Equitable presumptions
Equity generally assumes that people do not intend to make gifts when contributing money towards the purchase of property. Accordingly, if A buys property but registers it in B’s name, equity presumes that B holds the property on a resulting trust for A. However, in certain recognised relationships, including
- a husband to his wife (but not to a de facto partner),
- a fiancé to his fiancée, and from
- a parent to a child.
The purchase was primarily funded by the deceased’s inheritance, supplemented by a joint mortgage of $253,000. The defendant’s contribution equated to $126,500 (17.57%), while the deceased contributed 82.43% of the total.
equity assumes that A intended to make a gift to B. Criticism of this presumption includes that it is outdated, sexist, and inconsistent with contemporary social values.
In either case, both presumptions can be rebutted by evidence showing the actual intention of A and B at the time of the property’s purchase.
Case Law
In Calverley v Green (1984) 155 CLR 242, Deane J reaffirmed these principles as settled law. When two persons buy property in equal or unequal shares, there’s a presumption of trust for themselves unless a relationship suggests otherwise. If only one name is on the deed, despite contributions, a rebuttable presumption of a resulting trust exists, unless legislation states otherwise.
If two or more people contribute to the purchase price but the title registration is in the name of only one person, a resulting trust arises in favour of those who contributed. Where contributions are unequal, and the parties are not in a relationship giving rise to a presumption of advancement, the property is held in proportion to their respective contributions as tenants in common.
Gibbs CJ, Mason, and Brennan, JJ, agreed with this principle: a resulting trust is presumed when, on a purchase, legal title is in someone other than the person who paid for it, unless A is a close relative of B. It’s a rebuttal ‘legal presumption’ with evidence, but Deane J noted that it functions like a burden of proof, albeit not definitive of actual intent. Some argue it indicates that the person who paid declared a trust in their favour; authorities primarily support this view.
The presumptions don’t apply if A lends money to B for a purchase; B isn’t an implied trustee, unless an express trust exists. Disputes can arise over who bears the burden of proof.
In Heydon v Perpetual Executors Trustees and Agency Co. (WA) Ltd. (1930) 45 CLR 111; [1931] ALR 65, the court held the payer must prove the loan, not just payment.
In Seldon v Davidson [1968] 1 WLR 1083; [1968] 2 All ER 755, payment implies an obligation unless evidence suggests otherwise.
In Joaquin v Hall [1976] VR 788, an assertion that the money was a gift constitutes a denial, thereby placing the burden of proof on the plaintiff.
Importantly, a person doesn’t become a trustee under a resulting trust until they are aware of the circumstances that created it.
Background
Rance v Dempsey [2024] NSWSC 1423 concerned the estate of the late Ian Scott Astill (the deceased), brought by his son, Jesse Scott Rance (the plaintiff) on 23 November 2023. The deceased and Glynis Dempsey (the defendant), the deceased’s former de facto partner, owned a property at White Street, East Gosford (“the Gosford House”) as joint tenants.
- The deceased was born in 1959 and had two sons, the plaintiff Jesse (b. 1988) and Blake (b. 1989), from his earlier relationship with Diane Rance.
- The defendant and the deceased began living together in 2012.
- In March 2018, the deceased received $952,758 from his parents’ estates.
- In August 2018, the defendant and the deceased purchased the Gosford House for $720,000, registered as joint tenants.
The defendant and the deceased lived together until early 2019, when they separated acrimoniously. In November 2022, the Court issued a default notice. The deceased remained in the property until 2022, paying all loan instalments totalling around $45,000.
The deceased died intestate on 1 December 2022, leaving modest assets apart from his share in the Gosford House. The deceased estate therefore passed to the plaintiff and Blake as his only surviving children under s 127 of the Succession Act. The plaintiff brought this action on behalf of the estate (before the grant of letters of administration), seeking a declaration that the Gosford House was held on a resulting trust for the deceased estate, reflecting the parties’ unequal financial contributions.
Alternatively, the plaintiff claimed that a constructive trust arose due to the failure of their joint endeavour and the deceased’s disproportionate payments toward the property. The plaintiff also sought, in the further alternative,
- Further provision under s 60 of the Succession Act 2006 (NSW)
- A notional estate order under s 80, designating the deceased’s former joint interest in the Gosford House as notional estate; and
- An order under r 7.10 of the UCPR appointing the defendant as personal legal representative of the estate.
Hmelnitsky J found that as the deceased and the defendant were not married, the presumption of advancement did not apply. Their unequal contributions to purchasing the Gosford House led to a resulting trust, as in Calverley v Green.
“a resulting trust was presumed to arise in favour of a purchaser in the proportion in which the purchaser contributed the purchase money. The resulting trust, however, was determined not to arise where there are circumstances that remove reason to presume that the title does not sit with beneficial interest, such as where a so-called presumption of advancement arises.”
At the final hearing, the plaintiff’s central argument shifted, submitting that the deceased provided the vast majority of the purchase price, with the Gosford House held on resulting trust in proportion to the defendant’s and the deceased’s contributions (rather than a constructive trust). The Court permitted the amendment of pleadings to reflect this change.
The deceased’s beneficial interest corresponded to his share of the purchase price at the time of acquisition—82.43%—not adjusted for later mortgage repayments.
Service and Non-Appearance of Defendant
The defendant did not participate in Rance v Dempsey [2024] NSWSC 1423. Despite extensive efforts by the plaintiff’s solicitors (Northern Beaches Lawyers and later Southern Waters Legal) to locate and serve the defendant—including correspondence with former lawyers, process serving at multiple addresses, and court-approved substituted service—the defendant failed to appear or respond. Hmelnitsky J accepted that the defendant was served and notified of the final hearing scheduled for 6 December 2024.
Hmelnitsky J addressed several procedural and substantive issues concerning the estate of the deceased and the claim brought by the plaintiff.
Although the defendant did not appear, the Court considered whether it could still grant relief. Citing IMF (Australia) Pty Ltd v Sons of Gwalia Ltd, Pharmacy Depot Hurstville Pty Ltd (in prov liq), and Oil Basins Ltd v Commonwealth, Hmelnitsky J explained that:
- The absence of a contradictor (a party opposing the claim) does not deprive the Court of jurisdiction;
- Declaratory relief where the issues are concrete and the defendant, although inactive, has a real interest in the outcome.
Hmelnitsky J also referred to Zetting v Müller [2017] NSWSC 659, where similar declaratory relief was granted despite the opposing party’s death, confirming that such orders may be appropriate when there is clear evidence and utility in resolving ownership.
Appointment of Estate Representative
Because no grant of administration had been made—likely due to the estate’s minimal assets—Hmelnitsky J found it appropriate to appoint someone to represent the estate under UCPR r 7.10, which allows such an appointment when a deceased estate has an interest in proceedings but is unrepresented.
The plaintiff consented to act as the estate’s representative. Hmelnitsky J found this suitable since:
- The plaintiff is one of two beneficiaries (with his brother, Blake), and
- The plaintiff’s actions had already advanced the estate’s interests by establishing its beneficial entitlement in the Gosford House.
Hmelnitsky J therefore appointed the plaintiff as the legal personal representative of the estate, effective November 23, 2023, upon the filing of the statement of claim—the original request to appoint the defendant as representative was deemed inappropriate.
Findings and Orders
Hmelnitsky J held that:
- The plaintiff had clearly established that the deceased’s estate held an 82.43% beneficial interest in the Gosford House under a resulting trust; and
- There was strong utility in formalising that interest for the benefit of the estate and its beneficiaries.
Accordingly, Hmelnitsky J made the following orders:
- Appointed the plaintiff as the legal personal representative of the deceased’s estate, effective 23 November 2023.
- Declaration: The defendant holds the Gosford House on a resulting trust, including 82.43% of the interest for the deceased’s estate.
- The defendant is to pay the plaintiff’s legal costs.
- The estate pays any shortfall in recovered costs on an indemnity basis.
- The matter is listed for directions on 11 April 2025, with liberty to apply if implementation issues arise.
Summary
Hmelnitsky J thus confirmed that the deceased’s estate holds 82.43% of the Gosford House under a resulting trust. The plaintiff was formally appointed to represent the estate, and the case proceeds were resolved despite the absence of the defendant, as the evidence strongly supported the plaintiff’s claim and there was a clear practical benefit in recognising the estate’s equitable interest.
In essence, the plaintiff successfully argued that the Gosford House was held on a resulting trust, with the plaintiff’s 82.43% beneficial interest forming part of his intestate estate, since the defendant’s contribution was minor and the presumption of advancement did not apply to their de facto relationship.
Rance v Dempsey (No 2) [2025] NSWSC 1220
On 18 February 2025, the defendant filed a notice of appearance. Later, on 1 August 2025, filing a notice of motion seeking several interim and interlocutory orders.
Orders Sought
Interim relief to:
- Restrict the plaintiff (or any court-appointed trustees for sale) from taking steps to sell the Gosford House (Title Folio 33/38604, [XX] White Street) until further court order, including entering the property or engaging agents.
- Require the plaintiff to notify any current or prospective trustees of the sale of this restraint within one business day.
Interlocutory relief to:
- Set aside a prior declaration of resulting trust (Order 2, made 8 November 2024) in favour of the deceased’s estate, under UCPR r 36.16(2)(b) or the Court’s inherent jurisdiction.
- Alternatively, extend the time limit for the defendant to file a family provision claim under s 58(2) of the Succession Act 2006 (NSW).
- Set aside the earlier costs order (Order 3, made 8 November 2024) requiring the defendant to pay the plaintiff’s costs.
- Seek further or other appropriate orders and costs.
Evidence and Procedural Context
The defendant relied primarily on her own affidavit, which was detailed and addressed both her :
- version of the procedural history (explaining earlier non-engagement in the proceedings); and
- substantive claim that the Gosford House was not subject to a resulting trust.
Although this was an interlocutory application, Hmelnitsky J granted the plaintiff leave to cross-examine the defendant, allowing His Honour to test key aspects of the defendant’s timeline and knowledge.
However, complications arose:
- The defendant was residing in the UAE, and had made no arrangements to give evidence via video link under the Evidence (Audio and Audio Visual Links) Act 1998 (NSW).
- The defendant only raised the residence issue during the hearing, and there was no evidence about UAE legal restrictions on administering oaths remotely.
- Hmelnitsky J, citing caution consistent with In the matter of Sunnya Pty Ltd [2023] NSWSC 1286, refused to take evidence via video link.
The defendant’s absence caused procedural difficulties, as Hmelnitsky J’s decision followed the reading of the defendant’s affidavit and the grant of leave to cross-examine. The defendant, however, chose not to seek an adjournment to return to Australia for cross-examination.
Rance v Dempsey (No 2) [2025] NSWSC 1220 ultimately proceeded on the basis that:
- The defendant’s affidavit stood as evidence, but
- The absence of cross-examination affected the weight the court could give it.
Hmelnitsky J therefore approached the factual assessment in the typical manner for interlocutory matters—relying solely on affidavit evidence.
Scope of the Defendant’s Evidence
The defendant’s affidavit provided:
- The procedural history and her reasons for not participating earlier in the litigation, and
- The substance of her defence, namely that not treating the Gosford House as held on resulting trust for the deceased’s estate.
Procedural Fairness and Notice
Hmelnitsky J noted that the plaintiff obtained judgment regularly and lawfully, having complied with all procedural rules under the UCPR.
- Rance v Dempsey [2024] NSWSC 1423 was undefended, with the defendant given every reasonable opportunity to participate in the proceedings.
- The plaintiff made multiple attempts to notify the defendant personally and electronically, including through text messages.
- The claim was consistent with prior correspondence in September 2023 that the defendant had received and acknowledged.
Hmelnitsky J inferred that the defendant was aware of the proceedings, had been contacted several times and likely saw the online court listing for the final hearing before it occurred.
Defendant’s Explanations and Medical Evidence
The defendant claimed she was unable to respond due to being hospitalised in Dubai for mental health reasons. However, Hmelnitsky J found this evidence weak and unconvincing:
- The medical certificate covered only the period from mid-October to late November 2023, not the entire year in question.
- It did not show that the defendant was incapable of instructing lawyers.
- Efforts to verify the doctor’s identity and the medical centre were unsuccessful, raising doubts about authenticity.
Even taking the defendant’s claims at face value, Hmelnitsky J found the delays to be excessive and unexplained, particularly the ten-month gap before the defendant applied in August 2025.
Substantive Merits
While the defendant’s version of events—claiming the deceased intended her to take the whole property—could potentially support a different outcome, the defendant’s evidence relied heavily on uncorroborated recollections of conversations with the deceased. Hmelnitsky J emphasised that:
- Such evidence must be treated with caution, especially when a Court cannot test it.
- The defendant’s version contained factual errors, a claimed transfer of $500,000 into a joint account, which contradicted the documentary evidence.
Even if holding a retrial, the plaintiff had alternative claims (constructive trust and family provision) that were likely to succeed based on evidence that:
- The deceased paid the mortgage and expenses themselves.
- The defendant moved out soon after purchase, and
- The plaintiff’s claim under s 59 of the Succession Act was timely and independently valid.
Equity and Delay
Hmelnitsky J acknowledged a minor risk of injustice but concluded the overall outcome was not unfair:
- The existing judgment gave the defendant 17.57% of the Gosford House—more than her actual contribution.
- The plaintiff, based on a valid court order, had already taken steps to administer the estate and sell the property.
The defendant’s delay in applying to set aside the judgment further undermined her position.
Costs Order
Hmelnitsky J rejected the argument that the costs order should be overturned.
- The defendant contended that litigation was caused by the deceased’s failure to make a Will, so the estate should bear the costs.
- The Court disagreed, finding that the proceedings were necessary only because the defendant failed to engage and the plaintiff had incurred about $44,000 in service and legal expenses.
- Accordingly, there was no injustice in allowing the November 2024 costs order to stand.
Extension of Time under the Succession Act
As an alternative, the defendant sought an extension of time under s 58(2) of the Succession Act 2006 (NSW) to bring a family provision claim.
Hmelnitsky J declined this too, finding:
- The defendant had not yet filed any substantive application.
- The defendant’s affidavit evidence was insufficient to assess the merit or eligibility of any future claim.
- The affidavit provided no coherent basis for eligibility under s 57, since she had moved out in 2020—long before the deceased’s death—and was therefore unlikely to qualify as a de facto partner or close personal relation.
- Limited evidence of financial dependency could not justify an extension of the period.
- Even assuming eligibility, the defendant had not shown factors warranting the claim under s 59(1)(b).
concluding that no “sufficient cause” had been shown to permit late filing.
Final Orders
The Court made the following orders:
- The notice of motion (1 August 2025) was dismissed.
- Both parties were directed to file submissions and evidence on costs by 31 October 2025.
- Any reply submissions on costs were to be filed by 7 November 2025.
Overall Summary:
The Court refused to set aside the 2024 resulting trust and costs orders and declined to grant an extension of time under the Succession Act. The plaintiff’s conduct was procedurally sound, the defendant’s delay was unjustified, and her medical and factual evidence were insufficiently persuasive to warrant reopening the case.