Ormsby v Van Selm - [2016] NZHC 228

NOTE: ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURTS ACT 1980, FOR FURTHER INFORMATION, PLEASE SEE LATION/RESTRICTIONS-ON-PUBLICATIONS

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2015-419-184 [2016] NZHC 228

UNDER The Family Protection Act 1955

BETWEEN

ALAN DE LISLE ORMSBY Appellant

AND

JAKE VAN SELM First Respondent

JACQUELINE ANN VAN SELM Second Respondent

JANINE ALEXANDRA ORMSBY Third Respondent

Hearing: 17 February 2016 (by way of teleconference)

Counsel:

D M O’Neill for appellant
D Mayall for second respondent
G M Spry for third respondent

Judgment:

22 February 2016

JUDGMENT OF KATZ J [Application for leave to appeal]

This judgment was delivered by me on 22 February 2016 at 2:00pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors: Koning Webster Lawyers, Papamoa Niemand Peebles Hoult, Hamilton Norris Ward McKinnon, Hamilton

ORMSBY v VAN SELM [2016] NZHC 228 [22 February 2016]

Introduction

[1] Alan Ormsby (“Alan”) is the son of the late Elizabeth Ormsby (“Mrs Ormsby”), who died in 2007. Alan seeks leave to appeal to the Court of Appeal against a decision I gave in the High Court at Auckland on 13 November
2015 regarding his mother’s estate (“Judgment”).1 The second and third respondents

(“Tia” and “Janine” respectively) are Mrs Ormsby’s two surviving daughters. They oppose their brother’s application for leave to appeal.2

[2] In her will Mrs Ormsby left Alan the family farm, comprising approximately

98 per cent of her estate. Tia and Janine brought a successful challenge under s 4 of the Family Protection Act 1955 in the Family Court, on the basis that the will did not provide for their proper maintenance and support.3 The Family Court Judge ordered that the farm be divided equally between Alan, Janine and Tia.

[3] Alan appealed to this Court on the issue of quantum only. He did not dispute that there had been an egregious breach of moral duty on the part of Mrs Ormsby. I allowed Alan’s appeal and decreased Janine and Tia’s shares in the family farm from
33 per cent to 30 per cent and 25 per cent respectively. Alan’s share of the estate was accordingly increased on appeal from 33 per cent to 45 per cent. In his view, however, the awards in favour of his sisters are still excessive and he seeks to have them reviewed by the Court of Appeal.

[4] At its heart, the issue raised by Alan’s application for leave to appeal is whether the Court of Appeal should consider whether the 30 per cent and 25 per cent shares in the farm property I awarded to Tia and Janine go beyond the minimum necessary to remedy Mrs Ormsby’s breach of moral duty to them.

Leave to appeal – legal principles

[5] The application for leave is made under s 15(3) of the Family Protection Act

1955 and s 67 of the Judicature Act 1908. The principles to be applied are well

1 Ormsby v Van Selm [2015] NZHC 2822.
2 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] NZHC 228
Case: [2016] NZHC 228
Decision Date: 22 February 2016

CaseChat Overview and Summary

Alan de Lisle Ormsby appeals the decision of Katz J in the High Court at Auckland, which ordered that his mother’s estate be divided equally between him and his sisters, Janine and Tia. Alan is dissatisfied with the quantum of the award to his sisters and seeks leave to appeal to the Court of Appeal. The sisters oppose the application for leave. The central issue in the appeal is whether the Court of Appeal should consider whether the quantum of the award to his sisters exceeds the minimum necessary to remedy the breach of moral duty. The court found that the award to the sisters was commensurate with comparable claims in cases where the conservative approach has been followed and that there was no need for further elaboration or clarification of these principles by the Court of Appeal. The court dismissed the application for leave to appeal. The respondents are entitled to costs on a 2B scale basis, given their successful opposition to the leave application. If costs cannot be agreed based on that indication, then leave is reserved to file memoranda. Any memorandum from the respondents is to be filed by 11 March 2016, with any response from the applicant to be filed by 18 March 2016.

Orders