Rance v Dempsey (No 3)

1. [1]

   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.

2. [2]

   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.

3. [3]

   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.

4. [4]

   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:

5. [5]

   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.

6. [6]

   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.

7. [7]

   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.

8. [8]

   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.

9. [9]

   In my view, it is appropriate for the defendant to pay the costs of the notice of motion on the ordinary basis.

10. [10]

    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’.

11. [11]

    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.

12. [12]

    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.

13. [13]

    In the circumstances, I decline to make a gross sum costs order.

ORDERS

1. [14]

   The defendant is to pay the costs of the notice of motion filed 1 August 2025 on the ordinary basis.