Rance v Dempsey (No 4)

HIS HONOUR: At the commencement of the hearing today the defendant made an application for an adjournment on the basis the defendant has filed proceedings in the Probate and Family Provision List in this Court (summons filed 20 February 2026) seeking an order restraining the plaintiff, who is the defendant in those proceedings, from disposing of the estate or any part of the estate of the deceased as well as declarations, the effect of which is to declare the plaintiff the spouse of the deceased, within the meaning of Ch 4 of the Succession Act 2006 (NSW).

The defendant relies on two affidavits of her solicitor, Robert Candelori, dated 6 August 2025 and 25 February 2026.

The plaintiff opposes the adjournment. The plaintiff relies on the affidavit of Blake Rance dated 4 September 2025 as well as affidavits of the defendant dated 30 July 2025 and 20 February 2026.

The point of the affidavits relied upon by the defendant in support of the application for an adjournment is to establish that, firstly, the defendant was contemplating an appeal from the earlier decisions of this Court (on which this application is based) and then secondly, the defendant was contemplating a Succession Act claim and has in fact now filed a Succession Act claim as evidenced by the summons to which I have referred.

The point of the evidence relied upon by the plaintiff in response is to raise issues of fact, that is, for example, the affidavits of Mr Rance, to put in issue the very proposition relied upon by the defendant, that is, that she was the spouse of the deceased.

It is not my function on this application, being an application for an adjournment, to determine any issues of fact or consider whether one party might have the better of any legal argument about whether or not the defendant was really the spouse of the deceased or whether or not the lodging of a Succession Act claim should have the effect of precluding the plaintiff from pursuing the orders he seeks at this time.

In reality, the defendant is seeking an adjournment on the basis that the defendant has a proper basis for resisting the orders sought in the summons.

The gravamen of the defendant’s submission is that it would be better for these issues to be left to the hearing in the Succession Act claim rather than the issues be determined at this time.

Of course, there is merit in the defendant’s position that she wishes to pursue a Succession Act claim and that the parties will be required to mediate that case and that, in any event, if orders are made that she seeks in the Succession Act claim she may wish to elect to acquire the property.

These are all matters which may happen in the Succession Act claim. However, these are also matters which are raised by the defendant to resist the orders sought at this time. Importantly, as I understand the parties’ positions there is no other basis on which the defendant is resisting the orders sought in the summons at this time.

As such, the effect of what is being submitted is that it would be better if I did not determine that issue at this time and leave it for the Succession Act claim.

The problem is that the plaintiff is here. The plaintiff wishes to proceed. The matter has been listed for hearing and as I have said there is no substantive defence to the orders sought other than that which I have just outlined.

If, as a matter of law, that is a proper basis for resisting the orders sought, then that is what I will determine. If as a matter law, it is not a proper basis for resisting the orders sought then the result of the case will be obvious.

In my view, the raising of the issue by the defendant and the desire that it be determined in another court or that the parties go to mediation before this hearing is not a proper basis for adjourning these proceedings.

The matter has been listed for hearing and my task is to determine the matter having regard to the issues raised. In the circumstances, the application for adjournment is refused.