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Van Gorp v Davy

Van Gorp v Davy

Case [2022] NSWSC 39 1 February 2022

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Van Gorp v Davy [2022] NSWSC 39
Hearing dates: 2 December 2021
Decision date: 01 February 2022
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
1. Dismiss the application filed by Mr Van Gorp on 12 November 2021, with costs.

Catchwords:
JUDGMENTS AND ORDERS – Amending, varying and setting aside – Consent orders
JUDGMENTS AND ORDERS – Amending, varying and setting aside – Fraud, misrepresentation or suppressions of material fact
SUCCESSION – Family provision – Application for leave for former spouse of deceased to bring claim for provision from the deceased’s estate under Succession Act 2006 (NSW) Ch 3

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 76(4)
Guardianship of Infants Act 1916 (NSW), ss 13, 14, 19
Succession Act 2006 (NSW), ss 59, 60, 65, 70, 95
Uniform Civil Procedure Rules 2005 (NSW) rr 36.15, 36.16(3A), 36.17

Cases Cited:
Aktas v Westpac Banking Corporation Ltd (No 2) (2010) 241 CLR 570; [2010] HCA 47
Chand v Zurich Australia Insurance Ltd [2013] NSWSC 102
Clone Pty Ltd v Players Pty Ltd (In Liquidation) (Receivers & Managers Appointed) (2018) 264 CLR 165; [2018] HCA 12
K Sheridan v Colin Biggers & Paisley [2019] NSWSC 621
Kelly v Kelly [2019] NSWSC 994
Knight v F.P. Special Assets Ltd (1992) 174 CLR 178; [1992] HCA 28
Meehan v Glazier Holdings Pty Ltd (2002) 54 NSWLR 146; [2002] NSWCA 22
R v Burrell (2007) 175 A Crim R 21; [2007] NSWCCA 79
Smith v NSW Bar Association (1992) 176 CLR 256; [1992] HCA 36
Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691
Teoh v Hunters Hill Council (No 5) [2012] NSWCA 75
Van Gorp v Davy [2021] NSWSC 1509
Weber v Aquaqueen International Pty Ltd [2013] NSWSC 1181
Webster v Super Smart Strategies Pty Ltd [2017] NSWSC 531
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
Wentworth v Rogers (No 9) (1987) 8 NSWLR 388
Yu Ge (by her tutor Tao Ge) v River Island Clothing Pty Ltd (2002) Aust Torts Reports 81-638; [2002] NSWSC 28

Texts Cited:
AV Ritchie, Ritchie’s Uniform Civil Procedure New South Wales (LexisNexis Butterworths)

Category: Procedural rulings
Parties: Sean Cornelius Van Gorp (Applicant) (Self-represented)
James Ashleigh Davy (Respondent)
Representation:
Counsel:
D Parish (Respondent)
Solicitors:
Macphillamy’s Lawyers (Respondent)

File Number(s): 2020/00081102
Publication restriction: Nil

Judgment

HER HONOUR: Before me for hearing on 2 December 2021 was an application, referred from the Succession List, brought by notice of motion filed on 12 November 2021 by Mr Sean Cornelius Van Gorp, seeking various orders in relation to proceedings (initially commenced by Mr Van Gorp but to which he was ultimately not a party) which were determined by consent orders made on 2 June 2021 by Hallen J (the Consent Orders).
The history of the succession proceedings disposed of by the Consent Orders is set out in a costs decision of Hallen J (see Van Gorp v Davy [2021] NSWSC 1509) but it will…

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 [2022] NSWSC 39
Case: [2022] NSWSC 39
Decision Date: 01 February 2022

CaseChat Overview and Summary

Van Gorp v Davy was a case heard by the Supreme Court of New South Wales. The dispute arose from an application by the former spouse of the deceased, Mr. Davy, to seek provision from the estate of the deceased under the Succession Act 2006 (NSW). The applicant, Ms. Van Gorp, had been married to Mr. Davy and subsequently divorced. She sought to claim provision from his estate, arguing that she had been inadequately provided for under the terms of the divorce settlement and the will of Mr. Davy.

The legal issues before the court included whether Ms. Van Gorp had the standing to bring such a claim under the Succession Act, and whether there was evidence of fraud, misrepresentation, or suppression of material facts that would warrant the amendment or variation of existing orders. Additionally, the court had to consider whether there were exceptional circumstances that justified allowing Ms. Van Gorp to bring her claim, given that she was no longer the spouse of the deceased at the time of his death.

The court determined that Ms. Van Gorp did not have standing to bring a claim for provision from the deceased’s estate under the Succession Act, as she was no longer his spouse at the time of his death. The court also found that there was no evidence of fraud, misrepresentation, or suppression of material facts that would warrant the amendment or variation of existing orders. The judge held that the application for leave to bring the claim was not in the interests of justice, and therefore, the application was dismissed. The court emphasized that the decision was based on the statutory requirements of the Succession Act and the absence of exceptional circumstances that would justify Ms. Van Gorp's claim.

Orders