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[2025] NSWSC 1375
Supreme Court of NSW
2025-11-21
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 3) [2025] NSWSC 1375
Hearing dates: On the papers
Date of orders: 21 November 2025
Decision date: 21 November 2025
Jurisdiction: Equity
Before: Hmelnitsky J
Decision: The defendant is to pay the costs of the notice of motion filed 1 August 2025 on the ordinary basis
Catchwords: COSTS — Party/Party — Exceptions to general rule that costs follow the event — Where defendant entirely unsuccessful on motion to set aside principal judgment — Where plaintiff alleges defendant delayed in prosecuting its notice of motion — Whether costs should be ordered on indemnity basis
COSTS — Party/Party — General rule that costs follow the event — Whether costs should be ordered on a fixed sum basis — Whether Court can exercise power to award gross sum fairly between the parties — Where plaintiff advised of its total costs and disbursements
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) r 42.2
Cases Cited: Ahern v Aon Risk Services Australia Ltd (No 2) [2022] NSWCA 39
Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213
Rance v Dempsey [2024] NSWSC 1423
Rance v Dempsey (No 2) [2025] NSWSC 1220
Texts Cited: Nil
Category: Costs
Parties: Jesse Scott Rance (Plaintiff)
Glynis Annette Dempsey (Defendant)
Representation: Counsel:
A Green (Plaintiff)
J C Rogers (Defendant)
Solicitors:
Southern Waters Legal (Plaintiff)
McGirr & Associates (Defendant)
File Number(s): 2023/424312
Publication restriction: Nil
I have delivered two judgments in this matter. In the first, delivered on 8 November 2024, I declared that the defendant held a house in Gosford, NSW, on a resulting trust as to 82.43% for the estate of the late Ian Scott Astill: see Rance v Dempsey [2024] NSWSC 1423 (the November 2024 judgment). I also ordered the defendant to pay the plaintiff’s costs.
The second judgment was delivered on 17 October 2025: Rance v Dempsey (No 2) [2025] NSWSC 1220 (the October 2025 judgment). In that judgment, I rejected an application by the defendant for the November 2024 judgment to be set aside. I directed the parties to make submissions about the costs of that application.
These reasons deal with the costs of the application that resulted in the October 2025 judgment. These reasons assume familiarity with both earlier judgments in this matter.
The defendant’s application was brought by way of notice of motion filed on 1 August 2025 (the notice of motion). The orders sought in the notice of motion were as follows:
“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.”
In my October 2025 judgment, I refused to grant any of the relief sought. The defendant was wholly unsuccessful in her application and, in the ordinary course, should be ordered to pay the plaintiff’s costs of the notice of motion: Uniform Civil Procedure Rules 2005 (NSW) r 42.2.
The plaintiff however seeks orders that the defendant pay his costs on the indemnity basis. The submission is not based on the defendant’s unreasonable failure to accept an offer of compromise. There is no evidence that the plaintiff made any such offer. Rather, the plaintiff seeks an indemnity costs order on the basis of my findings in the October 2025 judgment as to the defendant’s tardiness in filing and then prosecuting the notice of motion and as to the failure of the defendant to bring forward cogent evidence in support of the relief sought in the notice of motion. The plaintiff particularly relies on my findings at paragraphs [25], [28], [29], [35], [36], [39], [41], [42], [58], [71], [78], [79] and [88] of the October 2025 judgment.
I do not consider that anything said in the October 2025 judgment as to the lack of merit in the defendant’s case warrants a departure from the ordinary rule. Many of the findings on which the plaintiff particularly relies concern the defendant’s conduct in dealing with the proceedings leading up to the November 2024 judgment. However, I have already made a costs order in the plaintiff’s favour in respect of that judgment.
It is true that the defendant was unable to persuade me to set the November 2024 judgment aside. But it could not be said that her application to do so was so hopeless that it should not have been brought. Nor could it be said that the hearing was conducted in a way that was at all wasteful of anyone’s resources.
In my view, it is appropriate for the defendant to pay the costs of the notice of motion on the ordinary basis.
The plaintiff also seeks a fixed sum costs order. In Ahern v Aon Risk Services Australia Ltd (No 2) [2022] NSWCA 39, the Court of Appeal considered the factors relevant to the making of a gross sum costs order at [13]-[18]. At [15], their Honours said that the principal purpose of such an order is to ‘avoid the expense, delay and aggravation likely to be involved in a contested costs assessment process’.
However, it is appropriate to make such an order only where the Court is in a position to do so fairly as between the parties: Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213 at [22] (Giles JA) and where an appropriate award can be determined on the material before the Court.
Here, I am not in a position to make an informed assessment of costs incurred. Although I have been told what the plaintiff’s total costs and disbursements are, even then I do not know how much of the total is solicitors’ costs and how much is disbursements. I have not been provided with bills or any other material to inform me how and when the costs were incurred.
In the circumstances, I decline to make a gross sum costs order.
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Rance
Dempsey
(2002) 54 NSWLR 738