Background
This was the sixth judgment in a long-running dispute over property belonging to the estate of the late Ian Scott Astill. Jesse Rance, as administrator of the estate, sought orders under s 66G of the Conveyancing Act 1919 (NSW) for the appointment of trustees for sale of a property at East Gosford, NSW. The defendant, Glynis Dempsey, was a former partner of the deceased who had cohabited with him prior to his death, though the precise timing of that cohabitation was contested. Earlier judgments had established that the deceased had contributed 82.43 per cent of the property’s purchase price, with that share held on resulting trust for his estate, while the defendant’s contribution was limited to half of a bank loan of $126,500.
In the immediately preceding judgment, Rance v Dempsey (No 5) [2026] NSWSC 270, Cavanagh J ordered the sale of the property and appointed trustees. The defendant had unsuccessfully resisted the s 66G application on two grounds: that she held a quasi-proprietary interest in the property, and that granting the sale orders would undercut her potential statutory remedy under the Succession Act 2006 (NSW). She had also filed a late summons under the Succession Act less than a week before the hearing, seeking to be declared the deceased’s spouse and to extend the time to elect to acquire the property — despite the Court having already refused leave to commence those proceedings out of time.
Following the principal judgment, the parties provided written submissions on further consequential orders, including the priority of distribution of sale proceeds and the appropriate costs orders. The plaintiff sought costs on an indemnity basis from 30 January 2026 and also sought to vary costs orders made in earlier proceedings so that they too would be charged against the defendant’s share of the proceeds.
The Court’s Holding
Cavanagh J made orders directing the distribution of proceeds of sale in a specified priority — covering statutory charges, the Pepper Finance Corporation mortgage, agent’s commission, secured interests, trustee charges, and sale expenses — with costs recoverable under the present proceedings to rank last among those deductions. The balance of the net proceeds is to be held in the plaintiff’s solicitor’s trust account pending resolution of the defendant’s Succession Act proceedings or further order of the Court.
On costs, the Court departed from the ordinary rule applicable to s 66G proceedings — that co-owners’ costs be paid from the proceeds of sale — and ordered the defendant to pay the plaintiff’s costs on the ordinary basis. The Court found the defendant’s conduct throughout the s 66G application was unreasonable: she had failed in every argument she raised, filed her Succession Act summons less than a week before the hearing in circumstances where she could have done so earlier, had not paid prior costs orders, and had not pursued a foreshadowed appeal. Those costs are to be deducted from the defendant’s share of the proceeds, with any shortfall to be paid by her personally.
However, the Court declined to order indemnity costs. The plaintiff’s offer of 30 January 2026 — essentially inviting the defendant to consent to all orders sought other than costs — was not a genuine compromise, and the 19 February 2026 communication about quarantining proceeds was not expressed as a formal offer sufficient to justify indemnity costs. The Court also declined to vary the costs orders made in the five earlier proceedings, holding that those orders had been carefully considered by Hmelnitsky J and that the present proceedings were not a vehicle for relitigating them.
Key Takeaways
- In s 66G applications, the default rule that costs be paid from proceeds of sale can be displaced where a defendant’s conduct in opposing the application is found to be unreasonable — including by raising unmeritorious arguments, filing late procedural steps, and failing to comply with earlier costs orders.
- An offer that amounts to no more than a request for consent to the relief already sought is unlikely to constitute the kind of compromise that justifies indemnity costs; nor is an informal indication of willingness to quarantine funds.
- A later proceeding in a running series of related cases is not an appropriate vehicle for varying or revisiting costs orders carefully made in earlier proceedings; a party seeking to reopen such orders should do so through proper channels at the appropriate time.
- Where a co-owner’s conduct causes the plaintiff to unnecessarily incur costs in s 66G proceedings, the court may direct that those costs be charged first against that party’s share of proceeds and, if insufficient, recovered personally from that party.
Why It Matters
This decision provides practical guidance on when courts will depart from the usual costs regime in applications to appoint trustees for sale of co-owned property. The default rule — that both parties’ costs come from the proceeds — reflects the consensual, administrative nature of such proceedings, but Rance v Dempsey (No 6) confirms that persistent, unsuccessful opposition coupled with late procedural manoeuvring can shift that burden entirely onto the resisting party. Practitioners advising co-owners who oppose forced sales should carefully assess the merits before each step, bearing in mind the risk that a pattern of unsuccessful litigation may be treated cumulatively as unreasonable conduct.
The decision also serves as a reminder that estate administrators facing protracted resistance to the orderly realisation of assets may ultimately recover costs personally from the obstructing party’s share, providing some practical protection for beneficiaries of an estate against the erosion of estate assets by unnecessary litigation costs.