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Rance v Dempsey (No 2)

Rance v Dempsey (No 2)

Case [2025] NSWSC 1220 17 October 2025

Civil Litigation & Procedure

Succession Law

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Supreme Court

New South Wales

Medium Neutral Citation: Rance v Dempsey (No 2) [2025] NSWSC 1220
Hearing dates: 29 September 2025
Date of orders: 17 October 2025
Decision date: 17 October 2025
Jurisdiction: Equity
Before: Hmelnitsky J
Decision:
(1) Dismiss the notice of motion filed 1 August 2025.
(2) Direct the parties to file and serve short submissions and any evidence in relation to the costs of the notice of motion by the close of business on 31 October 2025.
(3) Direct the parties to file and serve short submissions and any evidence in reply on the question of costs by the close of business on 7 November 2025.

Catchwords:
JUDGMENTS AND ORDERS — Amending, varying and setting aside — Where plaintiff obtained judgment in the absence of the defendant — Whether judgment should be set aside pursuant to r 36.16(2)(b) of the Uniform Civil Procedure Rules 2005 (NSW) — Whether defendant’s explanation for non-appearance at hearing and delay in bringing application to set aside is adequate
SUCCESSION — Family provision — Claim by alleged de facto partner of the deceased for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 — Where claim brought out of time — Whether sufficient cause shown to ‘otherwise order’ pursuant to s 58(2) of the Succession Act

Legislation Cited:
Evidence (Audio and Audio Visual Links) Act 1998 (NSW)
Interpretation Act 1987 (NSW) s 21C
Succession Act 2006 (NSW) ss 57, 58(2) and 59
Uniform Civil Procedure Rules 2005 (NSW) r 36.16(2)(b)

Cases Cited:
Ashton v Pratt (No 2) [2012] NSWSC 3
In the matter of Sunnya Pty Ltd [2023] NSWSC 1286
Magnate Projects Pty Ltd v Youma Constructions (No 2) Pty Ltd [2005] NSWCA 331
Northey v Bega Valley Shire Council [2012] NSWCA 28
Pham v Gall (2020) 102 NSWLR 269; [2020] NSWCA 116
Rance v Dempsey [2024] NSWSC 1423
Vacuum Oil Pty Co Ltd v Stockdale (1942) 42 SR (NSW) 239
Verzar v Verzar [2014] NSWCA 45; (2014) 12 ASTLR 523
Yesilhat v Calokerinos [2021] NSWCA 110; (2021) 21 ASTLR 227

Texts Cited:
Nil

Category: Consequential orders
Parties: Jesse Scott Rance (Plaintiff)
Glynis Annette Dempsey (Defendant)
Representation:
Counsel:
A Green (Plaintiff)
J C Rogers/C Taylor (Defendant)
Solicitors:
Southern Waters Legal (Plaintiff)
McGirr & Associates (Defendant)

File Number(s): 2023/424312
Publication restriction: Nil

JUDGMENT

These proceedings primarily concern the question of ownership of a property in East Gosford, NSW. The property was acquired by the defendant and the late Ian Astill as joint tenants in August 2018. The two were not married and they made markedly different contributions to the purchase price.
Mr Astill died on 1 December 2022 without leaving a will. The plaintiff is one of the deceased’s sons. At the time he commenced the proceedings, the plaintiff had not yet been granted letters of administration, however on behalf of the estate he sought orders that the property had been held by the defendant on a resulting trust for the deceased by reason of the parties’…

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 (No 2)

Details

AGLC: Rance v Dempsey (No 2) [2025] NSWSC 1220
Case: [2025] NSWSC 1220
Decision Date: 17 October 2025

CaseChat Overview and Summary

The case of Rance v Dempsey (No 2) involved a claim by the plaintiff, Rance, for provision from the estate of the deceased under the Succession Act 2006 (NSW). The plaintiff, who alleged to be the deceased's de facto partner, sought to be provided for from the deceased's estate. The defendant, Dempsey, did not appear at the hearing, resulting in the plaintiff obtaining judgment in their absence. Dempsey subsequently applied to set aside the judgment, arguing that there was sufficient cause to justify the delay and his non-appearance at the hearing.

The legal issues before the court were whether the judgment obtained in the absence of the defendant should be set aside under rule 36.16(2)(b) of the Uniform Civil Procedure Rules 2005 (NSW) and whether the defendant's explanation for his non-appearance and the delay in bringing the application to set aside the judgment was adequate. Additionally, the court had to determine if there was sufficient cause to 'otherwise order' under section 58(2) of the Succession Act 2006 (NSW) in light of the claim being brought out of time.

The court found that the defendant's explanation for his non-appearance and the delay in bringing the application to set aside the judgment was not satisfactory. The defendant did not provide a convincing explanation for his absence or the delay, which led the court to conclude that the judgment should not be set aside. Furthermore, the court considered the out-of-time nature of the claim and found that there was not sufficient cause to 'otherwise order' under the Succession Act. Consequently, the court dismissed the defendant's application to set aside the judgment and upheld the plaintiff's claim for provision from the deceased's estate.

Orders