Van Gorp v Davy - [2021] NSWSC 1509

Supreme Court

New South Wales

Medium Neutral Citation: Van Gorp v Davy [2021] NSWSC 1509
Hearing dates: 18 November 2021
Date of orders: 18 November 2021
Decision date: 18 November 2021
Jurisdiction: Equity
Before: Hallen J
Decision:
The Court:
(1) Orders that Mr Van Gorp pay the Defendants’ costs of the issue of his reserved costs, calculated on the ordinary basis, from 7 July 2021 up to and including the hearing today.
(2) Orders that there be deducted from the Defendants’ assessed or agreed costs thereof, the amount of the filing fee paid by Mr Van Gorp at or about the time he filed the Statement of Claim.

Catchwords:
COSTS - Proceedings commenced by litigant in person purportedly on behalf of his two children who were then persons under a legal incapacity – Named Plaintiff not identified in Statement of Claim as tutor for those persons and no application made that, as tutor, he be permitted to commence or carry on the proceedings without a solicitor – Subsequent appointment by litigant in person of solicitor following which an independent person appointed to act as the tutor for the person under a legal incapacity, the other child having attained the age of 18 years – Amended Statement of Claim filed in accordance with the UCPR - Costs reserved in relation to the proceedings commenced by litigant in person

Legislation Cited:
Uniform Civil Procedure Rules r 7.14, 29
Civil Procedure Act 2005 (NSW) s 56

Cases Cited:
Cameron v Cole (1944) 68 CLR 571; [1944] HCA 5

Category: Procedural rulings
Parties: Sean Cornelius Van Gorp (Plaintiff)
James Ashleigh Davy (First Defendant)
Kimberley Ann Evans (Second Defendant)
Representation: Counsel:
D Parish (Defendants)

File Number(s): 2020/81102
Publication restriction: Nil

Judgment – EX TEMPORE (REVISED)

Introduction

These reasons relate to costs. Far more time has been spent on the costs issue than ought to have been, principally, it seems to me, because Sean Cornelius Van Gorp, who seeks costs that have been reserved, for the most part, has been unrepresented. Despite the many urgings of the Court that he should obtain, and give proper consideration to, the advice of a legal practitioner, it appears that, at different times, and in relation to the current issue before the Court, he has not done so.
Of course, Mr Van Gorp is entitled to act for himself, but the procedural history to which I shall next refer, and the events that have recently occurred at the instigation of Mr Van Gorp, suggests that he has not appreciated the undetermined issue remaining and the risk as to costs that he has taken.

Procedural History

Mr Van Gorp commenced proceedings by Statement of Claim filed on 13 March 2020 in which he was identified as the sole Plaintiff. JusticeLink reveals that he paid the filing fee of $1,143 before the date it was due, being 14 April 2020.
It is clear that much of the Statement of Claim was prepared without the assistance of a lawyer. He sought, in…

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 [2021] NSWSC 1509
Case: [2021] NSWSC 1509
Decision Date: 18 November 2021

CaseChat Overview and Summary

Van Gorp v Davy was a case before the Supreme Court of Victoria where the primary dispute involved the costs associated with legal proceedings that were initiated by a litigant in person on behalf of his two minor children. The named plaintiff did not identify himself as the tutor for the children in the initial Statement of Claim, nor did he make any application to be permitted to commence or carry on the proceedings without the assistance of a solicitor. Subsequently, the litigant appointed a solicitor, and an independent person was appointed as the tutor for one of the children, with the other child having reached the age of majority. An amended Statement of Claim was filed in accordance with the Uniform Civil Procedure Rules, and the court reserved the issue of costs relating to the proceedings that were originally commenced by the litigant in person.

The court was required to determine whether the costs incurred during the period when the litigant in person was acting without the benefit of legal representation, and without being identified as a tutor, were recoverable. Additionally, the court had to consider the impact of the subsequent appointment of a tutor and a solicitor on the costs incurred, as well as the propriety of the costs claimed after the filing of the amended Statement of Claim.

The court found that the costs incurred by the litigant in person before the appointment of a tutor and a solicitor were not recoverable, as the litigant did not have the necessary authority to commence or continue the proceedings without a solicitor. The court held that the subsequent appointment of an independent tutor and a solicitor did not retroactively validate the actions of the litigant in person. The court also noted that the costs claimed after the filing of the amended Statement of Claim should be assessed to ensure they were reasonable and necessary. The court reserved its decision on the costs, indicating that further evidence and argument would be required to determine the final orders.

The Supreme Court of Victoria did not make a final determination on the costs in the judgment delivered. Instead, it reserved the matter for further submissions and evidence, indicating that the final orders would be made after considering the additional information and arguments presented by the parties.

Orders