DIMURA v PUBLIC TRUSTEE SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL HANDLEY JA 21 October 1996 [1996] NSWCA 155 Handley JA. In this matter Mr Stubbs of counsel appearing for the claimant, the would be appellant Mr Guglielmo Dimura, moves pursuant to a notice of motion filed 27 September for an extension of the time to appeal from a judgment of Mr Justice Bryson entered on 9 July 1996. The claimant is substantially out of time and this reflects naturally on the prospects of obtaining the order sought. However, the principal ground of opposition by Mr Hallen, who appeared for the opponent, was that an extension of time should be refused because the appeal lacked sufficient prospects of success. The proceedings before Mr Justice Bryson concerned claims by the claimant for specific performance of an alleged oral contract with the late Santo Chera who died at the age of seventy-six in February 1993, or damages for breach of that contract. The contract alleged involved a promise by Mr Chera to leave his estate by will to the claimant in return for the claimant performing various personal services for him and looking after him in his declining years. The trial Judge was not satisfied that such a contract had been made and was not impressed by the evidence called in support of the claim. In particular, he was not impressed with the credibility of the claimant. The claimant called other witnesses who gave evidence that the claimant had been friendly with the deceased and had provided practical assistance for him in the last years of his life. Some of these witnesses deposed to conversations in which the deceased expressed his friendship with the claimant and his intention to leave his property to the claimant. However, as the trial Judge pointed out the evidence of the independent witnesses did no more than establish that that was the deceased's intention at the time of the conversations. This evidence did not support the view that a binding contract had been entered into between the plaintiff and the deceased, or that the deceased recognised a binding obligation to dispose of his estate in favour of the claimant. The claimant is confronted with further difficulties caused by his attempt to propound informal wills written and signed by the deceased which he allegedly found in his home after the death of the deceased. The attempt to have these writings admitted to probate failed in the light of evidence called for the Public Trustee that the signatures on the so-called 'wills' were forgeries. As a result of that evidence Mr Justice Hodgson,when granting letters of administration to the Public Trustee, made an indemnity costs order against the claimant. The evidence of one of the handwriting experts was retendered in the proceedings before Mr Justice Bryson. The Public Trustee also relied upon various improbabilities relating to these alleged wills. On the claimant's version, 2 UNREPORTED JUDGMENTS they had been hidden by the deceased in the claimant's home, without telling him, in places where there was no certainty that they would ever come to his attention and might well become lost. In my opinion these are substantial matters which, in total, materially affect the claimant's prospects of success in the proposed appeal. Through his counsel, the claimant has foreshadowed an application to adduce fresh evidence in this Court directed to the handwriting issue and the question whether the disputed wills were forgeries. In my opinion the claimant has practically no prospects of obtaining an order from this Court for the admission of such evidence, bearing in mind the history of the proceedings before Mr Justice Hodgson, and then before Mr Justice Bryson and the stringent terms of s 75A(8) of the Supreme Court Act. Moreover, as his Honour reminded himself, a trial court has to be vigilant in scrutinising the evidence in support of a claim brought against a deceased estate when the court cannot know what the deceased would have said had the claim been brought in his lifetime. However the critical difficulty is the absence of writing. Section 54A of the Conveyancing Act applies in this case, bearing in mind the composition of the estate of the deceased. The section is a complete answer to the claim fordamages (J C Williamson Ltd v Lukey (1931) 45 CLR 282 at 297), but would not be a bar to proceedings for specific performance if there were sufficient acts of part performance to establish the contract. However the acts of kindness, consideration and assistance which the claimant provided for the deceased in his lifetime fall far short of establishing part performance by him of the contract relied upon. I refer, in particular, to J C Williamson Ltd v Lukey (1931) 45 CLR 282 at 297 where Dixon J said: Equitable relief is obtainable notwithstanding the Statute of Frauds by a party who, in pursuance of his contract, has done acts of performance consistent only with some such contract subsisting. The acts of kindness, consideration and assistance which the claimant provided for the benefit of the deceased did not, in my opinion, constitute conduct 'consistent only with some such contract subsisting', namely, a contract to leave substantial property to the claimant in the will of the deceased. That being so, the absence of writing is a complete answer to the claim of specific performance, as well as the claim for damages. Taking all these matters into consideration I have not been persuaded that the appeal has sufficient prospects of success to warrant granting an extension of time. This is a well established ground on which a court can properly refuse to cure procedural defaults, as was recognised by McHugh J in Gallo v Dawson (1990) 64 ALJR 458. I decline to make the orders sought. The order I make is notice of motion dismissed with costs. Orders accordingly.