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 respondentJudgment:
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…
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