Van Gorp v Davy - [2018] NSWSC 1467

Supreme Court

New South Wales

Medium Neutral Citation: Van Gorp v Davy [2018] NSWSC 1467
Hearing dates: 27 September 2018
Date of orders: 27 September 2018
Decision date: 27 September 2018
Jurisdiction: Equity
Before: Kunc J
Decision:
Amendment application refused; statement of claim dismissed; plaintiff to pay defendant’s costs

Catchwords: PROCEDURE - Miscellaneous procedural matters - Other matters – Whether proposed amendment futile – Whether statement of claim discloses cause of action – No issue of principle
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW)
Family Law Act 1975 (Cth)
Cases Cited: Van Gorp v Davy [2017] NSWCA 167
Category: Procedural and other rulings
Parties: Sean Cornelius Van Gorp (Plaintiff)
Kate Louise Davy (Defendant)
Representation:
Counsel:
S Van Gorp (in person)
D O’Sullivan (Defendant)

Solicitors:
Macphillamy’s Lawyers (Defendant)

File Number(s): 2018/227461
Publication restriction: No

EX TEMPORE Judgment (REVISED)

The plaintiff (Mr Van Gorp) and the defendant (Ms Davy) were once married. These proceedings are the next round in a very long series of litigation conducted across a number of courts by Mr Van Gorp against Ms Davy in relation to events which occurred during their marriage.
By statement of claim filed on 24 July 2018, Mr Van Gorp seeks:

“1   Liquidated claim $425,000 plus costs.
2   In the alternative, an order that Ms Davy sell her one-third interest in the Ellendon and King Streets Bungendore industrial properties and pay me 85% of the proceeds.
3   The costs orders made on 15 March 2015 AND 17 August 2017 in Local Court proceeding 2014/00175601 be set aside.”

After Ms Davy filed her defence, Mr Van Gorp decided to amend his statement of claim. The proceedings are before me today to hear two notices of motion. The first is brought by Mr Van Gorp for leave to amend his statement of claim. The other notice of motion is brought by Ms Davy and seeks:

“1 An order staying these proceedings pursuant to s 8(7) of the Vexatious Proceedings Act 2008 (NSW).
2 An order prohibiting Sean Cornelius Van Gorp, without leave of the Court, from commencing any proceedings in New South Wales against Kate Louise Davy pursuant to s 8(7)(b) of the Vexatious Proceedings Act 2008 (NSW).
3 In the alternative to order 1 above, an order pursuant to Rule 14.28 that the Statement of Claim be struck out.
4 An order that the plaintiff pay the defendant’s costs of and incidental to these proceedings as agreed or assessed.”

As the argument developed this morning, Ms Davy ultimately did not press for the relief in paragraphs 1 and 2 of her motion. She pressed only for orders that the statement of claim be struck out with costs.
The parties agreed that I should first deal with Mr Van Gorp's amendment application before turning to Ms Davy's notice of motion. That is how the hearing proceeded.
Mr Van Gorp appeared for himself. Ms Davy was represented by Mr D O'Sullivan of Counsel.
To understand why the Court has decided that the amendment application should…

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 [2018] NSWSC 1467
Case: [2018] NSWSC 1467
Decision Date: 27 September 2018

CaseChat Overview and Summary

In the matter of Van Gorp v Davy, the parties were Van Gorp, the plaintiff, and Davy, the defendant. The nature of the dispute was procedural, involving the sufficiency of the plaintiff's statement of claim. The case was heard in the Federal Court of Australia. The plaintiff sought to amend the statement of claim, which the defendant opposed on the grounds of futility and the lack of a disclosed cause of action.

The legal issues before the court were whether the proposed amendment to the statement of claim was futile and whether the statement of claim, as originally filed, disclosed a cause of action. The court was required to determine whether the amendment would have any substantial effect on the proceedings and whether the initial statement of claim met the necessary legal standards.

The court examined the proposed amendment and concluded that it would be futile, as it did not substantially alter the allegations or the legal basis of the claim. Furthermore, the court held that the statement of claim, as originally filed, did not disclose a cause of action. Consequently, the court dismissed the plaintiff's application to amend the statement of claim and determined that the case should proceed based on the original pleadings. The court did not find any issues of principle that would require further consideration or appeal.

Orders