Van Gorp v Davy

[2022] NSWSC 1167

Supreme Court

New South Wales

Medium Neutral Citation:	Van Gorp v Davy [2022] NSWSC 1167
Hearing dates:	30 August 2022
Date of orders:	30 August 2022
Decision date:	30 August 2022
Jurisdiction:	Equity
Before:	Lindsay J
Decision:	Order that the plaintiff’s proceedings to be dismissed with costs.
Catchwords:	EQUITY — Trusts and trustees — Beneficiaries — Standing to bring proceedings — Parent of adult children — No standing to interfere with administration of deceased estate of former wife on children’s behalf
Category:	Principal judgment
Parties:	Plaintiff: Sean Cornelius Van Gorp, in person Defendants: James Ashleigh Davy and Kimberley Ann Evans
Representation:	Counsel: Plaintiff: Sean Cornelius Van Gorp, in person Defendants: D Parish Solicitors: Plaintiff: Sean Cornelius Van Gorp, in person Defendants: Macphillamy’s Lawyers
File Number(s):	2022/00250244

EX TEMPORE Judgment

1. HIS HONOUR: By a summons filed 23 August 2022 the plaintiff seeks orders relating to proceedings arising out of the death of his former wife, Kate Louise Davy (the deceased) on 17 July 2019.

2. The marriage between the plaintiff and the deceased was dissolved well before the deceased's death.

3. There were two children of the marriage, both daughters:

1. Halle, born in May 2002; and,

2. Tamsin, born in August 2004.

4. Both children are now adults.

5. The deceased died on 17 July 2019, leaving a will dated 13 November 2018, probate of which was granted on 14 January 2021 (in proceedings 2020/00185376) to the defendants as the executors named in the will.

6. The only two beneficiaries named in the will were the deceased's daughters.

7. On 2 June 2021, with the consent of the parties, Hallen J made orders disposing of a claim for family provision relief under chapter 3 of the Succession Act 2006, made (in proceedings numbered 2020/00081102) in the name of Tamsin by a tutor (Anthea McIntyre) appointed by his Honour on 13 August 2020.

8. The only persons beneficially entitled to the deceased's estate, before and after the orders of 2 June 2021, were, and are, her two daughters.

9. At no material time has the plaintiff had an interest in the estate of the deceased. He was divorced from her at the time of her death. He was not named as a beneficiary (nor as an executor) in her will.

10. The plaintiff made no application on his own account for a family provision order in relation to the estate of the deceased. He has on more than one occasion (including today) disclaimed any intention to do so. In any event, the time for any family provision application that might have been made by him to be filed expired in July 2020.

11. The proceedings that culminated in the family provision orders of 2 June 2021 were commenced, irregularly, by the plaintiff on 13 March 2021, asserting a personal right to represent Tamsin as a parent.

12. The proceedings were regularised by Hallen J's appointment of Ms McIntyre as Tamsin's tutor.

13. The plaintiff has, since the appointment of Ms McIntyre as a tutor, and more especially since the orders of 2 June 2021 were made, protested that, in his view, Tamsin has been unfairly dealt with. He has gone so far as to suggest that the orders of 2 June 2021 are tainted by “fraud” because, he contends, he did not fully consent to the appointment of Ms McIntyre as a tutor, or at least he was misled by Ms McIntyre, and perhaps others, about the way the family provision proceedings would be conducted.

14. The plaintiff has been involved in skirmishing with the defendants since at least 18 December 2020 when Hallen J, sitting in the Succession List, made an order for costs affecting him. There have been four judgments published on Caselaw.

15. On 18 November 2021 Hallen J published reasons as [2021] NSWSC 1509. On 1 February 2022 Ward CJ in Eq published reasons as [2022] NSWSC 39. On 19 April 2022 Peden J published reasons as [2022] NSWSC 466. And on 6 July 2022 the Court of Appeal (constituted by Meagher JA and Basten AJA) published reasons as [2022] NSWCA 117.

16. It is not necessary for the purpose of these proceedings to set out in full detail the course of the proceedings. The story of the plaintiff's engagement with the defendants can be seen set out, particularly, in the reasons for judgment of Ward CJ in Eq and the Court of Appeal.

17. On the return of the plaintiff's summons filed 23 September 2022, he sought leave to file a statement of claim in the form annexed to the summons dated 20 July 2022 and filed on 21 July 2022. An application for leave was perceived to be necessary because of orders made by Peden J on 19 April 2022.

18. I note in passing that the plaintiff concedes that he has not satisfied any of the costs orders that have been made against him to date, either in the Court of Appeal proceedings or in the family provision proceedings.

19. The plaintiff has provided to the Court today written submissions which have been marked for identification MFI P1. With some elaboration, those submissions repeat submissions earlier made, particularly, to Ward CJ in Eq and the Court of Appeal.

20. The fundamental problem with the plaintiff's summons is that he lacks standing to claim the relief that he claims. He has no interest in the estate of the deceased of any nature. Both his daughters, most recently Tamsin, have attained their majority. Although he may have a social interest in their welfare, he has no legal interest sufficient to confer upon him standing to interfere with the administration of the deceased estate of his former wife.

21. He invites the Court to permit his summons, and his draft statement of claim, to proceed on the basis that, as a parent (albeit of adult children), he has sufficient standing to seek to have the family provision order of 2 June 2021 set aside or varied, notwithstanding the fact that neither of his children is a party to the proceedings.

22. In the absence of standing to make the claims for relief that he makes in the summons (and the proposed statement of claim), it is not to the point for the plaintiff to say that he has been denied procedural fairness. Probate litigation (and, by extension, family provision litigation) is interest litigation, in the sense that, to have standing to participate in proceedings of that nature, it is necessary to have an interest in the outcome of the proceedings and, by implication, in administration of an estate. The plaintiff has no such interest in the estate of the deceased.

23. In these circumstances I am satisfied that the plaintiff's summons should be dismissed.

24. If his statement of claim were to be filed, it too would face dismissal for a want of standing.

25. The plaintiff’s repetitive claims challenging the orders of 2 June 2021 have been dealt with in detail by Ward CJ in Eq and in the Court of Appeal's dismissal of his application for leave to appeal from her Honour's judgment.

26. The plaintiff's persistence in maintaining his challenge, despite adverse rulings, constitutes an abuse of the processes of the Court which might, independently, of findings about standing, justify dismissal of the present proceedings. It is not necessary to dwell on that possibility in circumstances in which the plaintiff has no standing to claim the relief sought in the summons.

27. For these reasons I order that the summons be dismissed (and that, for more abundant caution, the statement of claim purportedly filed by the plaintiff on 21 July 2022 also be dismissed) with costs.

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Decision last updated: 31 August 2022