wills. Neither were their children (grandchildren of Stanimir), Svetlana Maximovic and Svele Paunovic: Affidavit of Dragon Todorovic, 30 March 2022 at par 52.
Milivoj was the son of Stanimir and his first wife. He predeceased Stanimir, having died in the mid-1970s: Tcpt, 9 February 2023, p 40(10-20).
Kata Mijailovic is the daughter of Milivoj, and the granddaughter of Stanimir: Affidavit of Dragon Todorovic, 30 March 2022 at par 46; Tcpt, 9 February 2023, p 40(30-35). Under Stanimir's Will, she was to receive a pecuniary legacy of $2,000. She swore an affidavit in Serbia, dated 24 March 2022, that she was unaware of the contents of this Will following Stanimir's death, and that she did not receive any money. She resides in Čačak, Serbia.
By a document dated 19 February 2020, she had given a Power of Attorney over her interests regarding Stanimir's Will to the Defendant, who was described therein as her brother.
Rajo Todorovic is the son of Milivoj, and grandson of Stanimir: Tcpt, 9 February 2023, p 40(38). He was "declared as Stanimir's heir" by a Serbian municipal court in probate proceedings, in the decision O.6p 494/87 of 9 December 1987.
Olga Todorovic was Stanimir's sister-in-law: Tcpt, 9 February 2023, p 40(50)-41(1). Under Stanimir's Will, she was to receive a pecuniary legacy of $2,000. She died on a date not disclosed in the evidence.
Djuro Todorovic was Olga's son, and Stanimir's nephew: Tcpt, 9 February 2023, p 41(3-5). Under Stanimir's Will, he was to receive a pecuniary legacy of $2,000. He died on a date not disclosed in the evidence.
Zoran Todorovic is Djuro's son, and Stanimir's grandnephew: Tcpt, 9 February 2023, p 41(7-13). By a document dated 19 February 2020, he granted a Power of Attorney over his interests regarding Stanimir's Will to the Defendant. He swore an affidavit in Serbia, dated 23 February 2022, that he came to know of the contents of Stanimir's Will in 2017, and was unaware of any property distribution to his father, Djuro, in accordance with Stanimir's Will. He resides in Čačak, Serbia.
Hranislav Todorovic was Olga's stepson, Stanimir's nephew, and the Defendant's father: Tcpt, 9 February 2023, p 42(20). He died on 26 March 2014: Tcpt, 9 February 2023, p 42(26-30).
Sibinka Todorovic was Hranislav's wife, and the Defendant's mother. She accepted her share of Hranislav's estate in Serbian court proceedings 4.O. No 576/14 on 29 August 2017. By a document dated 19 February 2020, she granted a Power of Attorney over her interests regarding Stanimir's Will to the Defendant. She resides in Čačak, Serbia.
Mirjana Slovic is the daughter of Hranislav and Sibinka. She is Stanimir's grandniece, and the Defendant's sister. She accepted her share of Hranislav's estate in Serbian court proceedings 4.O. No 576/14 on 29 August 2017. By a document dated 19 February 2020, she granted a Power of Attorney over her interests regarding Stanimir's Will to the Defendant. She swore an affidavit in Serbia, dated 23 February 2022, that she came to know of the contents of Stanimir's Will in 2017, and was unaware of any property distribution to her father, Hranislav, in accordance with the said Will. She resides in Čačak, Serbia.
Dragan Todorovic, the Defendant, is the son of Hranislav and Sibinka. He is Stanimir's grandnephew, and the Defendant in these proceedings. He accepted his share of Hranislav's estate in Serbian court proceedings 4.O. No 576/14 on 29 August 2017. He was close to the deceased during the period of 2007-2013 and cared for her when she needed assistance. He resides in Australia.
Dobrila Simic was Stanimir's friend and, initially, a co-executrix named in Stanimir's Will, with the deceased, as appointed by his Will dated 6 June 1985.
However, Dobrila is said to have made a statement, dated 25 February 2022, annexed to Dragan's affidavit, filed 30 March 2022, that she never relinquished her role as co-executrix. She resides in Australia.
Dragica Videnovic was the deceased's friend and executrix, and the Plaintiff in these proceedings: Tcpt, 9 February 2023, p 43(32-35). She resides in Australia.
Dragan Furundzic was the tenant of the deceased at the Summer Hill property: Tcpt, 9 February 2023, p 43(37-40). The deceased is said to have granted him an enduring Power of Attorney on 21 November 2013: Tcpt, 9 February 2023, p 43(42-45). However, in proceedings before NCAT, a financial management order dated 24 January 2014 was made committing the management of her then estate to the NSWT&G: Tcpt, 9 February 2023, p 43(47-50).

Background Facts

It is next convenient to set out some of the background facts that have been established by the evidence.
By his Will, Stanimir: 1. Revoked all prior wills and testamentary dispositions (Clause 1); 2. Gave the whole of his estate to his trustees to permit the deceased, to have the use, occupation and enjoyment, for a period of 2 years from the date of his death, subject to certain terms and conditions, of a property at Summer Hill ("the Summer Hill property") following which it was to be sold, and from the proceeds of sale, a legacy of $5,000 was to be paid to his nephew, Hranislav Todorovic; a legacy of $2,000 was to be paid to his sister, Olga Todorovic; a legacy of $2,000 was to be paid to his nephew, Djuro Todorovic; and a legacy of $2,000 was to be paid to Kata Mijailovic (Clause 3); 3. Left the whole of the rest and residue of his estate to the deceased (Clause 4).
On 15 December 1988, this Court, granted probate of Stanimir's Will to the deceased solely, noting that Dobrila had renounced probate.
On about 28 February 1989, the title to the Summer Hill property was transmitted into the name of the deceased as the executrix to whom Probate was granted. The title of the Summer Hill property remained registered in her name until the deceased lost capacity to occupy it in about 2014.
As stated, on 9 December 1997, the Municipal Court in Čačak, Republic of Serbia made orders in respect of Stanimir's estate. The Court concluded that Stanimir's estate was determined by the probate decision O No. 494/87 of 9 September 1987 and declared Rajo to be Stanimir's heir. However, by the submission of a motion dated 2 March 1988 to discuss Stanimir's newly found estate, consisting of property in Sydney and in Preljina, Serbia, the Serbian court stated that it had no jurisdiction to distribute the Sydney property. The Court also stated that Stanimir was not registered as the owner of the Preljina property, so it, too, could not be distributed.
By order made on 24 January 2014, the Presiding Member of the Guardianship Division of NCAT made an order committing the estate of the deceased to management under the NSW Trustee and Guardian Act 2009 (NSW) and committed the management of her estate to the NSWT&G.
On 9 May 2014, the deceased appointed the Plaintiff, as executrix. The deceased died on 4 January 2019.
In September 2015, the NSWT&G sold the Summer Hill property in order to pay an Aged Care Refundable Accommodation Bond on behalf of the deceased.

The basis of the Defendant's case

As part of what was described as "Cross Claim/Statement of Cross Claim", a copy of which was annexed to an affidavit said to have been made on 24 March 2022, but which was sent to the Court (but which may not have been served) on 27 January 2023, the Defendant sought the following relief: "1 Order that the First Cross-Claimant, Dragan Todorovic, be appointed to represent the interests of the estate of the late Hranislav Todorovic. 2 Order that the Third Cross-Claimant, Zoran Todorovic, be appointed to represent the interests of the estate [of] Djuro Todorovic. 3 Order that the First Cross-Claimant, Dragan Todorovic, be appointed to represent the interests of the estate of the late Olga Todorovic. 4 Declaration that the Cross-Defendant is the executor of the estate of the late Stanimir Todorovic pursuant to section 44A Probate and Administration Act 1898 (NSW). 5 Order that the Cross-Defendant pay the Cross-Claimants the legacies in the will of the late Stanimir Todorovic dated 6 June 1985. 6 Interest on unpaid legacies from 5 July 1987 to the date of payment of the legacies. 7 Costs 8 Such further or other order as the court sees fit (Future lost income)."
It appears that the bases of what are said to be the claims for relief by the Defendant are that: 1. The deceased did not administer Stanimir's estate; 2. The deceased did not pay the legacies referred to in Stanimir's Will, to each of the beneficiaries. (There is evidence that the Defendant is an Attorney of Zoran Todorovic, Mirjana Slovic, Kata Mijailovic, and Sibinka Todorovic: Affidavit of Dragan Todorovic, 24 March 2022 at annexure "A"). 3. By reason of the failure to pay the legacies, the deceased held the whole of Stanimir's estate on trust for the beneficiaries and is liable to pay equitable compensation to them as a result of a breach of fiduciary duty.
The Defendant has produced different documents, each dated 19 February 2020, translated into the English language, which appear to include a Power of Attorney from Sibinka, Mirjana, Zoran, and Kata appointing him as her, and his, Attorney: "to represent my interests in regard to the Last Will and Testament of Stanimir Todorovic … in all procedures before all competent authorities in a peaceful solution as well as in all other procedures and in the data processing procedures regarding the said Last Will and Testament, and especially in the procedure before the Supreme Court of New South Wales."
(I note Zoran is not referred to in the heirs proclaimed of Hranislav.)

The facts relied upon by the Defendant

I have taken what follows from the Defendant's affidavits.
The Defendant has been living in Australia since March 1988. He had been in regular contact with the deceased since then until her death. He had never met the Plaintiff. He said that between 2007 and 2013, "the deceased was very close to me and I looked after her when she required help/assistance": Affidavit of Dragan Todorovic, 24 March 2022 at pars 4-8.
He asserted that the deceased had never spoken about Stanimir's Will: Affidavit of Dragan Todorovic, 24 March 2022 at par 7. However, bearing in mind other evidence, to which I shall refer, from him, I do not accept this assertion.
The Defendant has produced a document dated 9 December 1997, translated into the English language, of the Municipal Court in Čačak, Republic of Serbia, which is said to be "in the case of the discussion of the estate after the death of Stanimir Todorovic… after the completion of the probate procedure". I have gleaned the following information from this document: 1. There was a probate decision of 9 September 1987 that Stanimir's grandson, Rajo, was declared as Stanimir's heir; 2. There was a submission of a motion on 2 March 1988 in which a request was made to discuss "the newly found estate of [Stanimir] in Sydney, Australia and a newly built house in Preljina" (which I understand to be a village located in Čačak, Serbia). 3. The court was informed by the Australian Secretariat for Foreign Affairs, and by the deceased, of Stanimir's Will and its contents. The Court determined that the Yugoslav Court did not have jurisdiction to distribute Stanimir's immovable property, which was in Sydney.
The Defendant received a copy of Stanimir's Will "sometime towards the end of 2015" from the Plaintiff: Affidavit of Dragan Todorovic, 24 March 2022 at par 22.
The Defendant produced a document dated 29 August 2017, translated into the English language, of the Čačak Basic Court, Republic of Serbia, which appears to involve the estate of Hranislav Todorovic. I have gleaned the following information from this document: 1. The nature of the estate of Hranislav is set out. Whilst several different properties are identified, the only "monetary assets" referred to are "unpaid pension in the amount of 13,274.56 dinars". 2. There is no reference to any entitlement to an unpaid legacy of $5,000 out of the estate of Stanimir being part of Hranislav. 3. Hranislav did not leave a Will nor a "lifetime support contract". 4. "The heirs proclaimed, based on Law" of Hranislav, and "after viewing estate files" are established as being his wife, Sibinka, his son, the Defendant, and his daughter, Mirjana. The entitlement of each is identified. 5. As part of what is described as "Explanation", it is disclosed that Sibinka, the Defendant, and Mirjana, participated in a hearing and "in their inheritance statements accepted their shares of the inheritance that they are entitled to by law and at the same time agreed on the division as stated in the Decision…".
In his first affidavit, the Defendant asserted that the deceased's Will was not a valid Will: Affidavit of Dragan Todorovic, 24 March 2022 at pars 50-53. He asserted: "Will of Masinka Todorovic dated 9th May 2014 is not valid regarding to her mental capacity and the doctor report from Canterbury hospital dated 24th December 2013, Dr Tony Floyd registered with Guardianship tribunal [on the] 30th December 2013 and there is clear evidence [she] does not have capacity to make decision regarding her Will. This is the annexure marked "D", item 50. Under [the] Masinka Todorovic Will, she didn't nominate beneficiary of the Stanimir Todorovic Will. Under the Stanimir Todorovic Will, his grandchild[ren] Raja Todorovic, Svele Paunovic and Svetlana Maximovic, they are not included as beneficiaries under the family provision ACT. We [are] requesting the intention of contesting the Will on the grounds it "provides inadequate family provisions". Regarding to this was a court case in former Yugoslavia/Serbia by grandchild[ren] and also other assets of deceased Stanimir Todorovici's not nominated in probate 1988, I spoke about this with Desanka Ristovic and she told me she has [the] document on file and I requested through there [sic] lawyers to provide me these documents, to this date nothing has been received."
He did not seem to proceed with that assertion in the affidavit sent in January 2023.

The Submissions

In both her oral, and written, submissions, counsel for the Plaintiff said that the Defendant had failed to commence proceedings in support of any alleged claim within three calendar months of the date of service of the notice under s 93 of the Probate and Administration Act 1898 (NSW). The s 93 notice had been served on the Defendant by registered post on 7 April 2021. She emphasised that, now, 21 months had passed since the service of the s 93 notice, with the Defendant having failed to take any steps to formalise the alleged claim. It was submitted that the Defendant ought to be barred from making any claim against the Plaintiff under s 93(2).
In the alternative, counsel submitted that even though the Plaintiff was provided with a draft Statement of Cross Claim by the Defendant's then solicitors, Blunden & Montgomery, the draft pleading was defective.
Counsel referred to the comments made by White J in McGrath v Troy as administratrix of the estate of the Late Warren Terence Wade [2010] NSWSC 1470 at [99] and Slattery J in Robertson & Anor v Byrne & Ors [2022] NSWSC 1713 at [280] to explain the operation of s 93 and the principle that the claimant must commence proceedings in adherence to the relevant limitation periods.
Counsel also made reference to the observations made by Ferguson J in Ryan v Shackel (1925) 26 SR (NSW) 17 at [23], and to what I had written in English v Stewart [2022] NSWSC 268 at [57] and [62], to support her submissions that if proceedings are not commenced within three calendar months, the executors or administrators of the deceased's estate are entitled to obtain an order from the Court barring the proposed claim, so as to allow the completion of the administration of the estate.
Counsel submitted that on 16 May 2022, the Defendant had failed to press his claim by filing a Statement of Claim, despite being given the opportunity to do so by the Court. The Defendant's statement, when the matter had been set down for hearing, that he proposed to file the Statement of Claim, even at the hearing, had not come to fruition.
Additionally, counsel submitted that the Plaintiff's claim had not been brought ex parte. She pointed out that the Defendant had been active in the proceedings, either by appearing for himself, or through a selection of legal representatives. Counsel referred to the remarks of Campbell J in Ludwig v The Public Trustee [2006] NSWSC 890 at [273], to support the submission that an application under s 93 is usually made ex parte, with the applicant being under the requisite obligations of frank disclosure.
In both her oral, and written, submissions, counsel submitted that in light of his conduct throughout the proceedings, the Defendant ought to pay the Plaintiff's costs of the application on the ordinary basis. In her written submissions, she highlighted that any difference between the Plaintiff's costs of the proceedings, calculated on the indemnity basis, and the ordinary basis, which are, or may be, recoverable from the Defendant, ought to be paid out of the deceased's estate.
During the hearing, the Defendant maintained the assertion that the deceased had breached her obligation under the Will by failing to pay the legacies to the beneficiaries referred to in Stanimir's Will, and thereby had failed to properly administer Stanimir's estate.
He also submitted that the deceased's Will was invalid because of her lack of mental capacity. He sought to rely upon a report dated 24 December 2013 from Dr Tony Floyd of Canterbury Hospital which was part of the documents read in the Guardianship Tribunal of New South Wales on 30 December 2013. How this assertion, if established, could assist was not explained.
The Defendant submitted, in the alternative, that if the Court stopped proceedings pursuant to s 93, each party should pay her, or his, own costs of these proceedings: Affidavit of Dragan Todorovic, 24 March 2022 at par 56.

The Law

Relevantly, s 93 provides: (1) When the executor or administrator of the estate of a testator … 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."
I have dealt with the principles that apply in English v Stewart [2022] NSWSC 268 at [44] - [65]. At [64], I wrote: "There are a limited number of reported decisions on an application under s 93. It seems to me that the following procedure and principles should be remembered in an application to bar a claim: (a) Section 93 recognises that claims are often raised with executors or administrators of a deceased's estate. It is only if she, he or it, disputes the claim, that the section provides a mechanism for giving notice to the claimant to commence proceedings and, in the absence of such proceedings being commenced within 3 months, to obtain an order from the Court barring the proposed claim, so that the estate may be administered, despite the threatened claims. (b) If the claimant has provided information in support of her, his, or its, claim, the executor or administrator must consider that information to determine whether the claim should be disputed. Then, the service of a s 93 notice provides further impetus, if that is needed, to the claimant to pursue the claim by the issue of proceedings. (c) The application under s 93 is usually made ex parte, with the applicant being under the obligations of frank disclosure which attach to any ex parte application: Ludwig v The Public Trustee (2006) 68 NSWLR 69; [2006] NSWSC 890 at [273] (Campbell J). (d) An application under s 93 is commenced by way of summons, and should be accompanied by a supporting affidavit(s). (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. (g) The affidavit in support of the Summons should include details of the following: (i) That the plaintiff is the executor or administrator, the date of death of the deceased, and the date of the grant of probate or letters of administration, including a copy of the grant. (ii) The publication of the Notice of Intended Distribution of an Estate, including a copy of the notice. (iii) When the claim was first made, and when it was responded to, by the executor or administrator, who stated that the claim was disputed. A copy of the claim should be annexed. (iv) That the executor or administrator disputes the claimant's claim, and the reasons for that dispute with a copy of the relevant document. (v) Evidence of service of the executor's or administrator's notice disputing the claim on the claimant and the date on which the notice was served. (vi) That the claimant has been advised that an order has been sought from the Court that the claimant's claim be barred, with a copy of that advice annexed. (vii) Whether the claimant had legal assistance at the time of the claim. (viii) The stage of the administration of the deceased's estate may be relevant factors in considering whether to make an order, as will evidence of any steps taken by the claimant following the service of the s 93 notice. Any explanation advanced by the claimant going to why proceedings have not been commenced should be considered."
In Robertson & Anor v Byrne & Ors [2022] NSWSC 1713, at [280]-[281], Slattery J wrote: "The operation of Probate and Administration Act 1898, s 92 protects an executor for liability to any person with a claim against the estate for distributing the assets of the estate after having given notice in the approved form of distribution of the assets of the estate. Without that statutory protection the executor may be personally liable to satisfy the claim: Deputy Commissioner of Taxation v Brown (1958) 100 CLR 32 ("Brown") at 53-54. But if the executor had notice of the claim before distribution the executor may seek protection by employing a mechanism provided for in Probate and Administration Act 1898, s 93, by serving notice on the claimant disputing the claim and calling on the claimant to take proceedings to enforce the claim within three months. After the executor gives such notice to the claimant, the Court is empowered on the application executor to make orders barring the claim or make such other order as is just or equitable. The failure to give the relevant notice means that the executrix is personally liable to satisfy the claim."

Determination of the Proceedings

With these principles in mind, the question the Court must answer is whether the threatened claim by the Defendant should be barred. This involves the exercise of discretion. (The use of the word "may" in s 93(2) clearly indicates the conferral of a discretionary power.)
There is no dispute that the Plaintiff, as the executor, is a person entitled to invoke the statutory procedure created by s 93.
The documents submitted to the Plaintiff, by the Defendant's then solicitors, satisfy me that the Plaintiff was given notice of "a claim". It is to be remembered that the notice of claim submitted to the administrator need not be formal, and here, some particulars of the Defendant's claim were also provided.
There can also be no dispute that the Defendant has been given more than a reasonable opportunity to commence proceedings and more than 3 months has passed since he was served with the notice disputing the claim.
Having read the evidence, I am satisfied that: 1. More than 4 years have passed since the death of the deceased and over 35 years have passed since the death of Stanimir. 2. The Plaintiff has published a Notice of Intended Distribution of an Estate under s 92(1) on the NSW Online Registry website. 3. The Defendant has known that the Plaintiff disputed his claim since at least April 2021, when personal service of a s 93 notice was effected. 4. The Plaintiff waited a reasonable time before filing the Summons seeking an order under s 93(2) as required under the terms of that provision. 5. The Plaintiff has fulfilled the statutory time requirements to enable the making of an application for an order under s 93(2). 6. The Defendant has been called on to take steps to enforce the claim but has not done so. Whilst it has been asserted on his behalf, or by him, that the prosecution of the claim by commencement of proceedings is imminent, no proceedings have been commenced. 7. There is some lack of clarity in the way in which the claim is articulated. 8. The Court is not satisfied that the Defendant is prosecuting any claim. 9. No explanation has been given explaining why no steps have been taken to commence the threatened proceedings from the time he had knowledge that the Plaintiff, as the administrator of the deceased's estate, was disputing the claim. The history of the proceedings amply demonstrates that the Defendant's asserted claim has not been prosecuted with due diligence. 10. Even though, it is for the Plaintiff to satisfy the Court that a barring order should be made, where the Defendant has failed to prosecute the claim within 3 months, there is an evidentiary onus imposed on the Defendant to demonstrate why no order should be made. That is, the Defendant should address matters that will often be better known to him or her rather than the Plaintiff, such as the basis and strength of the proposed claim and the reasons for the delay in prosecuting them. In this case, the Defendant has not satisfied that evidentiary onus.
These proceedings by the Plaintiff were commenced on 20 January 2022. The Defendant was served, even accepting his assertion, more than 12 months ago. The matter has been before the Court since then, on 16 occasions. I am satisfied the Plaintiff has taken more than reasonable steps to ensure that the Defendant can bring any claim that he wishes to bring. I am also satisfied that the actions of the Defendant have caused delay in the completion of the administration of the deceased's estate.
Despite the number of appearances before the Court, the Defendant has not satisfied me that he is prosecuting any claim on his own behalf or otherwise. Indeed, this is clear from the fact that no proceeding has been brought by him at all despite the length of time that has passed since the deceased's death.
The threatened claim by the Defendant should be barred.
In all the circumstances, the orders sought by the Plaintiff should now be made. Otherwise, it would be oppressive, and prejudicial, not only to the Plaintiff, as the executor, but also to those entitled to the distribution of the estate.
In relation to costs, the Plaintiff has succeeded. The application has been an ordinary adversarial application, inter partes, and the Court has considered the underlying issue, namely whether the claim should be barred.
There is no reason why the Defendant should not be ordered to pay the costs of the proceedings. As Parker J has recently written in Sheridyn Ashwood v Terence John Ashwood [2023] NSWSC 208, at [108], "justice must take account of the effects on both parties. It is not to be equated with an unlimited right for [one party] to bring whatever claims [he] chooses and then to avoid responsibility for the costs inflicted as a result of claims that fail".
The Court: 1. Orders, pursuant to s 93(2) of the Probate and Administration Act 1898 (NSW), that the Defendant is barred from making any claim on his own, or on behalf of others, who are not resident in NSW, for whom he is said to be an Attorney, against the Plaintiff as the administrator of the estate of Masinka Todorovic, who died on 4 April 2019. 2. Orders that the Defendant pay the Plaintiff's costs of the proceedings. 3. Orders that to the extent that there is any difference between the costs ordered to be paid by the Defendant, the costs recovered from him, and the Plaintiff's costs calculated on the indemnity basis, those costs be paid out of the estate of the deceased.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 March 2023

Births, Deaths and Marriages Registration Act 1955(NSW)s 49(2), s 49(2).)

Trustee and Guardian Act 2009(NSW)

Civil Procedure Act 2005(NSW)ss 56, 57, 58, 59, 60, 66

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