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Catchwords: COSTS – costs of application for appointment of trustees for sale of property pursuant to s 66G of the Conveyancing Act 1919 (NSW) – where usual order would be for co-owners’ costs to be paid out of the proceeds of sale – whether unreasonable conduct of the defendants caused costs to be incurred unnecessarily – whether indemnity costs should be ordered – whether defendant’s conduct warrants variation of earlier costs orders

Legislation Cited: Civil Procedure Act 2005 (NSW), s 98
Conveyancing Act 1919 (NSW), s 66G
Succession Act 2006 (NSW), ch 4, s 58

Cases Cited: Ambrus v Buchanan (No 2) [2023] NSWSC 5
Kardos v Sarbutt (No 2) [2006] NSWCA 206
Rance v Dempsey (No 2) [2025] NSWSC 1220
Rance v Dempsey (No 3) [2025] NSWSC 1375
Rance v Dempsey (No 4) [2026] NSWSC 269
Rance v Dempsey (No 5) [2026] NSWSC 270
Rance v Dempsey [2024] NSWSC 1423
Stibbard-Leaver v Leaver [2021] NSWSC 65

Category: Costs

Parties: Jesse Scott Rance (Plaintiff)
Glynis Annette Dempsey (Defendant)

Representation: Counsel:
N Simpson (Plaintiff)
JC Rogers (Defendant)
Solicitors:
Southern Waters Legal (Plaintiff)
McGirr & Associates (Defendant)

File Number(s): 2025/251209

JUDGMENT

1. HIS HONOUR: On 26 March 2026, I delivered judgment in these proceedings, making an order pursuant to s 66G of the Conveyancing Act 1919 (NSW) as sought by the plaintiff: Rance v Dempsey (No 5) [2026] NSWSC 270 (“Rance v Dempsey No 5”).

2. One of the orders made was that the parties approach my chambers within 14 days as to any further orders sought. Thereafter, I afforded the parties an opportunity to consider the orders which they sought and make submissions thereon.

3. As I indicated in Rance v Dempsey No 5, this was the fifth judgment in the long-running dispute between the plaintiff and the defendant as to entitlements arising from the estate of the late Ian Scott Astill. The plaintiff is the administrator of the estate and the defendant is a person who was, at some point prior to Mr Astill’s death, in a relationship with and cohabiting with him, albeit there is a dispute as to when the defendant last lived with Mr Astill prior to his death.

4. As will be apparent from each of the earlier judgments, the defendant has not been successful in either obtaining the orders she sought or resisting the orders sought by the plaintiff.

5. The parties have now provided written submissions on the further orders that should be made and have agreed that I should determine the matter on the papers.

6. The plaintiff seeks that:

7. The orders sought in pars 6(a)-(h) of the summons now be made;

8. The costs payable by the defendant pursuant to orders made in Rance v Dempsey [2024] NSWSC 1423 (“Rance v Dempsey No 1*”*) be paid from the defendant’s share of the net proceeds of sale and, in the event that the amount of the costs cannot be covered by her share of the proceeds of sale, the defendant is to pay any unpaid balance personally. That is, the plaintiff seeks that I vary the costs order made in earlier proceedings;

9. The defendant pays the plaintiff’s costs as agreed or assessed in accordance with the order for costs in Rance v Dempsey (No 3) [2025] NSWSC 1375 (“Rance v Dempsey No 3”);

10. The defendant pay the costs of these proceedings up to 29 January 2026 on an ordinary basis and on an indemnity basis from 30 January 2026, with the amount of the costs being payable from the defendant’s share of the proceeds of sale, or payable personally by the defendant, should the amount of the costs not be covered by her share of the proceeds of sale;

11. In the alternative, the defendant pays the plaintiff’s costs on an ordinary basis (not on an indemnity basis), but again, the costs be paid through the share of proceeds of sale or otherwise personally;

12. The balance of the net proceeds be retained in the plaintiff’s solicitor’s trust account, pending completion of any costs assessments; and

13. Following completion of all costs assessments, the plaintiff be paid the amounts outstanding by way of costs orders and any remaining balance of funds in the defendant’s share be paid to the defendant.

14. The defendant:

15. Does not oppose the orders sought in pars 6(a)-(f) of the summons, with the proviso that the powers granted by the proposed orders be granted to the trustees not the plaintiff;

16. Does not know whether an order can be made in terms sought in par 6(g);

17. Opposes an order in terms set out in par 6(h) of the summons;

18. Opposes the costs orders sought by the plaintiff; and

19. Submits that the appropriate costs order is that the parties’ costs of these proceedings be paid on an ordinary basis (as agreed or assessed) from the net proceeds of sale of the property.

Determination

8. I am satisfied that the orders sought at pars 6(a)-(f) of the summons should be made. They are not in dispute.

9. In terms of par 6(g), I accept that the trustees would have the power to pay the fees, charges, expenses or disbursements of or incidental to the sale, but lest there be any doubt about that, I will make the order set out in par 6(g).

10. In terms of par 6(h) of the summons, I note that this Court has already determined that 82.43 per cent of the property is held on a resulting trust for the estate of the late Mr Astill. Order 6(h) proposed in the summons merely reflects an earlier order of the Court. It is unnecessary to make the same order again.

11. In any event, the plaintiff has undertaken not to distribute the net proceeds of sale until further order of the Court, which would necessarily await conclusion of the proceedings brought by the defendant under the Succession Act 2006 (NSW). As such, subject to amounts which the plaintiff is entitled to pay or deduct having regard to the orders of the Court and subject to any application to be released from the undertaking, the plaintiff must hold the balance until further order of the Court.

Costs

12. I will now consider the other orders sought, which relate to costs.

13. I will deal firstly with the costs in these proceedings.

14. As is well known, costs are at the discretion of the Court and the Court has full power to determine by whom, to whom and to what extent costs are to be paid: Civil Procedure Act 2005 (NSW) s 98.

15. Ordinarily, the costs of these proceedings would be paid from the proceeds of sale, on the basis that the proceedings are an incident of joint ownership of the property: Kardos v Sarbutt (No 2) [2006] NSWCA 206 at [28]-[31].

16. In some circumstances, unreasonable conduct on the part of a party may result in a different order being made: Ambrus v Buchanan (No 2) [2023] NSWSC 5 at [6] (Williams J), citing Stibbard*-Leaver v Leaver* [2021] NSWSC 65 at [5] (Darke J).

17. Those circumstances might include:

18. Where the defendant is acting unreasonably, thereby compelling the plaintiff to pursue court proceedings for the sale of the property;

19. Where the defendant has unreasonably failed to accept an offer made by the plaintiff which might have avoided the incurring of costs; and

20. Where the defendant raises unmeritorious grounds as a basis for resisting the sale of the property. By this, I mean that on a proper consideration of the facts and legal principles, the position adopted by the defendant was not reasonably arguable.

21. The plaintiff submits that all those circumstances exist in this matter.

22. The defendant raised two matters of substance in resisting the s 66G application, being:

23. The defendant has a quasi-proprietary interest in the property; and

24. The making of the orders would undercut a statutory remedy in favour of the defendant.

25. The first point might be viewed as novel. Whilst parties should not be dissuaded from pursuing novel arguments which might involve the extension of ordinary principles, at least in this case, the defendant was unable to point to any case which supported her contention. As I said at [44] in Rance v Dempsey No 5, having a possible right to elect to acquire land, depending on the outcome of contested litigation and the defendant having the capacity to acquire the land, could not be described as having an interest in the land at this time.

26. In respect of the second point, I outlined a number of reasons why, in the circumstances of this matter, the contention that to make the proposed orders in the s 66G application would undercut a statutory remedy was not sufficient for me to decline to make the orders sought.

Whether the conduct of the defendant was unreasonable

22. In assessing the reasonableness of the defendant’s conduct in opposing the s 66G application, I consider the following matters are important:

23. The Court had already determined that there were significantly differing contributions for the purchase of the property. In Rance v Dempsey No 1 at [18], Hmelnitsky J observed that the deceased contributed 82.43 per cent of the purchase price and the defendant’s contribution was limited to half of the bank loan ($126,500).

24. The defendant’s contribution was thus a small proportion of the total sum;

25. The defendant lives in Dubai. She did not appear on the original hearing before Hmelnitsky J, even though she had been properly served. She then filed a motion seeking to set aside the orders and extending the time pursuant to s 58(2) of the Succession Act 2006 (NSW) for an application under that Act;

26. On 17 October 2025, Hmelnitsky J dismissed the motion and declined to make an order extending time to file an application under the Succession Act. Although the defendant foreshadowed an appeal, she did not pursue an appeal;

27. The defendant was ordered to pay the costs of the motion. I understand those costs have not been paid;

28. On 2 July 2025, the plaintiff then filed the summons leading to this matter being listed for hearing on 26 February 2026;

29. On 20 February 2026, being less than a week before the commencement of the hearing, the defendant filed a summons seeking:

(a) to restrain the plaintiff as the administrator of the estate from taking steps to sell the property; (b) a declaration that the defendant was the spouse of the late Mr Astill, within the meaning of ch 4 of the Succession Act; and (c) an order that the time in which the defendant may elect to acquire the property be extended.

8. The filing of the Succession Act summons took place in circumstances in which, although the defendant could have filed such a summons at an earlier time, she chose only to do so a week before the commencement of the hearing;

9. The Court had already refused leave to commence those proceedings out of time; and

10. The Court had already found that the defendant was not the spouse of the deceased at the time of his death. No doubt it will be a matter for the defendant to overcome these findings in her Succession Act claim.

11. The plaintiff continues to incur costs in dealing with the estate. The defendant has already caused the plaintiff to incur substantial costs, but has not been successful in any of her arguments.

12. The combination of all the matters causes me to conclude that the usual approach to costs should be varied and the defendant should be ordered to pay the plaintiff’s costs of the proceedings, such costs to be paid from the defendant’s share of the proceeds of sale of the property, or if that share is insufficient, paid by the defendant personally. This is because I have determined that the defendant’s conduct during the course of the s 66G application was unreasonable in all the circumstances.

Indemnity costs

25. The plaintiff seeks an order that the defendant pay the plaintiff’s costs of these proceedings on an ordinary basis up to 29 January 2026, and then on an indemnity basis from 30 January 2026 onwards. In doing so, the plaintiff relies on two matters. Firstly, the plaintiff submits that the defendant failed to accept a proposal made by the plaintiff to resolve proceedings on 30 January 2026, which included an order that no orders be made against either party as to costs and failed to accept an offer on 19 February 2026 to quarantine the proceeds of sale in the plaintiff’s solicitors trust account until the conclusion of any related proceedings. Secondly, the plaintiff says the defendant’s conduct more generally caused the needless incurring of costs.

26. I have already dealt with the unreasonable conduct of the defendant. This has resulted in the variation of the usual costs order in these types of proceedings. The proposal made by the plaintiff on 30 January 2026 was only that the defendant consent to all of the orders sought in the summons other than costs. That was hardly a compromise, albeit the plaintiff ultimately obtained the orders sought.

27. Similarly, the email of 19 February 2026 in which the plaintiff indicates a willingness to quarantine the proceeds of sale of the property until the conclusion of the Succession Act proceedings is not expressed to be an offer to do anything but is a response to the request for an adjournment. The suggestion that the funds could be quarantined is hardly an offer and does not satisfy that which would be necessary to justify an order for indemnity costs.

28. Further, the proposal by the defendant contained in proposed short minutes to the effect that steps commence to sell the property (without the appointment of a trustee) is not a proposal which could have been accepted and does not provide a basis for varying the orders I propose.

29. I do not consider that there should be an order for indemnity costs.

Varying other costs orders

30. The plaintiff also seeks that I vary the costs orders made in respect of the earlier proceedings, that is, Rance v Dempsey No 1, Rance v Dempsey (No 2) [2025] NSWSC 1220 and Rance v Dempsey No 3, to the same effect as orders made in Rance v Dempsey (No 4) [2026] NSWSC 269 and Rance v Dempsey No 5. That is, that the costs be paid from the defendant’s share of the net proceeds of the sale of the property or, failing that, paid by the defendant.

31. I reject that submission. I accept the submission of the defendant that these proceedings are not a vehicle for securing costs orders from earlier proceedings. As the defendant says, on the determination of the Succession Act proceedings, one or other party may approach the Court for directions in respect of the funds in trust.

32. Further, the question of who should pay the costs and on what basis on which those costs should be paid was considered carefully by Hmelnitsky J in each of the judgments of his Honour when dealing with costs. I do not accept that I should revisit or vary those orders.

Conclusion

33. To be clear, the effect of the orders I propose are thus that:

34. All the costs and expenses associated with the sale of the property may be paid;

35. The existing costs orders against the defendant in the earlier proceedings remain;

36. The defendant is to pay the costs of these proceedings, with costs being payable from her share of the estate or if not satisfied, personally; and

37. The balance, after payment of all fees and costs is to be held in trust until conclusion of the Succession A**ct proceedings or further order of the Court.

Orders

34. Therefore, I make the following orders:

35. The defendant is to pay the plaintiff’s costs of the proceedings as agreed or assessed, on the ordinary basis.

36. Such costs, once agreed or assessed, including the costs of assessment, may be deducted by the plaintiff from the defendant’s share of the estate or, if the defendant’s share is insufficient, to be paid by the defendant.

37. Upon completion of the sale of the property situated at [redacted] East Gosford NSW 2250 (being Folio Identifier [redacted]) (Property) in accordance with order 2 made in Rance v Dempsey (No 5) [2026] NSWSC 270, the plaintiff is to distribute the proceeds of sale in the following order of priority:

(a) Council rates, water rates, land tax and any other statutory duties or charges (if any); (b) Balance of the mortgage owed to Pepper Finance Corporation being Loan Number [redacted] secured over the land (Mortgage); (c) Any fees or charges incidental to the discharge of the Mortgage as registered on the title of the Property by Dealing Number [redacted]; (d) The real estate agent’s commission and charges; (e) The amounts owing to any person having a secured interest; (f) All charges of the trustees for sale appointed by order 1 made in Rance v Dempsey (No 5) [2026] NSWSC 270 charged in accordance with order 5 made in Rance v Dempsey (No 5) [2026] NSWSC 270. (g) Any other fees, charges, expenses or disbursements of or incidental to the sale of the Property; and (h) The costs payable in accordance with orders 1 and 2.

4. The remaining balance is to be held in the plaintiff’s solicitor’s trust account until the conclusion of any proceedings commenced by the defendant pursuant to the Succession Act 2006 (NSW), in accordance with the plaintiff’s undertaking or further order of the Court.

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