Van Gorp v Davy

[2022] NSWCA 117

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Van Gorp v Davy [2022] NSWCA 117

Hearing dates:

5 July 2022

Date of orders:

6 July 2022

Decision date:

06 July 2022

Before:

Meagher JA, Basten AJA

Decision:

(1) Dismiss summons seeking leave to appeal.

(2) Dismiss notice of motion filed 20 June 2022.

(3) Order the applicant to pay the respondents’ costs of the proceedings.

Catchwords:

CIVIL PROCEDURE – leave to appeal – standing – application to set aside consent orders in Court below – applicant not a party to proceedings below – right to bring own proceedings not a sufficient basis to attract a right of appeal

Legislation Cited:

Guardianship of Infants Act 1916 (NSW), ss 13, 17

Supreme Court Act 1970 (NSW), s 101(2)(e)

Succession Act 2006 (NSW), s 70

Uniform Civil Procedure Rules 2005 (NSW), rr 7.14, 36.15(1), 36.16, 51.4

Cases Cited:

J v Lieschke (1987) 162 CLR 447; [1987] HCA 4

Twist v Randwick Municipal Council (1976) 136 CLR 106; [1976] HCA 58

Category:

Principal judgment

Parties:

Sean Cornelius Van Gorp (Applicant)
James Ashleigh Davy (First Respondent)
Kimberley Evans (Second Respondent)

Representation:

Counsel:

D Parish (Respondents)

Solicitors:

Applicant in person
Macphillamy’s Lawyers (Respondents)

File Number(s):

2022/32972

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Equity Division

Citation:

[2022] NSWSC 39

Date of Decision:

1 February 2022

Before:

Ward CJ in Eq

File Number(s):

2020/00081102

judgment

1. THE COURT: The applicant (Mr Van Gorp) seeks leave to appeal from orders made by Ward CJ in Eq (as her Honour then was) dismissing his application to set aside or vary consent orders made by Hallen J on 2 June 2021. Those orders gave effect to the final settlement of a family provision claim. Those proceedings concerned the 2018 will and estate of Mr Van Gorp’s former wife, Kate Davy, who had died in July 2019.

2. At the time the proceedings were resolved the parties were Mr Van Gorp’s younger daughter, referred to as “B”, as plaintiff, by her tutor Ms McIntyre, a solicitor, and the executors of his former wife’s estate, James Davy and Kimberley Evans. Mr Van Gorp had commenced those proceedings in his name in March 2020. When they were first mentioned before Hallen J on 6 April 2020 he acknowledged that he made no claim for himself to any interest in his former wife’s estate and that he was not seeking any relief for himself. Rather he maintained he was seeking relief on behalf of his two daughters, both of whom were minors at the time the proceedings were commenced and accordingly under a legal incapacity. That continued to be the position in relation to the younger daughter, B, at the time the challenged consent orders were made on 2 June 2021; whereas the elder daughter, referred to as “A", had turned 18 in May 2020.

3. The consent orders made and matters noted by Hallen J in June 2021 were:

1 Orders that the settlement of the…