Van Selm v Ormsby - [2018] NZHC 2820

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2018-419-9

[2018] NZHC 2820

IN THE MATTER of an application for an order to authorise dealings with trust property

BETWEEN

JACOB VAN SELM

Plaintiff

AND

ALAN DE LISLE ORMSBY

First Defendant

JANINE ALEXANDRA ORMSBY
Second Defendant

JACQUELINE ANN VAN SELM

Third Defendant

Hearing:
25 October 2018 (further submissions received on 29 October

2018)

Appearances:

K R Lydiard for Plaintiff

J P Koning for First Defendant

G M Spry, M Hutchison and E R Anderson for Second Defendant K L Hoult for Third Defendant

Judgment:

31 October 2018

INTERIM JUDGMENT OF LANG J

[on application for directions under ss 64 and 66 of the Trustee Act 1956]

This judgment was delivered by me on 31 October 2018 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

VAN SELM v ORMSBY [2018] NZHC 2820 [31 October 2018]

[1] This proceeding concerns the estate of the late Elizabeth Ormsby, who died in February 2007. Mrs Ormsby was survived by her three children, Alan, Janine and Jacqueline (known as Tia). They are the defendants in this proceeding. The plaintiff, Mr van Selm, is married to Tia and is the sole executor of Mrs Ormsby’s last will.

[2] In her last will Mrs Ormsby left her residuary estate to Alan, Janine and Tia in equal shares. However, she left the family farm near Otorohanga to Alan. This comprised the bulk of her estate in terms of monetary value.

[3] The fact that Alan inherited the farm prompted Tia and Janine to issue proceedings in the Family Court seeking further provision from their mother’s estate under the Family Protection Act 1955. The Family Court upheld their claims and vested shares in the farm in them.1 Alan appealed to this Court, and succeeded in having the shares awarded to his sisters reduced.2 Subsequent applications by Alan for leave to appeal to the Court of Appeal against this Court’s decision were refused.3 As a result, the farm is now to be vested in Alan as to 45 per cent, Janine as to 30 per cent and Tia as to 25 per cent.

[4] Mr van Selm has filed the present application because he faces a dilemma. The administration of the estate has now reached the point where he would ordinarily transfer the farm to the defendants in the shares ordered by this Court. However, the litigation in the Family Court and this Court has led to several awards of costs being made in favour of Alan, Janine and Tia. Alan has been awarded $15,452.29, Janine has been awarded $59,049 together with disbursements and Tia has been awarded the same amount. The courts have directed these awards to be paid from the estate.4 Excluding accrued interest, the estate now owes a total sum of approximately
$150,000 by way of costs. Interest will continue to accrue until the costs are paid.

[5] At present, the estate holds…

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 Selm v Ormsby

Details

AGLC: Van Selm v Ormsby [2018] NZHC 2820
Case: [2018] NZHC 2820
Decision Date: 31 October 2018

CaseChat Overview and Summary

This proceeding involves the estate of the late Elizabeth Ormsby, with her son Jacob van Selm as the sole executor. The defendants are her three children, Alan, Janine, and Jacqueline. Van Selm has filed an application seeking directions to sell the family farm to pay outstanding court costs. The defendants have opposed the application and Alan has filed a counterclaim seeking an order vesting the farm in the defendants in the shares ordered by the Court. The legal issues before the Court were whether the Court had jurisdiction to make orders under ss 64 and 66 of the Trustee Act 1956 and whether the sale of the farm was expedient in the management or administration of the estate. The Court held that it had jurisdiction to make orders under s 64 of the Act. The Court also held that the sale of the farm would not be expedient in the management or administration of the estate as other assets were available to pay the outstanding costs. The Court declined to make an order for the sale of the farm but reserved leave for van Selm to renew his application if he discovered it would not be possible to sell sufficient Fonterra shares to pay the outstanding court costs on or after 31 May 2019. The Court declined to make an order in relation to Alan's counterclaim. Costs were reserved pending further enquiries and agreement by the parties.

Orders