Rance v Dempsey - [2024] NSWSC 1423

Supreme Court

New South Wales

Medium Neutral Citation: Rance v Dempsey [2024] NSWSC 1423
Hearing dates: 6 November 2024
Date of orders: 8 November 2024
Decision date: 08 November 2024
Jurisdiction: Equity
Before: Hmelnitsky J
Decision:
See [38]

Catchwords:
EQUITY – Trusts and trustees – Resulting trusts – Presumption of resulting trust – Unequal contributions to purchase price
PRACTICE AND PROCEDURE – Application for appointment of representative of deceased’s estate pursuant to r 7.10 of the Uniform Civil Procedure Rules 2005 (NSW)

Legislation Cited:
Succession Act 2006 (NSW), s 127
Uniform Civil Procedure Rules 2005 (NSW), r 7.10

Cases Cited:
Calverley v Green (1984) 155 CLR 242; [1984] HCA 81
IMF (Australia) Pty Ltd v Sons of Gwalia Ltd [2004] FCA 1390; (2004) 211 ALR 231
In the matter of Pharmacy Depot Hurstville Pty Ltd (in prov liq) [2018] NSWSC 961
Oil Basins Ltd v Commonwealth of Australia (1993) 178 CLR 643; [1993] HCA 60
Zetting v Müller [2017] NSWSC 659

Texts Cited:
J D Heydon and M Leeming, Jacobs’ Law of Trusts in Australia (8th ed, 2016, LexisNexis)

Category: Principal judgment
Parties: Jesse Scott Rance (Plaintiff)
Glynis Annette Dempsey (Defendant)
Representation:
Counsel:
A Green (Plaintiff)
Solicitors:
Southern Waters Legal (Plaintiff)

File Number(s): 2023/424312

JUDGMENT

These proceedings concern the estate of the late Ian Scott Astill. They were brought by the deceased’s son Jesse Scott Rance by way of statement of claim dated 23 November 2023. For convenience I will refer to the parties by their first names.
The defendant, Glynis Annette Dempsey, is Ian’s former de facto partner. Ian and Glynis owned a property on White Street in East Gosford (the Gosford House) as joint tenants.
In the statement of claim, as filed, Jesse sought a declaration that Glynis holds the Gosford House on constructive trust for the estate. In the alternative, he sought an order for further provision out of the estate pursuant to s 60 of the Succession Act 2006 (NSW) and a complementary order under s 80 designating property as notional estate, being Ian’s interest in the Gosford House as joint tenant which passed to Glynis on his death. Jesse also sought an order under r 7.10 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) that Glynis be appointed as a representative of the estate for the purpose of these proceedings.

The non-appearance of the defendant

Glynis was served with the originating process pursuant to orders for substituted service in circumstances described below. However, she did not appear at the hearing and nor did she engage with the proceedings in any way prior to the hearing. Jesse’s former and current solicitors, Northern Beaches Lawyers (NBL) and Southern Waters Legal, respectively, have expended significant effort in attempting to notify Glynis of the proceedings and serve her with the originating process and other relevant documents.
Prior to the commencement of the proceedings, NBL sent a letter dated 12 September 2023 outlining their claim, to Glynis. They received a reply dated 12 October 2023 from…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Rance v Dempsey

Details

AGLC: Rance v Dempsey [2024] NSWSC 1423
Case: [2024] NSWSC 1423
Decision Date: 08 November 2024

CaseChat Overview and Summary

The case of Rance v Dempsey involved a dispute over the ownership of a property held in joint names. The parties to the case were the applicant, Rance, who claimed an interest in the property, and Dempsey, the deceased, who was the other joint owner of the property. The case was heard in the Supreme Court of New South Wales. The central issue in the case was whether a resulting trust existed over the property in favour of Rance, due to unequal contributions to the purchase price.

The legal issue before the court was whether the onus was on Rance to prove that a resulting trust existed, or whether Dempsey had the burden of proving that no such trust existed. The court considered whether the presumption of a resulting trust could be rebutted by evidence of a common intention to hold the property as tenants in common. The court also considered whether Dempsey had successfully rebutted the presumption of a resulting trust.

The court found that the presumption of a resulting trust could not be rebutted by evidence of a common intention to hold the property as tenants in common, as there was no evidence of any such intention. The court held that the onus was on Rance to prove that a resulting trust existed, and that Dempsey had successfully rebutted the presumption of a resulting trust by providing evidence of his contributions to the purchase price. The court found that there was no resulting trust over the property in favour of Rance. As a result, Rance’s application for the appointment of a representative of Dempsey’s estate was dismissed.

Orders