Van Selm v Van Selm - [2014] NZHC 1993

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2014-419-000170 [2014] NZHC 1993

BETWEEN
JACQUELINE ANNE VAN SELM AND

PUAWAI ORMSBY as trustees of the estate of JACK ORMSBY

Appellants

AND

JAKE VAN SELM as trustee of the estate of ELIZABETH PARETUARANG ORMSBYI

First Respondent

ALAN ORMSBY Second Respondent

Hearing: 21 August 2014

Counsel:

RL Scott for Appellants
JP Koning for Respondents

Judgment:

22 August 2014

JUDGMENT OF FOGARTY J

This judgment was delivered by me on 22 August 2014 at 4.30 p.m., pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors: Norris Ward McKinnon, Hamilton
Koning Webster Lawyers, Papamoa

VAN SELM AND ORMSBY v VAN SELM [2014] NZHC 1993 [22 August 2014]

Introduction

[1] The appellants have applied to extend time for paying security for costs or, in the alternative, for leave to appeal out of time. The second respondent opposes both applications.

[2] The appellants have appealed the costs judgment of Judge RH Riddell delivered in the Family Court at Hamilton on 2 April 2014. This decision arose out of an earlier substantial decision on cross-claims under the Property Relationships Act 1976.

[3] Elizabeth and Jack Ormsby were married for about 50 years. Elizabeth had inherited about half of the farm and acquired the other half by way of family dealings. The couple had worked on the farm for many years but also, in the latter years of their marriage, left the farm to reside in Te Kuiti. As a result, there was no farm homestead issue.

[4] The farm issue as to relationship property centred upon the acquisition of the second half of the farm. Four other property issues were conceded at the start of the substantial hearing when it was agreed that the following property would be shared equally between the parties:

(a) Fonterra shares

(b) King Country Energy shares (c) The family home at Te Kuiti (d) Ms Ormsby’s bank account

[5] Judge Riddell took the sum of $270,000 as being the amount awarded to the applicant (appellants in this proceeding because of the hearing outcome). Judge Riddell held that, that aside, the substantial part of the hearing concerned the applicant’s claim for $1,128,333 under ss 8 and 9 of the Act and a further claim of
$1,128,333 under s 17 of the Act. The claims under ss 8 and 9 were successfully

defended. The claim under s 17 was successful but only to a very limited extent and an adjustment of $50,000 was awarded.

[6] Judge Riddell went on to conclude that the second respondent, Elizabeth and Jack’s son, Alan, was substantially successful in these proceedings and therefore considered a costs award in his favour was appropriate. That he was entitled to costs calculated on a 3C basis in the sum of $67,850, plus disbursements as fixed by the Registrar.

[7] The estate of the late Jack Ormsby filed an appeal against the order for costs arguing that costs should lie where they fall. The pleadings do not specifically…

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 Van Selm

Details

AGLC: Van Selm v Van Selm [2014] NZHC 1993
Case: [2014] NZHC 1993
Decision Date: 22 August 2014

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Van Selm v Van Selm involved the trustees of the estate of Jack Ormsby, represented by Jacqueline Anne Van Selm and Puawai Ormsby, as appellants, and Jake Van Selm, as trustee of the estate of Elizabeth Paretuarangu Ormsby, as the first respondent. The second respondent was Alan Ormsby. The case originated from an earlier Family Court decision concerning cross-claims under the Property Relationships Act 1976. The core issue in the appeal was the appropriateness of the costs awarded by Judge RH Riddell in the Family Court. The appellants argued that costs should lie where they fall, as they were successful in certain claims, while the second respondent contended that the costs order was appropriate given their substantial success in the proceedings.

The legal issues before the court involved the interpretation and application of the costs provisions under the Property Relationships Act 1976, specifically focusing on whether the costs awarded by the Family Court judge were justified and if there were any grounds to grant the appellants leave to appeal out of time due to the late payment of security for costs. The court had to consider whether the appellants had a satisfactory explanation for the delay and whether the proposed appeal had merit.

The High Court, after examining the circumstances and the submissions made by both parties, concluded that while the appellants did not pay the security for costs within the stipulated time, there were exceptional circumstances that warranted granting leave to appeal out of time. The court found that the appellants had a satisfactory explanation for the delay and that there was an arguable appeal point regarding the appropriateness of the costs awarded. The court held that the appeal was not unmeritorious and that granting leave to appeal would meet the overall interests of justice. Therefore, the court granted the leave to appeal, with the condition that the security for costs be paid within five working days of the judgment's release. The court also ruled that costs lie where they fall.

Orders