The New South Wales Court of Appeal in Pizzolato v Marques [2024] NSWCA 100 reinforces that delay alone seldom defeats a beneficiary’s entitlement, especially if a trustee has not fulfilled their duties.
The Doctrine of Laches
Laches is an equitable defence preventing claims when a claimant’s unreasonable delay causes prejudice to the defendant. Generally in equity, laches may bar relief where delay makes it unfair to grant a remedy, especially if it has harmed the defendant’s interests. However, in probate and trust matters, the application of laches is more limited. Courts are especially cautious about denying relief to beneficiaries where trustees or executors have failed in their duties, and a higher threshold applies for establishing laches in these contexts.
A distinction that means while laches can more readily defeat claims in general equity matters, it is rarely successful against beneficiaries seeking entitlements from trusts or estates unless there is both gross delay and serious prejudice.
When a claimant delays starting proceedings, and that delay makes defence or evidence collection harder, courts may deny equitable relief. Courts assess the duration of the delay, the reasons for it, any changed circumstances, and the prejudice suffered by the defendant.
Exceptions to laches exist if, for example, the defendant’s misconduct—such as fraud, misrepresentation, or actions actively preventing the claimant from acting—caused the delay. In these situations, laches may not apply. The primary goal of the doctrine is to ensure fair outcomes by taking changing circumstances into account.
Orr v Ford (1989) 167 CLR 316
In Orr v Ford (1989), the High Court assessed whether a significant delay by a beneficiary in seeking equitable relief against an executor barred their claim, focusing on the circumstances of the delay and any resulting prejudice. The Court found this case to be authoritative on laches in trust and estate matters, noting that exceptions and factual context are crucial.
In 1968, Dr Stone acquired the property known as “Rum Jungle” using funds that partly came from Mr Orr, and he formally acknowledged that Orr held a 50% beneficial interest. Despite this, Orr took no steps to enforce or act on that interest for almost two decades, during which Dr Stone treated the land as his own and carried out substantial improvements. After Dr Stone’s death, Orr sought to enforce the trust against the estate, prompting questions about whether his long inaction barred the claim through laches, acquiescence, or resulting prejudice to the estate.
The High Court held, by majority, that Orr’s delay did not defeat his claim. It confirmed the existence of his 50% beneficial interest, but required him to account for part of the value of improvements made by Dr Stone. The decision emphasises that delay alone is insufficient for laches; there must be significant delay causing real prejudice, such as lost evidence or a detrimental change in position. It also clarifies that acquiescence requires knowing acceptance of another’s adverse conduct. As a result, Orr v Ford sets a high threshold for laches, requiring clear proof that enforcing the claim would be unjust due to the plaintiff’s delay.
Deane J observed that laches is an equitable defence that depends on the nature of the claim. While laches rarely bars beneficiaries’ claims against express trustees, ‘gross laches’ may apply where delay causes serious and unfair prejudice. However, what constitutes ‘gross laches’ varies case by case, and specific circumstances must be considered before denying relief.
‘Gross laches’ is an intentionally imprecise term referring to significant inaction causing serious and unfair prejudice to the defendant or others. The main test is whether the plaintiff’s delay makes it inequitable to grant relief, considering all circumstances. Laches will seldom bar a beneficiary’s claim for trust property unless there is a dispute about the trust or property, or substantial prejudice to third parties results from the delay.
Examples of substantial prejudice include situations where, due to the delay, crucial documents or records have been lost or destroyed, witnesses are no longer available, or their recollections have faded, or third parties have relied on the apparent status of the property and changed their position (such as by purchasing, investing in, or otherwise dealing with the property). Unreasonable delay that impairs the ability to defend the claim may suffice, but all relevant circumstances are considered.
Laches will rarely prevent beneficiaries from claiming trust property from trustees. Only very serious, aggravated delay—termed ‘gross laches’—causing real and unfair prejudice will suffice. Courts examine the length of delay and any resulting unfairness to others. Mere delay is not enough; actual harm is required.
Pizzolato v Marques [2024] NSWCA 100
Mr Mario Pizzolato and Mrs Antonella Pizzolato (together, the Applicants) sought leave to appeal from the primary judge’s orders under s 175 of the Corporations Act 2001 (Cth) correcting the registers of C&V Engineering Co Pty Ltd and Pizzolato Nominees Pty Ltd (the Second and Third Respondents) to record Ms Vittoria Marques (the First Respondent), the Applicants’ sister, as a tenant in common in equal shares alongside the Applicants in respect of certain shares previously held by their late mother.
Mario Pizzolato (the First Applicant) as executor of his mother’s estate, failed to distribute to the First Respondent the shares she was entitled to under their mother’s Will following a grant of probate in 2016. The first applicant undertook to distribute the shares in 2018 but failed to do so, and continued to fail to do so despite requests by the First Respondent through her solicitors in 2020, 2022 and 2023. In 2024, the First Respondent commenced proceedings to correct the registers of the Second and Third Respondents.
Chronology
For ease of reference, the key events in the timeline are as follows:
- 2016: Grant of probate of the will (shares became due to the First Respondent)
- 2018: Executor undertook to distribute shares but did not follow through
- 2020, 2022, 2023: First Respondent, through her solicitors, made repeated requests for distribution
- 2024: First Respondent commenced court proceedings seeking correction of the share registers
On 21 November 2024, the Applicants filed a Points of Defence (POD) which, relevantly, raised defences of estoppel (at paragraphs 25 to 29) and laches (at paragraph 30). The estoppel defence was abandoned at a Directions Hearing on 31 March 2025 by an affidavit of the Applicants’ solicitor, Mr De Villiers, who deposed that paras 26 and 27 of the POD were unsupportable and that the Applicants’ case “is now substantially narrower”.
The Applicants’ complaint in the Court of Appeal arose from Black J’s rejection of parts of two affidavits, each sworn on 28 March 2025 (one of the first applicant, the other of the second applicant), which formed part of the Applicants’ evidence. Black J rejected this evidence based on relevance and under s 135 of the Evidence Act 1995 (NSW), given that it raised unpleaded factual allegations and that the First Respondent would be prejudiced if required to meet a defence based on factual propositions of which she had no notice.
Section 135 of the Evidence Act 1995 (NSW) allows courts (in both civil and criminal cases) to exclude admissible evidence if its probative value is outweighed by unfair prejudice, confusion, or waste of time.
The Applicants contended that Black J erred by not admitting the evidence, as the factual allegations in it arose directly from the defence of laches pleaded in paragraph 30 of the POD. For the identification of facts particularising the prejudice, the Applicants relied on paragraph 26 of the POD, which, although effectively abandoned for the estoppel defence, was said to be of continuing vitality for the laches defence on the basis that it had been incorporated by reference in paragraph 30(c) of the POD.
The essence of the Applicants’ laches defence, as characterised on appeal, was that the First Respondent delayed in bringing the proceedings and, in that period, the Applicants had caused the companies to enter into financing arrangements for the purpose of development of land and in respect of which they had provided guarantees, whereas the First Respondent had not done so.
In the matter of C&V Engineering Co Pty Ltd and Pizzolato Nominees Pty Ltd [2025] NSWSC 857, the first and second applicants were in dispute with their sister, the first respondent, over shares left to them by their late mother. The shares should have been distributed after probate was granted in 2016, but this did not happen. The applicants gave an undertaking in 2018, and the first respondent made repeated requests, including through her solicitors in 2020, 2022, and 2023. The shares were still not transferred. In 2024, the first respondent commenced proceedings to have the company’s share registers updated to reflect her entitlement Black J granted the relief sought.
The applicants appealed the decision.
The central issue: whether delay could defeat the beneficiary’s claim. On appeal, the applicants relied on the equitable defence of laches, contending that the claim should fail due to delay and resulting prejudice submitting the following:
The first respondent delayed in commencing proceedings. During the delay, the applicants entered into financing arrangements and provided personal guarantees to support the company’s development. They submitted that it would now be inequitable to alter the ownership structure. At first glance, this argument seems reasonable. The Court of Appeal found several problems with the applicants’ case:
1. Abandoned arguments cannot be revived
Earlier in the case, the applicants argued estoppel, but later dropped this argument, admitting that parts of their case could not be supported. They later sought to rely on the same factual material in support of the laches defence. The Court of Appeal held that once a ground is abandoned, it cannot be brought back in another form, especially if the other party has prepared their case on that basis.
2. Prejudice must be clearly pleaded and established. A key requirement for laches is that the delay must cause real prejudice. The applicants did not satisfy this requirement:
They did not clearly explain what prejudice they claimed, and they did not show any link between the delay and the alleged disadvantage.
The Court of Appeal made clear that simply entering into financial arrangements or giving guarantees was not enough. It must be shown that these steps were taken because of the delay or the belief that the claim would not proceed.
Relevant evidence could include, for example, contemporaneous correspondence indicating that decisions were made in response to the perceived delay, board minutes or internal memoranda recording concerns about unresolved claims, or emails discussing whether to proceed with financial arrangements based on the assumption that the entitlement would not be enforced.
The clearer and more direct the link between the delay and the actions relied on as prejudice, the more persuasive the argument on causation will be. In Pizzolato v Marques [2026] NSWCA 44 the evidence showed that the first respondent had consistently asserted her rights during the relevant period.
3. Trustees are subject to a higher threshold, especially executors and estate administrators. The first applicant was the executor of the estate and, as such, the trustee of the assets owed to the first respondent. The Court of Appeal, drawing on the High Court’s authority in Orr v Ford, reiterated that: Laches is rarely established against a beneficiary seeking to enforce a trust. It generally requires gross delay and serious, unfair prejudice. Even in such circumstances, courts are reluctant to deny relief. In this case, there was a delay, but not of a kind sufficient to bar relief.
- No prejudice was demonstrated, and
- The executor failed to perform his duties.
- The Court described this as a serious breach of duty.
4. Beneficiaries are not penalised for enforcing entitlements. The Court made a practical observation:
The first repondent ought not to have been required to commence proceedings. She was simply trying to enforce her entitlement under the will. Courts are reluctant to penalise beneficiaries for delay where:
- They have consistently asserted their rights, and
- The delay is at least partly due to the trustee’s inaction.
Practical implications for estate practitioners
If an executor or trustee delays in administering an estate or distributing entitlements, beneficiaries should consider the following steps:
• Keep records: Document all correspondence and attempts to communicate with the executor or trustee.
• Send formal requests: Make written requests for information and distribution of entitlements, setting clear timeframes for a response.
• Seek legal advice:
- If delays persist or concerns arise, consult a solicitor with experience in estates for guidance on rights and next steps.
- If the dispute is complex, involves significant assets, or early negotiations are unsuccessful, it may be appropriate to seek advice from specialist estate counsel.
- Referral to specialist counsel or litigation support can help clarify legal strategy and manage risk in more contentious or high-value cases.
• Consider formal action: Where informal efforts fail, legal avenues such as mediation, complaints to the relevant authority, or commencing court proceedings may be appropriate.
• Assert entitlements early: Where possible, beneficiaries should clearly and consistently assert their rights to mitigate arguments of delay.
These steps help protect a beneficiary’s interests and ensure any concerns about delay are addressed promptly.
Pizzolato v Marques [2026] NSWCA 44 illustrates several practical points:
• Executors must act promptly
Delays in administering estates, especially where assets are clearly owed, can expose executors to serious legal consequences.
• Delay alone is insufficient
Equitable Defence of Laches
To establish the equitable defence of laches, a defendant must show more than mere delay. It must be demonstrated that the plaintiff delayed unreasonably in commencing proceedings and that this delay caused prejudice or material detriment to the defendant. The critical question is whether, in light of the delay and its consequences, it would be inequitable to grant relief. Accordingly, both elements—unreasonable delay and resulting prejudice—must be proved.
The defence typically requires evidence that the plaintiff knew, or ought to have known, of their claim but failed to act, coupled with an inexcusable delay before bringing proceedings. In addition, the defendant must establish material prejudice arising from the delay. In the form of evidentiary prejudice, such as lost documents, deceased witnesses, or faded recollections, or economic prejudice, where the defendant has altered their position—by investing resources or making significant decisions—in reliance on the plaintiff’s inaction. Ultimately, the inquiry is whether it would be unjust, in all the circumstances, to permit the claim to proceed
• Parties should not alter their case mid-proceeding
- Abandoning a defence and subsequently seeking to reintroduce it in another form is unlikely to succeed, particularly where it causes prejudice to the opposing party.
• Beneficiaries are afforded significant protection
- Courts will usually enforce the terms of a will unless there is a strong reason not to.
Conclusion
The Court of Appeal refused leave to appeal. Finding no clear injustice, the argument was only speculative.
The practical implication for families is clear:
Where a Will gives someone an entitlement, delay and internal arrangements will not usually defeat that entitlement, especially if the executor has not acted.
However, in rare cases, the defence of laches may succeed if there has been an extreme or prolonged delay that results in serious and irreparable prejudice to third parties, or where the delay has caused substantial injustice that cannot be addressed otherwise.
- Practitioners should remain alert to these unusual situations when advising on potential risks.
- Executors should act promptly and transparently.
- Beneficiaries should not assume that a delay means they have lost their rights.