Van Gorp v Davy - [2023] NSWCA 43

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Van Gorp v Davy [2023] NSWCA 43
Hearing dates: 13 March 2023
Date of orders: 13 March 2023
Decision date: 13 March 2023
Before: Leeming JA at [1] and [19]
Kirk JA at [2]
Decision:
Summons seeking leave to appeal is dismissed with costs.

Catchwords:
APPEAL — Leave to appeal — Abuse of process — appeal to the High Court dismissed — Fresh proceedings involving the same parties, the same issues on essentially the same grounds — Circumvent proper appellate processes — Unjustifiably oppressive to the respondents — Brings the administration of justice into disrepute — No issue of principle or question of general public importance — Leave should be dismissed with costs
EQUITY — General principles and maxims — Equity would attend to the real justice of the case — Equity will not intervene on behalf of someone who lacks standing

Legislation Cited:
Succession Act 2006 (NSW)

Cases Cited:
Davy v Van Gorp [2022] NSWSC 466
Jenyns v Public Curator (Qld) (1953) 90 CLR 113; [1953] HCA 2
Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28
UBS AG v Tyne (2018) 265 CLR 77; [2018] HCA 45
Van Gorp v Davy [2021] NSWSC 1509
Van Gorp v Davy [2022] NSWCA 117
Van Gorp v Davy [2022] NSWSC 1167
Van Gorp v Davy [2022] NSWSC 39
Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77

Category: Procedural rulings
Parties: Sean Cornelius Van Gorp (Applicant)
James Ashleigh Davy (First Respondent)
Kimberley Ann Evans (Second Respondent)
Representation:
Advocates:

Sean Cornelius Van Gorp (in person)
D Parish (First and Second Respondents)

Solicitors:
Macphillamy’s Lawyers (First and Second Respondents)

File Number(s): 2022/286642
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity

Citation:

[2022] NSWSC 1167

Date of Decision:

30 August 2022

Before:

Lindsay J

File Number(s):

2022/00250244

HEADNOTE

[This headnote is not to be read as part of the judgment]

In 2020 the applicant commenced proceedings in the Supreme Court relating to the will and estate of his former wife. In time the applicant consented to be replaced as the tutor of his younger daughter, and was removed as a party from the case. The proceedings were ultimately resolved by consent orders made in June 2021. The applicant subsequently sought to set aside the consent orders for fraud. This application was dismissed by Ward CJ in Eq and the Court of Appeal refused leave to appeal from that decision. Special leave to appeal to the High Court was sought and refused. After the decision of Ward CJ in Eq, Peden J made an order restraining Mr Van Gorp from bringing claims against the executors without the leave of the Supreme Court until he had satisfied certain costs orders.

The applicant subsequently filed proceedings in the Supreme Court seeking leave to file a statement of claim against the respondents. In substance the statement of claim…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Van Gorp v Davy

Details

AGLC: Van Gorp v Davy [2023] NSWCA 43
Case: [2023] NSWCA 43
Decision Date: 13 March 2023

CaseChat Overview and Summary

The parties to this proceeding were Van Gorp (appellant) and Davy (respondents). The appellant sought leave to appeal to the Court of Appeal from a decision of the primary judge. The dispute concerned fresh proceedings initiated by the appellant, which the respondents argued constituted an abuse of process as they involved the same parties and essentially the same issues and grounds as a previous appeal to the High Court that had been dismissed.

The Court of Appeal was required to determine whether the appellant's fresh proceedings were an abuse of process, whether leave to appeal should be granted in circumstances where the proposed appeal raised no issue of principle or question of general public importance, and whether the proceedings were unjustifiably oppressive to the respondents and brought the administration of justice into disrepute.

The Court reasoned that allowing the appellant to pursue the fresh proceedings would circumvent the proper appellate processes and was unjustifiably oppressive to the respondents. The Court applied the principle that equity would attend to the real justice of the case and would not intervene on behalf of someone who lacked standing or sought to abuse the court's processes. Given that the appeal raised no issue of principle or question of general public importance, and the proceedings were an abuse of process, the Court found no basis for granting leave to appeal.

Consequently, the summons seeking leave to appeal was dismissed with costs.

Orders

Orders of the court

Summons seeking leave to appeal is dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Van Gorp v Davy [2023] NSWCA 43
Hearing dates:	13 March 2023
Date of orders:	13 March 2023
Decision date:	13 March 2023
Before:	Leeming JA at [1] and [19] Kirk JA at [2]
Decision:	Summons seeking leave to appeal is dismissed with costs.
Catchwords:	APPEAL — Leave to appeal — Abuse of process — appeal to the High Court dismissed — Fresh proceedings involving the same parties, the same issues on essentially the same grounds — Circumvent proper appellate processes — Unjustifiably oppressive to the respondents — Brings the administration of justice into disrepute — No issue of principle or question of general public importance — Leave should be dismissed with costs EQUITY — General principles and maxims — Equity would attend to the real justice of the case — Equity will not intervene on behalf of someone who lacks standing
Legislation Cited:	Succession Act 2006 (NSW)
Cases Cited:	Davy v Van Gorp [2022] NSWSC 466 Jenyns v Public Curator (Qld) (1953) 90 CLR 113; [1953] HCA 2 Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 UBS AG v Tyne (2018) 265 CLR 77; [2018] HCA 45 Van Gorp v Davy [2021] NSWSC 1509 Van Gorp v Davy [2022] NSWCA 117 Van Gorp v Davy [2022] NSWSC 1167 Van Gorp v Davy [2022] NSWSC 39 Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77
Category:	Procedural rulings
Parties:	Sean Cornelius Van Gorp (Applicant) James Ashleigh Davy (First Respondent) Kimberley Ann Evans (Second Respondent)
Representation:	Advocates: Sean Cornelius Van Gorp (in person) D Parish (First and Second Respondents) Solicitors: Macphillamy’s Lawyers (First and Second Respondents)
File Number(s):	2022/286642
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Citation: [2022] NSWSC 1167 Date of Decision: 30 August 2022 Before: Lindsay J File Number(s): 2022/00250244