Ormsby v van Selm - [2016] NZCA 323

IN THE COURT OF APPEAL OF NEW ZEALAND

CA122/2016
[2016] NZCA 323

BETWEEN	ALAN DE LISLE ORMSBY Applicant
AND	JAKE VAN SELM First Respondent
AND	JACQUELINE ANN VAN SELM Second Respondent
AND	JANINE ALEXANDRA ORMSBY Third Respondent

Hearing:	16 June 2016
Court:	Ellen France P, Randerson and Winkelmann JJ
Counsel:	D M OʼNeill for Applicant K L Hoult and D W Mayall for Second Respondent G M Spry and R L Revell for Third Respondent
Judgment:	11 July 2016 at 9.30 am

JUDGMENT OF THE COURT

AThe application for leave to appeal is declined.
BThe applicant must pay the second and third respondents costs for a standard application for leave on a band A basis and usual disbursements.

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REASONS OF THE COURT

(Given by Ellen France P)

A family protection claim

The applicant, Alan Ormsby (Alan), and the second and third respondents (Tia and Janine respectively) are the surviving children of the late Elizabeth Ormsby who died in 2007. Under her will, Mrs Ormsby left Alan the family farm. The farm was valued at the relevant time at $2,330,000 and comprised the bulk of her estate.[1] Janine and Tia brought a successful challenge under s 4 of the Family Protection Act 1955 in the Family Court on the grounds Mrs Ormsby’s will did not provide for their proper maintenance and support. Judge Riddell ordered that the will be altered so that the farm vested in Alan, Janine and Tia in equal shares.[2]
[1]The residue of the estate was in the order of $235,000.
[2]Van Selm v Van Selm [2015] NZFC 3242, [2015] NZFLR 693 [the Family Court judgment].
Alan appealed to the High Court on the issue of quantum. His appeal was allowed and Janine and Tia’s shares in the farm were reduced from 33 per cent to 30 per cent and 25 per cent respectively.[3] Alan unsuccessfully sought leave to appeal that decision from the High Court to this Court.[4] He now seeks leave to appeal from this Court.
[3]Ormsby v Van Selm [2015] NZHC 2822 [the High Court judgment].
[4]Ormsby v Van Selm [2016] NZHC 228 [the leave judgment].
The primary issue Alan seeks to raise in the proposed appeal is whether Katz J’s award went beyond the minimum necessary to remedy Mrs Ormsby’s breach of moral duty to Janine and Tia. In particular, Alan wishes to argue the Judge incorrectly assessed what was necessary by reference to where Janine and Tia lived and the reasonable costs of providing accommodation in those two geographical locations.
Janine and Tia oppose leave on the basis the proposed appeal does not meet the test for leave as set out in Waller v Hider.[5] Namely, that the appeal:[6]
(a)raises some question of law or fact capable of bona fide and serious argument; and
(b)involves some interest, public or private, of sufficient importance to outweigh the cost and delay of a further appeal.

Our evaluation

[5]Waller v Hider [1998] 1 NZLR 412 (CA). The first respondent, the…

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 Ormsby v van Selm

Details

AGLC: Ormsby v van Selm [2016] NZCA 323
Case: [2016] NZCA 323
Decision Date: 11 July 2016 at 9.30 am

CaseChat Overview and Summary

The appeal was brought by Alan de Lisle Ormsby, who was the sole beneficiary of his mother’s will, against his sisters, Janine Alexandra Ormsby and Jacqueline Ann van Selm, who challenged the will under s 4 of the Family Protection Act 1955. The sisters successfully argued that the will did not provide for their proper maintenance and support. The Family Court ruled in favour of the sisters and ordered that the will be altered so that the farm vested in Alan, Janine and Tia in equal shares. Alan appealed the High Court’s decision to reduce the shares of the sisters from 33% to 30% and 25% respectively. He now seeks leave to appeal from the Court of Appeal. The primary issue Alan seeks to raise in the proposed appeal is whether the Judge incorrectly assessed what was necessary by reference to where Janine and Tia lived and the reasonable costs of providing accommodation in those two geographical locations.

The court found that the appeal did not raise any question of law or fact capable of bona fide and serious argument. The Judge applied the well-established principles in assessing quantum and did not treat the costs of providing accommodation in the areas in which Janine and Tia lived as a proxy for considering what was necessary to remedy Mrs Ormsby’s breach of moral duty. The court found that the approach adopted was consistent with that taken in this Court’s decision in Fisher v Kirby. The appeal was dismissed and the applicant was ordered to pay the second and third respondents costs for a standard application for leave on a band A basis and usual disbursements.

Orders