On an application for extension of time under s 99 of the Administration and Probate Act 1958 (Vic), the court is not confined to a threshold inquiry into whether the proposed claim is hopeless; where extensive evidence is before the court, it may form a more informed assessment of the merits as one factor in the discretionary balancing exercise. An arguable case does not, without more, require the extension to be granted. Delay of over 40 years gives rise to untold prejudice from loss of evidence of unknown nature and extent, even where the explanation for delay is plausible. An explanation for delay that involves acceptance of a compromise arrangement may simultaneously explain the delay and undermine the merits of the underlying claim.
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