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[2025] NSWSC 1220
Supreme Court of NSW
2025-10-17
Hmelnitsky J
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
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
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’ unequal contributions to the purchase price. In the statement of claim, he had also sought relief in the form of a constructive trust, which he submitted arose out of the failure of a joint endeavour and the deceased’s outsized contributions to the cost of acquiring and holding the property. In the alternative, he sought an order for further provision under s 59 of the Succession Act 2006 (NSW).
I delivered reasons for judgment on 8 November 2024: Rance v Dempsey [2024] NSWSC 1423 (the November 2024 reasons). I made declarations and orders (the November 2024 orders) as follows:
Order that the plaintiff be appointed as the representative of the estate of the late Ian Scott Astill with effect from 23 November 2023, for the purposes of this proceeding.
Declare that the defendant holds the Gosford House on a resulting trust as to 82.43% for the estate of the late Ian Scott Astill.
The defendant is to pay the plaintiff’s costs of the proceedings.
Any shortfall between the costs of the plaintiff and the costs recovered from the defendant pursuant to order (3) be paid from the estate of the late Ian Scott Astill on the indemnity basis.
List the matter for directions at 9:30am on 11 April 2025.
As explained in my November 2024 reasons, the defendant had been served pursuant to orders for substituted service and had failed to appear at the final hearing. I described the procedural background to the proceedings and the numerous attempts to serve the defendant and otherwise to bring the proceedings to the defendant’s attention at paragraphs [4] to [11].
On 18 February 2025, the defendant filed a notice of appearance. By notice of motion filed on 1 August 2025, she seeks the following orders:
“Interim
1. Upon the plaintiff giving the usual undertaking as to damages, an order restraining the plaintiff, or any trustees for sale appointed by this Court, from taking any step to sell the property bearing NSW Title Folio Identifier number 33/38604 and known as [XX] White Street, East Gosford NSW 2250 (Property) until further order of this Court, including without limitation from entering the Property or engaging a real estate agent to sell the Property.
2. An order that the plaintiff be directed to inform any trustees for sale, or prospective trustees for sale, of the terms of Order 1 within one business day of the date of that order.
Interlocutory
3. An order pursuant to s 36.16(2)(b) of the Uniform Civil Procedure Rules 2005 (NSW), alternatively pursuant to the inherent jurisdiction of the Court, setting aside Order 2 entered 8 November 2024, being the declaration as to the resulting trust over the Property in favour of the Estate of the Late Ian Scott Astill.
4. Alternatively, to Order 3 above, an order pursuant to s 58(2) of the Succession Act 2006 (NSW) extending time for the defendant to file an application for a family provision order from the Estate of the Late Ian Scott Astill under the Succession Act.
5. An order setting aside Order 3 entered 8 November 2024, being the order for the defendant to pay the plaintiff’s costs of the proceedings.
6. Such further order or other order as this Court sees fit.
7. Costs.”
Despite this being an interlocutory application, the plaintiff sought leave to cross-examine the defendant. I granted this application because it was apparent that the plaintiff intended to challenge some of the defendant’s key assertions about when she took certain steps in connection with the proceedings and about her state of knowledge of these proceedings at key points in time.
However, at the time of the hearing of the motion the defendant was resident in the United Arab Emirates (UAE) and no arrangements had been made to take her evidence by video-link pursuant to the provisions of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW). Nor had notice of such an application been foreshadowed. The prospect having been raised at such short notice to the Court (during the hearing of the motion), and where there was no evidence as to whether there was any prohibition under local law concerning the taking of evidence of a witness by video or concerning the administering of an oath in such circumstances, I was not prepared to take the defendant’s evidence by video-link. Part of my caution in this regard reflected what was said by Williams J in In the matter of Sunnya Pty Ltd [2023] NSWSC 1286 at [129]-[140].
This decision created some procedural untidiness, because the difficulty about taking evidence by video-link only emerged after her affidavit had been read and I had already decided to allow cross-examination. This placed the defendant in a difficult position. However, I was informed by her counsel that she did not seek an adjournment to allow her to travel to Australia to be cross-examined.
In the end, the matter proceeded on the basis that her affidavit would be in evidence but the fact that she was not able to be cross-examined would go to the weight to be placed on her evidence. I have therefore approached the factual issues as I would have done if the matter had proceeded in the usual way of interlocutory applications, namely by reference to affidavits on which there is no cross-examination.
The defendant’s evidence dealt broadly with two matters: the procedural history including her explanation as to why she did not engage with the proceedings earlier; and the merit of her substantive claim that the East Gosford property is not held on any resulting trust, contrary to what I found in my earlier reasons.
It is relevant to note that in May 2023, the defendant was charged with two offences, one of which related to some interactions with police during the execution of a search warrant and the other of which related to the possession of a commercial quantity of a prohibited drug. What is relevant is that she shortly thereafter engaged Mr Simon Long of McGirr & Associates to represent her in relation to these criminal matters.
The defendant attended Gosford Local Court on 2 June 2023 in connection with the first of these charges. She was represented on that day by Mr Long.
The second charge was listed for hearing on 11 November 2024. However, following the 2 June appearance, the defendant decided to move to the UAE to live with one of her sons in Dubai. She moved to Dubai in late June 2023 and has remained there ever since.
It follows that at the time the plaintiff caused his solicitor to send the 12 September 2023 letter outlining his contentions concerning ownership of the East Gosford property (as to which, see paragraph [5] of my earlier reasons), the defendant was living in Dubai.
The 12 September 2023 letter spelled out the plaintiff’s contentions concerning the East Gosford property. It stated that the plaintiff intended to commence proceedings seeking relief by way of a resulting or constructive trust and, in the alternative, by way of a family provision order together with orders designating the East Gosford property as notional estate. The letter sought undertakings that the defendant would not deal with the East Gosford property in the meantime and stated that, absent such undertakings, he would cause a caveat to be lodged pending determination of his claim.
The defendant recalls receiving the 12 September 2023 letter in Dubai. She read it over and over but just could not believe that the plaintiff would make allegations of that kind concerning ownership of the East Gosford property. So seriously did she take the letter that she contacted two solicitors about responding to it. The first was Mr Peter Long (not to be confused with Mr Simon Long of McGirr & Associates) of Rural Law in Gunnedah. He eventually recommended that she find a lawyer in Sydney. On 10 October 2023, the defendant contacted McGirr & Associates, who had been representing her in relation to the criminal matters. It was McGirr & Associates who responded to the plaintiff’s letter on 12 October. By that letter, the defendant acknowledged the 12 September 2023 correspondence from the plaintiff and refuted the claims contained in it. McGirr & Associates requested more time to respond to the plaintiff’s request for undertakings, however, no undertaking was given.
As foreshadowed, the plaintiff then commenced these proceedings by a statement of claim filed on 23 November 2023. A copy of the pleading was sent to McGirr & Associates. Following their usual policy, McGirr & Associates declined to accept service in circumstances where they were not specifically instructed to do so. They also did not forward the statement of claim to the defendant, as was their policy in such circumstances.
They did however attempt to contact the defendant about the matter. The evidence about the firm’s attempts to contact the defendant was given by an employed solicitor, Mr Candelori, who gave evidence that he was informed by Mr Drew (another employed solicitor of McGirr & Associates) about the following matters:
“a. the statement of claim that was sent to [McGirr & Associates] by the Plaintiff’s then solicitor was not sent on to the defendant. It is Mr Drew’s, and the firm’s policy, not to pass on originating processes, such as statements of claim, to a client until we have instructions to accept service;
b. Mr Drew requested Mr Simon Long, then of the firm, to organise a meeting with Ms Dempsey in relation to the matter;
c. After an extended period without response, Mr Drew informed the plaintiff’s then solicitors by email that [McGirr & Associates] did not have instructions to accept service for the defendant.”
Mr Candelori added that these facts were consistent with documents he had reviewed over which privilege was not waived.
Mr Candelori also said that Mr Simon Long informed him of the following matters in respect of Ms Dempsey’s criminal matter:
“a. He had contact with Ms Dempsey in late May and June 2023 (that is some months prior to her contacting him in relation to this matter);
b. He finalised one of her charges at Gosford Local Court on 2 June 2023;
c. The remaining charge was withdrawn by police in early November 2024;
d. He attempted to make contact with Ms Dempsey around the time that the prosecution withdrew the charge;
e. As stated above, he did not hear from Ms Dempsey until on or around 8 April 2025.”
“175. I became completely overwhelmed from a lack of sleep and depression. I suffered a breakdown and was admitted to a mental health facility. I remained under the care of Dr Shafiq-Khan who prescribed me anti-depressants and sleep-aids…
176. I found that the medication did ease my anxiety and grief, but it also made me very tired. I was also taking sleeping tablets and constantly felt drowsy. From time to time during this period, I would remember Jesse’s letter about making a claim on the Gosford property and I would just become exhausted, upset and overwhelmed again thinking about it. I found it easier just not to think about Jesse or what had happened. I do recall seeing some missed calls and texts from McGirr & Associates in those first few weeks, but I just ignored them and didn’t call back.
177. I was far too unwell to speak to anyone, not even my son, nor do anything about it.
178. From memory I was communicating with either Mr Justin Drew or Mr Simon Long via the Whatsapp or Signal applications as it was very expensive to call the McGirr & Associates office from my UAE phone. The time difference didn’t assist either particularly given how much I was sleeping.”
The other evidence as to the defendant’s mental health at around this time was given in the form of a letter dated 4 July 2025 from Dr Muhammad Shafiq-Khan of the Al Buraq Medical Centre in Sharjah, UAE. I will say more about this letter below.
Mr Drew advised the plaintiff’s solicitor on 24 January 2024 that McGirr & Associates was no longer instructed by the defendant. Mr Candelori later stated by way of explanation that Mr Long ‘did not communicate with the defendant in the period January to March 2024’. He said nothing about what Mr Long’s attempts to communicate with the defendant prior to January 2024 involved.
Pausing here, the evidence does not allow me to reach any particular conclusion as to what the defendant was told about these proceedings by McGirr & Associates at around the time they were commenced. Pointedly absent from the defendant’s explanation of what occurred at this time was any description of what, exactly, McGirr & Associates informed her in the course of communicating with her or attempting to communicate with her. The defendant says she ‘ignored’ messages from McGirr & Associates but gives no evidence as to what those messages were. This is noteworthy for the fact that the proceedings about which they were attempting to contact her were the very proceedings foreshadowed in the correspondence only weeks earlier.
There followed numerous attempts by the plaintiff to effect service, including pursuant to orders for substituted service, which are recounted in the November 2024 reasons. One such attempt involved delivery of the statement of claim to the defendant’s son, who by this stage was recently released on bail and was living in St Ives. He gave evidence that he did receive documents but decided not to forward them to his mother in Dubai because he ‘knew what [the plaintiff] had done to mum’ and he did not want to upset her. This was apparently a reference to the fact that the defendant had been excluded from the deceased’s funeral arrangements, which she found hurtful. So, he threw the documents into the bin.
Some of the plaintiff’s attempts to contact the defendant included sending messages to an Australian telephone number he believed to be her personal contact. In fact, the defendant confirmed in her affidavit that the number that the plaintiff was contacting was indeed her Australian telephone number. However, she says that she removed the SIM card associated with this number when she moved to Dubai and said that she has not used this number since moving there. I note that the evidence does not otherwise deal with the question of how the defendant was communicating with McGirr & Associates after moving to Dubai.
Be that as it may, the plaintiff’s evidence includes a copy of a message sent to an iMessage account associated with the defendant’s phone number in August 2024. The message stated:
“Good morning, a Statement of Claim in court proceedings brought against you by Jesse Scott Rance has been served by post, delivery and by affixing to the addresses 199 Warrimoo Avenue, St Ives Chase NSW and 95/1 Fontenoy Road, Macquarie Park NSW.”
The message shows that it was ‘sent’ at 9:02AM and that it was ‘read’ at 9:06AM the same day.
The proceedings were listed for final hearing before me on 6 November 2024. The order setting the matter down for hearing was made on 22 October 2024. Notice of the order was given in accordance with the orders for substituted service. Notice of the order was also given by iMessage to the same number used in August. The evidence shows that this message was ‘delivered’.
The evidence as to what happened next is a little confusing. The defendant says that ‘towards the end’ of November 2024 (that is, after the final hearing and after judgment had been delivered) she ‘remembered the listing’ for the drug charge and accessed the NSW Courts website, where she found the online registry.
The defendant said the following:
“180. I typed my name into the search bar and two results came up. One showed my Hearing at the Gosford Local Court on 11 November 2024 but the other showed a listing in the Supreme Court on 6 November 2024 with both my name and Jesse’s.
181. Seeing my name listed in the Supreme Court with a notation to read something like Jesse Rance versus Glynis Dempsey put me into another mental health freefall. I suffered another breakdown and was in care and on heavy anti-depressants for much of the next month.”
The plaintiff submitted that if a search of the online registry showed a listing for 6 November 2024, then it was highly likely that the search was conducted prior to that date and not in late November, as the defendant claimed. The plaintiff pointed out that when the defendant looked at the online registry, she did not see a listing for 11 April 2025, which by late November 2024 would have been the next listing of the proceedings.
There is force in this submission. The plaintiff submitted that I should infer from the evidence that the defendant’s search of the listings actually took place before the final hearing, not after it, and I agree.
I further infer that the defendant was actually aware of the proceedings from at least August 2024 when she was notified of the statement of claim by iMessage, which the evidence shows to have been ‘read’ on the same day.
After the defendant found out about the final hearing, she did not contact a lawyer. This is despite the fact that even on her own evidence, she discovered the existence of these proceedings at around the same time that the drug charge, in respect of which McGirr & Associates was representing her, was due to be heard. It was also at exactly this time that Mr Long was attempting to contact her about the withdrawal of that charge.
Nevertheless, the defendant did take steps to engage with these proceedings in her own limited way. She only did so, however, when she ‘felt able to do so’, which was about a month later. She eventually managed to file a notice of appearance without the assistance of a lawyer. This occurred on 18 February 2025 but the document itself was dated 30 December 2024. The defendant described difficulties in filing this document, but she did not actually contact anyone for assistance about it until 12 February 2025 when she sent an email addressed to ‘eregistry@justice.nsw.gov.au’ in which she said that it had recently come to her attention that there was an ongoing Supreme Court matter in which she was the defendant.
The defendant received a response the following day which recommended that she approach the Supreme Court directly and which separately referred her inquiry to the Supreme Court registry. The Chief Clerk of the Supreme Court registry then promptly arranged for her notice of appearance to be filed. The delay between Thursday, 13 February (when the Supreme Court registry was contacted about the matter) and Tuesday, 18 February (when the document was filed) may be explained by the fact that there were technical issues confronting the IT system during that period. Shortly after the notice of appearance was filed, the defendant was notified that the matter was next listed on 11 April 2025.
The defendant did not access the online registry to download documents in these proceedings until 8 April 2025, some eight weeks after first contacting the registry and (on her best case) more than four and a half months after learning about the final hearing in November 2024. The defendant says that the delay between filing her notice of appearance in February and downloading the court documents in April was owing to the fact that there had been a data breach involving the registry. I am not prepared to accept that that data breach, which was well publicised, made it impossible to access documents on the Court file for a period of eight weeks.
The defendant finally contacted McGirr & Associates about the proceedings on 9 April. An appearance was hurriedly arranged for the directions hearing on 11 April. On that occasion, counsel appeared – obviously on very short notice – and informed me that the defendant wished to set the ‘default judgment’ aside. I informed counsel, who in fairness had had very little opportunity to obtain proper instructions, that the matter had been the subject of a final judgment and that it was not a default judgment. In fairness also to McGirr & Associates, they too had had almost no opportunity to take proper instructions at that point. This was not a situation of their making.
The present application was brought by notice of motion filed on 1 August 2025, more than three and a half months after the 11 April directions hearing. Mr Candelori explained that the process of taking instructions was neither straightforward nor quick. The problem was that there were aspects of the defendant’s evidence that she found difficult to revisit.
In the meantime, the plaintiff obtained letters of administration in relation to the deceased’s estate. In May 2025, the plaintiff informed the defendant (through their respective solicitors) that he intended to sell the East Gosford property as soon as possible. He filed a summons in the Real Property list, together with supporting affidavits, on 2 July 2025.
After some to-ing and fro-ing, the defendant’s notice of motion came before the duty judge and was eventually adjourned to be heard by me sitting as duty judge on 29 September 2025.
If the November 2024 orders were to be set aside, the defendant’s case would be that the decision to acquire the East Gosford property as joint tenants was made advisedly and that it was the deceased’s express intention to give her the benefit of joint tenancy despite the fact that he paid the bulk of the purchase price. She says that they approached a mortgage broker together and, having been advised of what it means to acquire property as joint tenants, that is what they decided to do.
The defendant also disputes my conclusion that it was the deceased who always paid the mortgage. She contends that she has at times paid the mortgage on the property and that she also paid significant sums to renovate it. She contends that the evidence before me in November 2024 shows that some of the mortgage payments were made by the deceased immediately after she transferred funds to him in order to allow him to do so. She also points out that she made numerous other cash payments to him, well past the date that I found the two had separated.
The defendant also disputes my conclusion that she and the deceased separated in 2019. Rather, she says that they remained a couple and that she was close to him right up until he died.
These are all contentions which the plaintiff would dispute, including by reference to the evidence he relied on at the hearing in November 2024. The plaintiff accepts that banking records show that the defendant did make some mortgage payments, but he points out that the evidence shows that she paid no more than $20,466 in this fashion. He also points out that of the total amounts she paid for renovating the property (which, on her evidence, largely involved remediating water damage), most was recouped through an insurance payout which was received by the deceased and then passed on directly to the defendant. Taking her evidence at its highest (that is, in the complete absence of supporting documentation) she paid a total of $84,641 to renovate the property. The insurance funds paid to her by way of reimbursement came to $74,777. In the result, Ms Dempsey’s outlay in terms of renovations came to less than $10,000.
The plaintiff also says that other evidence strongly supports my earlier conclusion that the deceased and the defendant separated in early 2019, only about six months after the East Gosford property was acquired. As the evidence before me in November 2024 shows, the plaintiff’s brother (being the deceased’s other son) visited his father very regularly at the East Gosford property during the years in which the defendant says they remained a couple. His evidence was that he never heard his father mention that the relationship with the deceased had resumed and he saw no evidence of her presence at the East Gosford property during that whole period.
The court may set aside or vary a judgment or order after it has been entered if—
…
(b) it has been given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order…
“[14] In arguing that a court should set aside an order that was regularly made, an applicant under rule 36.16(2)(b) must contend with the proposition that great value attaches to certainty in the outcome of litigation. It is relevant to quote what was said by Gibbs CJ, Mason J, Wilson J, Brennan J and Dawson J in University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 59 ALJR 481 at 482-3:
‘It may be assumed, without deciding, that the court has power to vacate its order of 22 November 1984, notwithstanding that it has been perfected. If such power exists, it must be exercised with great caution, after weighing what might otherwise be irremediable injustice against the public interest in maintaining the finality of litigation: see State Rail Authority of New South Wales v Codelfa Construction Pty Ltd (1982) 150 CLR 29 at 38. The present is not a case in which an order was made by mistake or as a result of fraud, or a case in which by some accident an order has been made against a party who was not heard.’
[15] This passage enjoins ‘great caution’ in approaching applications of the kind that Ms Northey now presses. It also gives some examples of situations in which it may be found appropriate for the court to intervene in relation to a final order that has been perfected: where the order was made by mistake, where the order was made as a result of fraud and where, by some accident, an order has been made against a party who was not heard.
[16] The central question is whether it is unjust to let the perfected order stand. The matter was put thus by Jordan CJ (Davidson J and Roper J concurring) in Vacuum Oil Co Pty Ltd v Stockdale (1942) 42 SR NSW 239 at 243-4:
‘The question is whether, upon the material that has been placed before us, there is a real likelihood that it would be unjust to the defendant to allow the judgment to stand. If so, it should be set aside on such terms as it will minimise the possibility of injustice to the plaintiff. If not, we should not interfere.’
[17] Examples of cases in which such a factor indicative of injustice has been found to be at work are:
(a) where the applicant proceeded to obtain the order in the face of an agreement with the respondent not to do so: Double Bay Newspapers Pty Ltd v The Fitness Lounge Pty Ltd [2006] NSWSC 226; (2006) 57 ACSR 131;
(b) where the applicant proceeded to obtain the order despite the respondent's accountant having been told by the applicant that ‘nothing would happen’ while negotiations continued: Deputy Commissioner of Taxation v Annesley Plant Hire Pty Ltd [2010] FCA 755;
(c) where the applicant proceeded to obtain the order after overlooking the fact that the basis for doing so had disappeared: Workers Compensation Nominal Insurer Pty Ltd; re Deli Glenbrook Pty Ltd [2010] FCA 380; and
(d) where solicitors instructed by the respondent in the proceedings failed to protect the respondent's interests: Registrar of Aboriginal Corporations v Murnkurni Women's Aboriginal Corporation (1995) 137 ALR 404.”
“The present is not a case in which judgment was signed by default through some procedural omission on the part of the defendant or his legal advisors. The action followed the ordinary course, except that its coming on for trial was delayed through dilatoriness on the part of the defendant. It is one in which, the action coming on for trial in its ordinary place in the list, no one was present in Court to conduct it for the defendant, and it therefore proceeded in his absence. In such a case, when the plaintiff is in no respect in default, a new trial will not be granted save in very special circumstances: Chitty's Archbold, 10th ed, 1457; 12th ed, 1526. In every such case, the Court has an inherent and unfettered, though judicial, discretion, in the exercise of which it will, however, necessarily consider (a) whether any useful purpose would be served by setting aside the judgment, and (b) how it came about that the applicant found himself bound by a judgment regularly obtained: Evans v Bartlam. As a general rule (although not necessarily in every case, if some reason exists for departing from it: Collins' Book Depot Pty Ltd v Bretherton), the Court requires an affidavit showing prima facie that the defendant has a good defence on the merits: Evans v Bartlam, and also an explanation of his absence which shows that justice requires that in the circumstances it should be excused. And if there has been gross negligence on the defendant's part, the Court will be the more disposed to require at least a reasonably clear case of merits to be shown, to incline it to interfere: Nash v Swinburne; Weitzel v Friedenreich. It is obvious that decisions on other sets of facts are of no assistance in arriving at a decision as to how it would be proper to exercise the Court's discretion in the present case.” (emphasis added; citations omitted)
“In my opinion, an applicant seeking to set aside a judgment obtained after an undefended hearing does not have to show that a different result is likely should the judgment be set aside and a new trial ordered. However, the circumstances may be such, as Jordan CJ says, as to require ‘a reasonably clear case of merits to be shown’; that is, that it appear reasonably clearly that there is a defence capable of producing a different result. If that defence depends on facts, then there should be some evidence of those facts; and the circumstances may be relevant to the quality of the evidence that is required to show a defence on the merits in particular cases. Among such circumstances could be the degree of the applicant’s default, and hardship to the respondent.” (emphasis added)
“That is, to succeed in an application under the predecessor to UCPR, r 36.16(2)(b), the applicant does not have to show that a different result is likely should the judgment be set aside and a new trial ordered. This general observation is subject to an important qualification, relevant in the present case. The more egregious the delay in seeking to set aside an undefended judgment, the greater the burden of persuasion that will be required of the applicant.” (emphasis added)
“A third observation about this aspect of the applicant’s case is that it tended to treat the expression of the test in Vacuum Oil as if it were a statute. It is true that in contexts far removed from the present, such as proof of a ‘likely’ substantial lessening of competition, ‘likely’ has been held to mean a real chance or possibility. I do not think, in context, that Jordan CJ by expressing the test as being ‘a real likelihood’ of injustice meant anything other than whether the Court was satisfied that it would be unjust to allow the order to stand. The suggestion that Jordan CJ regarded a mere possibility as being ‘a real likelihood’ of injustice is inconsistent with the judgment read as a whole. In the passage cited by the primary judge, Jordan CJ makes clear that ‘a new trial will not be granted save in very special circumstances’. In addition, Jordan CJ explains that in the case of gross negligence on the defendant’s part, the court will be more disposed to require at least a reasonably clear case of merits to be shown, to incline it to interfere. These conclusions are inconsistent with a possibility of injustice being a sufficient basis to set aside an order made in the absence of the defendant where the plaintiff is in no respect in default. That was the view taken by Barrett JA in Northey at [16], which the parties accept correctly states the test. That is unsurprising when consideration is given to the subject matter of the test – injustice. A state of satisfaction that it would be ‘unjust’ to let a perfected order stand necessarily involves the court making a broad evaluative judgment about a conclusion, injustice, which itself will be highly fact-dependent.”
I do not consider that it is appropriate to set the November 2024 orders aside. In reaching this conclusion I have had regard to the evidence as a whole but draw particular attention to the following matters.
This is a case where judgment was obtained by regular means and without any default by the plaintiff. By regular, I mean that the plaintiff did not in any way depart from the UCPR (or any other rule of practice) in bringing the proceedings to a final hearing. It is true that the proceedings were undefended, but the plaintiff took all appropriate steps under the rules to give the defendant the opportunity to participate in the proceedings. The plaintiff also took other reasonable steps to bring the proceedings to the attention of the defendant, such as by making unsuccessful attempts at personal service and by sending text messages. The plaintiff commenced the proceedings promptly after giving the defendant clear notice of his intention to do so, which she both received and acknowledged. The relief sought by the plaintiff in his statement of claim was substantially similar to the claims foreshadowed in his 12 September 2023 letter.
I am also not persuaded that the steps taken by the plaintiff were altogether unsuccessful in bringing the existence of these proceedings to her attention. I have already commented above on the lack of evidence about what the defendant could have gleaned from Mr Long’s attempts to contact her about service of the statement of claim during November and December 2023.
I have also inferred (see paragraphs [28]-[30] and [35] above) that the defendant did in any event become aware of the proceedings through text messages in August and October 2024, despite her lack of written acknowledgement in reply to these messages. I have further inferred (see paragraph [34] above) that she saw the online listing for the final hearing before it occurred, not after.
The defendant was living in Dubai during the whole of the period in issue, but this did not preclude her from instructing solicitors to respond to the September 2013 letter which foreshadowed imminent court proceedings. Her reasons for not instructing solicitors to respond to the statement of claim which closely followed on the heels of that correspondence came down to the fact that by November, she was not, in her words, in the head space to deal with it.
When she did finally feel able to deal with the proceedings, she attributes a further delay of about a month before even attempting to take any steps in relation to the proceedings to being thrown back into a funk by the prospect of having to deal with the case. The delay of about two months between when she prepared a notice of appearance and when she contacted the Court for assistance with filing is unexplained.
The medical evidence on which the defendant relies is underwhelming. On its face, it shows that in mid-October 2023 the defendant was hospitalised in Dubai for a period of about six to eight weeks due to mental health issues. It does not support a conclusion that the defendant was unable to instruct lawyers during the whole of the period between October 2023 and November 2024. It also does not support a conclusion that the defendant did not appreciate the significance of the proceedings which the plaintiff had foreshadowed in September 2023. If the prospect of these proceedings affected her head space in the way she says, it was precisely because she did understand the ramifications of the proceedings which the plaintiff was foreshadowing.
I note that the plaintiff disputes the authenticity of the defendant’s medical certificate. A solicitor for the plaintiff expended some efforts in trying to ascertain the existence of both the doctor and the medical centre, to no avail. A search for the name of the doctor with the Royal College of Physicians in London, of which the doctor purports to be a fellow, drew no results. Nor were attempts to confirm the existence of the Al Buraq Medical Centre in Sharjah any more successful. This evidence raises issues that are very difficult to resolve on an application such as this. The fact that I have not found the medical evidence on its face to be very supportive of the defendant’s claim means that it is unnecessary and inappropriate for me to express a concluded view about the authenticity of the evidence.
I do accept that the defendant’s case has merit in the sense that if her evidence were accepted at a retrial, it would form a basis to reach a conclusion different to that reached in my November 2024 reasons on the resulting trust issue. However, it is also relevant to note that the case would turn to a significant degree on questions of credit that were not explored before me. The defendant’s case on the resulting trust issue depends almost entirely on the following passage of evidence:
“32. Before settlement, Ian and I asked the conveyancers for advice on different aspects of the contract. I can remember these discussions like they were yesterday because it was the first property and first mortgage I had bought and entered into in my 61 years.
33. The conveyancer, Ms Tina Jackson, explained the differences between us purchasing the property as joint tenants or tenants in common. I can specifically remember her telling us both that if the property were purchased as joint tenants, then if one of us died the whole of the property would revert to the other. Ms Jackson said something to the effect of 'it is usual for husband and wife to buy as joint tenants'. I also specifically remember them telling us that if we purchased the property as tenants in common, we could sell or leave our interest to family members or whoever we wanted.
34. Ian and I told Ms Jackson that we would consider how we wanted to purchase the property and let her know. We then discussed it over the coming days, in which the following statements were made:
Ian: You have been paying the rent up here for so long, and looked after me so well, that I want to use Dad's money for the property and if I die first, I want you to have it.
[Ms Dempsey]: I appreciate that, and am happy to contribute to expenses and pay for the renovations when we are ready.
Ian: Ok that seems fair.
35. We then met Ms Jackson again and told her we wanted to purchase the property as joint tenants. We then both signed a contract for sale reflecting this.
36. Ian transferred $500,000 from his estate settlement into our Pepper Finance mortgage account prior to settlement.”
Notwithstanding her confident assertion that she remembers the discussion like it was yesterday, it would be necessary to exercise caution in accepting this account of matters that could only be denied by the deceased (at least in significant respects) and which, if accepted, would be very much to the defendant’s benefit: see Ashton v Pratt (No 2) [2012] NSWSC 3 at [18] (Brereton J). I note that the defendant’s assertion about the deceased putting $500,000 into a joint account is wrong, at least on the evidence now before the court.
It would in any event not be enough for the defendant to succeed on this issue at a retrial. That is because the plaintiff also sought alternative relief, including by asserting the existence of a constructive trust by reason of, among other things, the failure of a joint endeavour between the deceased and the defendant. This aspect of the case would turn on matters in relation to which the evidence seems to me to favour the plaintiff, namely the fact that the defendant moved out shortly after the property was purchased and that it was the deceased who generally made the mortgage payments and met other expenses from his own funds.
It is also important to keep in mind that the plaintiff also sought an order under s 59 of the Succession Act in the alternative, as well as an order designating the East Gosford property as notional estate. The plaintiff was a child of the deceased and his claim was brought within 12 months of the deceased’s death. It would be necessary to deal with this claim even if the defendant were altogether successful on the trust issues.
These matters mean that although there is a risk of injustice in allowing the judgment to stand insofar as it concludes the question of whether the defendant’s title to the East Gosford property is held subject to a resulting trust, it is difficult to say with any degree of certainty that this outcome represents an unjust outcome of the litigation overall. The effect of my judgment is that the plaintiff is entitled to 17.57% of the Gosford property. That is a proportional interest that significantly exceeds any contribution ever made by her to the purchase of the property, to the servicing of the mortgage or to the upkeep of the property.
I also note that the defendant has been generally dilatory in bringing this application. The application to set the judgment aside was not filed until August 2025, notwithstanding that even on her own best case she knew about the proceedings in November 2024. She cannot have been in any doubt whatsoever as to what the implications of the proceedings were at that stage, because she had instructed solicitors about these very issues in October 2023.
In the period after the plaintiff obtained orders and before the defendant filed her application to set them aside, the plaintiff quite understandably took steps to have letters of administration issued and to commence proceedings to obtain possession of the property for the purpose of sale. These steps were taken on the faith of a judgment of the Court which was obtained in accordance with all applicable rules.
Finally, the defendant submitted that it was in any event unjust to allow the costs order made on 8 November 2024 to stand. That order was for the defendant to pay the costs of the proceedings. The defendant submitted that the order was erroneous because, this being a matter in which litigation was ‘caused by the deceased’ by reason of his failure to leave a will, the estate should have borne the costs of the application. She nevertheless accepts that the plaintiff did incur costs of about $44,000 in attempting to serve her and to obtain orders for substituted service as well as other disbursements of counsels’ fees. She submits that if the orders were set aside, it should be on terms that she at least pay that amount, so as to minimise the injustice to the plaintiff.
I do not accept that there is any particular injustice in allowing the costs order to stand. I accept that if the defendant had appeared and if the matter had been fully argued I could have reached a different conclusion on the question of costs. However, that did not occur. The need to commence these proceedings and then to take them to a final hearing on the merits was entirely a function of the fact that the defendant was unwilling to accept the plaintiff’s position and thereafter did not participate in the proceedings. Although minds might differ about how these matters should be reflected in a costs order, I do not consider that there is any particular injustice in allowing my November 2024 costs order to stand.
I therefore decline to order that the November 2024 orders be set aside.
Prayer 4 of the notice of motion seeks an order pursuant to s 58(2) of the Succession Act extending time for the defendant to file an application for a family provision order but only in the alternative to the order setting aside the November 2024 judgment.
This position reflects the fact that the plaintiff has already sought a family provision order in the original summons and that, if the November 2024 judgment were to be set aside, the plaintiff’s claim under the Succession Act would be revived. If that were to occur, the defendant would be entitled to put her financial circumstances in issue which, she says, she intends to do if the judgment is set aside.
Normally, an application for an extension of time is brought in the same proceeding as the application for substantive relief and those questions are determined at the same time. In Verzar v Verzar [2014] NSWCA 45; (2014) 12 ASTLR 523, Meagher JA said at [35] (Macfarlan and Barrett JJA agreeing):
“Because the assessment of adequacy of provision for proper maintenance, education and advancement in life is to be made at the time the Court is hearing the application (ss 59(1)(c) and (2)), when addressing this question it is necessary first to consider when the application would have been likely to have been heard if made in a timely manner and then to compare the position in that event with the position in fact, namely that the application has been made out of time. Ordinarily, this analysis would assume, as is usually the case and as happened in this proceeding, that the application for an extension of time and the application for substantive relief are made in one proceeding and dealt with in a single hearing. (That was not the case with applications for extensions of time made under the Testator's Family Maintenance and Guardianship of Infants Act 1916: see De Winter v Johnstone [1995] NSWCA 120 at p 17 per Powell JA).”
The applicant can be excused for bringing the extension of time application in a separate proceeding than the substantive claim. Given the procedural history of the matter, it is understandable that she would bring her application for an extension of time in these proceedings in the way she has done.
However, the fact remains that the defendant has not yet brought the application. More to the point, significant matters that would inform the question of whether she has demonstrated ‘sufficient cause’ for an extension of time have not been addressed in her evidence. These matters include facts that would allow me to assess ‘the strength of the respondent's case for the making of a family provision order’: Verzar v Verzar at [25]. At [33]-[34], Meagher JA identified two ways in which it could be said that ‘the strength of the application’ could be relevant to whether there is ‘sufficient cause’. The first of these, relevantly, is ‘whether the application as made has sufficient prospects of success to justify an extension.’
The defendant’s 30 July 2025 affidavit stated that as of that date, it would take her two weeks to ‘prepare all the documents supporting the evidence of payments referred to in this affidavit’. She added that she had already collated all the documents and that she just needed time to get them into order. This was presumably a reference to the documents corroborating her evidence about making mortgage payments and payments towards the renovation of the East Gosford property.
She also said that she would require a further two weeks to finalise any further evidence in relation to the Succession Act claim as required by the practice note.
Neither of these things has occurred, notwithstanding the passage of two months since the 30 July 2025 affidavit was sworn.
As matters stand, the only evidence as to the defendant’s financial position and future needs was as follows:
“I also intend on putting my own financial circumstances before the Court for consideration in relation to any family provision claim by Jesse and Blake. I have worked on and off as a hairdresser since 1971. Other than the Gosford property, I have no assets. I am 67 years old and have no prospects of getting further work.”
I give this evidence some weight in considering the s 58(2) question. It is however an insufficient basis to make an informed assessment of the overall merit of her claim.
It is especially difficult to determine the basis, if any, on which the defendant would be eligible to bring a claim. Her submissions are silent on this issue.
One way in which the defendant might seek to establish her eligibility may be by way of s 57(1)(b), provided she can show that she was a person ‘with whom the deceased person was living in a de facto relationship at the time of the deceased person’s death’. The expression ‘de facto relationship’ is relevantly defined in s 21C of the Interpretation Act 1987 (NSW). As Brereton JA explained in Yesilhat v Calokerinos [2021] NSWCA 110; (2021) 21 ASTLR 227 at [134] (Bathurst CJ agreeing), the concept of ‘living together’ is indispensable to this notion.
However, the defendant on any view moved out of the East Gosford property in about June 2020, some two and a half years prior to the deceased’s death. It therefore seems unlikely that she would be able to establish that she was eligible as a de facto partner.
The same issue would likely confront any claim to eligibility as a person with whom the deceased was living in a close personal relationship at the time of death: s 57(1)(f).
The only remaining potential basis of eligibility would therefore seem to be s 57(1)(e). However, the extent of her dependency on the deceased is difficult to judge on the basis of the available evidence, save that she depended on him to pay the mortgage on the East Gosford property during the relatively short period in which she lived there with him.
Even if I assume that she can establish eligibility under s 57(1)(e), the defendant has made no submissions as to whether and, if so, on what basis there are factors warranting the bringing of the claim: s 59(1)(b).
The matters to which I referred make it impossible to assess the real merit of her Succession Act claim. I am not persuaded that she has shown sufficient cause for the Court to ‘otherwise order’ that proceedings be brought outside the 12-month period described in s 58(2).
The orders of the Court will be as follows:
The notice of motion filed 1 August 2025 is dismissed.
The parties are directed 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.
The parties are directed 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.
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Rance
Dempsey
(2020) 102 NSWLR 269
(1985) 59 ALJR 481
(1982) 150 CLR 29
(1995) 137 ALR 404