The Court held that s 93(2) of the Probate and Administration Act 1898 (NSW) confers jurisdiction to make a barring order not only where a claimant has failed to commence proceedings after receiving a s 93(1) notice, but also where a claimant has commenced proceedings but failed to prosecute them to final hearing for reasons not attributable to any other party. The Court construed the words 'and to prosecute the person's claim' in s 93(1) as imposing an obligation beyond mere commencement of proceedings, giving those words independent work consistent with the statutory purpose of facilitating due estate administration. The dismissal for want of due despatch under r 12.7(1) UCPR and the barring order were both stayed for 28 days to allow the plaintiff a final opportunity to serve her affidavit evidence in chief and apply to set aside the orders, balancing the gravity of extinguishing a claim without a merits hearing against the prejudice to the executor and beneficiaries from indefinite delay.
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