Van Gorp v Davy [2022] NSWSC 39

Van Gorp v Davy [2022] NSWSC 39

The notice of motion was dismissed because Mr Van Gorp lacked standing to challenge consent orders made in concluded succession proceedings in which he made no personal claim and was not a party, and because his attempt to set aside or vary those final orders by notice of motion was procedurally inappropriate. In any event, no relevant irregularity, illegality, lack of good faith or properly particularised fraud was established; the complaints largely attacked earlier conduct of the proceedings or the merits of the approval of the settlement, and the material before Hallen J provided a proper basis to approve the settlement as in B's interests. Any family provision claim by Mr Van Gorp...

Jurisdiction
Australia
Judgment Date
01 February 2022
Procedural Posture
Procedural Ruling in Equity Concerning Succession Proceedings and Consent Orders / Notice of Motion Filed on 12 November 2021 Seeking to Set Aside or Vary Consent Orders Made on 2 June 2021 and Seeking Leave to Apply for Family Provision
Outcome
Application dismissed with costs.
Legal Topics
['setting Aside Consent Orders' 'variation of Final Orders' 'fraud, Misrepresentation or Suppression of Material Fact' 'standing' 'family Provision' 'approval of Settlement for a Person Under Legal Incapacity' 'costs']
['civil Procedure' 'succession' 'equity'] ['setting Aside Consent Orders' 'variation of Final Orders' 'fraud, Misrepresentation or Suppression of Material Fact' 'standing' 'family Provision' 'approval of Settlement for a Person Under Legal Incapacity' 'costs']

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Procedural Posture

Procedural Ruling in Equity Concerning Succession Proceedings and Consent Orders / Notice of Motion Filed on 12 November 2021 Seeking to Set Aside or Vary Consent Orders Made on 2 June 2021 and Seeking Leave to Apply for Family Provision

Legal Issues

  1. 1 ['Whether Mr Van Gorp had standing to seek to set aside or vary consent orders made in concluded succession proceedings to which he was not a party.' 'Whether the consent orders could be set aside under r 36.15(1) of the Uniform Civil Procedure Rules 2005 (NSW) as having been made irregularly, illegally or against good faith.' 'Whether the consent orders could be varied in concluded proceedings to appoint the NSW Trustee and Guardian or alter costs orders.' 'Whether allegations of fraud or lack of good faith could properly be advanced by notice of motion in concluded proceedings rather than by fresh proceedings with proper particulars.' 'Whether Mr Van Gorp could obtain leave by notice of motion to bring a family provision claim under s 70 of the Succession Act 2006 (NSW).']

Ratio Decidendi

The notice of motion was dismissed because Mr Van Gorp lacked standing to challenge consent orders made in concluded succession proceedings in which he made no personal claim and was not a party, and because his attempt to set aside or vary those final orders by notice of motion was procedurally inappropriate. In any event, no relevant irregularity, illegality, lack of good faith or properly particularised fraud was established; the complaints largely attacked earlier conduct of the proceedings or the merits of the approval of the settlement, and the material before Hallen J provided a proper basis to approve the settlement as in B's interests. Any family provision claim by Mr Van Gorp...

Court Disposition

Application dismissed with costs.

Orders

  • ['Dismiss the application filed by Mr Van Gorp on 12 November 2021, with costs.']