Rance v Dempsey (No 2)

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.