Van Gorp v Davy

These reasons relate to costs. Far more time has been spent on the costs issue than ought to have been, principally, it seems to me, because Sean Cornelius Van Gorp, who seeks costs that have been reserved, for the most part, has been unrepresented. Despite the many urgings of the Court that he should obtain, and give proper consideration to, the advice of a legal practitioner, it appears that, at different times, and in relation to the current issue before the Court, he has not done so.

Of course, Mr Van Gorp is entitled to act for himself, but the procedural history to which I shall next refer, and the events that have recently occurred at the instigation of Mr Van Gorp, suggests that he has not appreciated the undetermined issue remaining and the risk as to costs that he has taken.

Mr Van Gorp commenced proceedings by Statement of Claim filed on 13 March 2020 in which he was identified as the sole Plaintiff. JusticeLink reveals that he paid the filing fee of $1,143 before the date it was due, being 14 April 2020.

It is clear that much of the Statement of Claim was prepared without the assistance of a lawyer. He sought, in Paragraph 1 of the relief claimed, that the Will made on 13 November 2018 (the 2018 Will) of Kate Louise Davy (the deceased), his former wife, be “declared to be invalid due to the Will not being the last Will of the deceased, the testator lacked testamentary capacity at the time the Will was signed, under undue influence and should not be admitted to probate”. In Paragraph 2, by way of alternative relief, he sought “on behalf of each of my daughters, Halle and Tamsin Van Gorp … orders for family provision” out of the estate of the deceased and, in Paragraph 3, that the NSW Trustee and Guardian be appointed trustee and executor of the deceased’s estate.

The two Defendants named in the Statement of Claim were James Ashleigh Davy and Kimberley Ann Evans, the executors named in the 2018 Will.

The pleading that followed the relief claimed was, at least in part, discursive. Whilst it was divided into paragraphs, and each matter, so far as convenient, was put in a separate paragraph, and the paragraphs were numbered consecutively, it did not contain only a summary of the material facts on which he relied, but included some of the evidence by which those facts were said to be proved. Furthermore, despite having asserted that the 2018 Will was not the last Will of the deceased, he subsequently asserted that the deceased died intestate.

More importantly, it was not entirely clear whether Mr Van Gorp was purporting to bring the whole of the proceedings as tutor for his two children, each of whom, in March 2020, was a person under a legal incapacity (a minor). His older daughter, Halle, was born on 14 May 2002, and his younger daughter, Tamsin, was born on 29 August 2004. He was not shown, on the Statement of Claim, as filed, as having commenced the proceedings as tutor for his two children.

Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 7.14(1) provides that a person under legal incapacity may not commence, or carry on, proceedings except by his, or her, tutor. It is not disputed that, at the time the proceedings were commenced, Halle and Tamsin was each a person under legal incapacity for the purposes of that rule.

Also, the Statement of Claim did not identify a solicitor acting for Mr Van Gorp, if he was, in fact, proposing to be the tutor for his two children. UCPR r 7.14(2) provides that, unless the Court orders otherwise, the tutor of a person under legal incapacity may not commence, or carry on, proceedings except by a solicitor. An order had not been sought (if it was the case) that, as the tutor of persons under legal incapacity, he should be permitted to commence, or carry on, the proceedings without a solicitor. (In referring to these matters, I am not being critical of Mr Van Gorp. As a non-lawyer, it is unsurprising that he was unaware of these procedural requirements.)

The proceedings were first listed in the Succession List on 6 April 2020. On this date, Mr Van Gorp appeared in person and Mr D Parish of counsel appeared for the Defendants. On this occasion, the Court indicated to Mr Van Gorp, in broad terms, that there were a number of problems with the form of the Statement of Claim, and encouraged him to obtain legal assistance. The matter was adjourned until 19 May 2020. That was a date by which Halle would have attained the age of 18 years.

During the course of the first directions hearing, Mr Van Gorp accepted that he had no “interest” in the deceased’s estate as he and the deceased had been divorced. He acknowledged that he was “not seeking anything for myself” and that he “did actually get some brief legal advice on the telephone”: Tcpt, 6 April 2020, p 02(25) & p 03(28-29).

When the matter was next listed, Mr Van Gorp, again, appeared in person and Mr Parish again appeared for the Defendants. The Court noted that the Defendants were intending to file and serve a notice of motion seeking to strike out the Statement of Claim and also seeking an order that security for costs be provided. Directions were made for the filing and service of a notice of motion and for evidence, by affidavit. The matter was adjourned until 22 June 2020.

On 20 May 2020, Mr Van Gorp sent an email to the Court requesting that the directions hearing be adjourned as he would be unable to appear on the date to which the matter had been adjourned. The Court dealt with the matter administratively, and with the consent of the Defendants, acceded to his request, adjourning the proceedings until 1 July 2021, a date convenient to him and the Defendants’ counsel.

Very sensibly, Mr Van Gorp, in the meantime, did obtain legal assistance. On 26 May 2020, Mr P Briffa, of PB Ritz Lawyers, filed a Notice of Appointment of Solicitor. Mr Van Gorp signed a Consent to Act as Tutor on 26 May 2020.

Then, on 2 June 2020, the Defendants filed the notice of motion seeking, amongst other things, the dismissal of the proceedings.

On 5 June 2020, Mr Briffa, on behalf of Mr Van Gorp, filed a notice of motion seeking an order for leave to file an amended Statement of Claim. Attached to the notice of motion was a proposed amended Statement of Claim, in which Tamsin, by her tutor Sean Cornelius Van Gorp, was named as the Plaintiff and Kimberley Ann Evans and Halle were named as the first and second Defendants respectively. In the proposed pleading, relevantly, an order was sought that Ms Evans represent the estate of the deceased; that Letters of Administration on intestacy be granted to Halle, or such other person as was appropriate; and in the alternative, a family provision order was sought in favour of Tamsin.

Apparently, the draft proposed amended Statement of Claim had been provided to the Defendants’ solicitors, under cover of a letter dated 27 May 2020. The consent to its filing was refused by them on behalf of the Defendants.

On 29 June 2020, Lindsay Ann Deuchar Davy, purportedly acting as the tutor for Tamsin, filed a notice of motion seeking an order pursuant to UCPR r 7.18(b) that Mr Van Gorp be removed as the tutor for Tamsin and that she, or some other person as the Court saw fit to appoint, be appointed as the tutor for Tamsin.

On 1 July 2020, Mr Parish of counsel forwarded to the Court consent orders, signed by Mr Briffa, on behalf of Mr Van Gorp, and by Mr McPhillamy, solicitor on behalf of the Defendants. I considered the form of orders proposed in Chambers, and on 2 July 2020, the following orders were made and entered:

Subsequently, the Court received submissions from the legal representatives of each of Mr Van Gorp and the Defendants.

On 5 August 2020, the matter was referred to Chambers.

On 11 August 2020, Mr Briffa sent to the Court an email enclosing proposed agreed Consent Orders, dated 10 August 2020, signed by the legal representative of each of the parties. I considered the form of orders proposed in Chambers, and on 13 August 2020, a draft form of proposed orders was provided to the legal representatives for consideration. Shortly thereafter, each solicitor approved the form of orders that had been provided.

On 13 August 2020, the following orders were made and entered:

It is only the order made in Paragraph 10 that remained to be determined.

An amended Statement of Claim was, in fact, filed on 21 September 2020, in which Tamsin was named as the Plaintiff, by her tutor, Anthea Jane McIntyre. In the amended Statement of Claim, the relief claimed was as follows:

Naturally, Mr Van Gorp was not named as a party to the proceedings.

On 18 September 2020, the matter proceeded in the Succession List, with Mr N Kirby of counsel appearing for Ms McIntyre, as the tutor for Tamsin, and Mr Parish appearing for the Defendants. Orders and directions were made. A Defence to the amended Statement of Claim was filed on 6 October 2020.

On 30 October 2020, Mr Van Gorp filed another notice of motion. The notice of motion no longer referred to a legal practitioner representing him. In this notice of motion, he sought the following orders:

I dealt with the notice of motion on 18 December 2020. On this occasion, Mr Kirby of counsel appeared for Tamsin’s tutor and Mr Parish appeared for the Defendants. Both opposed the application made by Mr Van Gorp.

Having read the notice of motion, having heard that there were disputes between Mr Van Gorp and the Defendants in other jurisdictions, bearing in mind the events that had occurred and the orders made, consensually, on 13 August 2020, and noting that there was no evidence that Mr Van Gorp, even if appointed, would carry on proceedings with a solicitor, so that they could be conducted efficiently and expeditiously, or that it would, otherwise, be in the best interests of Tamsin to remove Ms McIntyre as her tutor, I determined that Mr Van Gorp was not a person who ought to represent the estate or Tamsin.

I considered that there was no reason to remove Ms McIntyre, who had been appointed, consensually, as the tutor, presumably because she was independent of both Mr Van Gorp and the Defendants. So far as I could tell, she had acted, or tried to act, in the best interests of Tamsin. (Of course, by this time, Halle was over the age of 18. There was no evidence of her support in relation to the claims made.)

In the circumstances, the Court ordered that the notice of motion filed by Mr Van Gorp should be dismissed, with costs. In addition, as he had no interest in the estate of the deceased (as he had acknowledged), I formed the view that he should not be permitted to intervene in the proceedings. Other orders, notations and directions, were then made dealing with the substantive proceedings.

Subsequently, the proceedings were listed in the Succession List a number of times, as various investigations, and other steps, were carried out, by, or on behalf of, the tutor for Tamsin until, on 24 May 2021, the Court was informed that the substantive proceedings had been resolved subject to documents being prepared.

On 3 May 2021, Mr Van Gorp sent an email to the Court requesting that my Associate provide dial-in details “for any future listings and please tell me what the outcome was from today” as he was the guardian of Tamsin and because “we have a system of open justice, so I am entitled to attend the hearings in person…”.

On 31 May 2021, Mr Van Gorp sent an email to the Court and to the tutor for Tamsin in which he referred to an email sent earlier that day to the tutor for Tamsin. His email is reproduced below:

On 2 June 2021, I asked my Associate to send Mr Van Gorp an email, in the following terms:

On 31 May 2021, the legal representatives provided Consent Orders to the Court by email. On 2 June 2021, my Associate replied, on my behalf, with the following email:

Following some minor amendments requested by the parties, on 2 June 2021, final orders were made, in Chambers, dealing with the whole of the substantive proceedings. These orders provided for the determination of all matters in issue in respect of the amended Statement of Claim filed on 21 September 2020 and concluded the proceedings.

Regrettably, that did not conclude the proceedings. On 5 July 2021, Mr Van Gorp filed another notice of motion, in Tamsin’s proceedings, without a solicitor, in which he sought the following orders:

The notice of motion was returnable on 12 July 2021 on which date, Mr Van Gorp appeared in person, Ms McIntyre, Tamsin’s tutor appeared, and Mr Parish appeared on behalf of the Defendants.

As the substantive proceedings had been dealt with, and as Ms McIntyre, on behalf of the only Plaintiff in those proceedings, stated that she did not consent to the notice of motion being filed, effectively, on behalf of Tamsin, the Court explained to Mr Van Gorp that the only matter that remained outstanding, for the Court’s determination, related to his costs, which had been reserved by orders made on 2 June 2021.

The matter was relisted for different directions on 20 August 2021, 24 September 2021, 14 October 2021, and 25 October 2021.

On 2 November 2021, the Court stated that it would deal with the question of Mr Van Gorp’s reserved costs on 18 November 2021, with a hearing time of no more than 3 hours. Directions were made for each party to deliver to my Chambers, by 4:00 p.m. on Monday, 15 November 2021, an outline of submissions comprising no more than 3 pages on the issue of the costs reserved pursuant to orders made by the Court on 13 August 2020.

By email dated 12 November 2021, my Associate, at my request, sent an email to Mr Van Gorp and to the legal representatives of the Defendants, which was in the following terms:

On 12 November 2021, Mr Van Gorp filed a further notice of motion in the Registry, in which he sought certain relief in the substantive proceedings, which notice of motion has been listed, by the Registry, in the Succession List on 22 November 2021.

On 15 November 2021, the Defendants’ solicitors forwarded to the Court an Outline of Submissions and a Chronology.

On 16 November 2021, Mr Van Gorp sent an email to my Chambers in the following terms:

At my request, my Associate responded to his email in the following terms:

At 3:26 p.m. on 17 November 2021, Mr Van Gorp sent an email in the following terms:

The matter has proceeded today. It was called outside the Court, shortly after 10:00 a.m., again at 10:09 a.m., 10:28 a.m. and, at 10:46 a.m., with no appearance by Mr Van Gorp. Mr Parish of counsel appeared for the Defendants. Naturally, as her proceedings had been concluded, there was no appearance by, or on behalf of, Tamsin.

Nothing further had been received from Mr Van Gorp. In particular, other than what he had stated in the email of 16 November 2021, he provided no reasons explaining why he could not attend court today.

Rule 29.7 of the UCPR, relevantly, provides:

The clear purpose of UCPR r 29.7 is the efficient dispatch of court business. However, in dispatching court business, one cannot ignore the right of Mr Van Gorp to be informed, or, at least, to be made aware, of a hearing date. It is a fundamental principle that someone who may be adversely affected by the making of court orders has a right to be heard. In Cameron v Cole (1944) 68 CLR 571; [1944] HCA 5, Rich J said (at 589):

Needless to say, counsel for the Defendants did not indicate consent to the further adjournment of the hearing of this issue.

I am more than satisfied that it is appropriate to proceed in the absence of Mr Van Gorp or of anyone representing him. He was well aware that the Court proposed to deal with the question of his reserved costs today, and he indicated that he would not appear. In these circumstances, that is his decision. I am of the view that to further delay the determination of the issue of the reserved costs any longer would not be in accordance with the Court’s obligations under s 56 of the Civil Procedure Act 2005 (NSW) to facilitate the just, quick and cheap resolution of the real issues in the proceedings, I have proceeded to determine the question of the reserved costs.

Naturally, as he did not appear, there was no evidence upon which an order should be made referable to his reserved costs.

Because Mr Van Gorp’s submissions were so short, I set them out verbatim:

Mr Parish did not read any evidence in support of the Defendants’ case but referred to the events that had occurred of which the Court would be well aware.

The thrust of the Defendants’ submissions on the issue of Mr Van Gorp’s reserved costs are:

Mr Parish orally submitted that the Statement of Claim filed by Mr Van Gorp resulted in a procedural irregularity. The Defendants had taken the step, then, of seeking to strike out the Statement of Claim, as they were entitled to do. At its highest, the most that Mr Van Gorp could recover was the filing fee that he had paid at, or about, the time of its filing. Whether the Court should make an order for the payment of that filing fee should be considered in light of subsequent events and the costs that the Defendants have incurred.

Mr Parish indicated that he had been instructed to seek a gross sum costs order. When asked whether notice of this application had been given, he stated from the Bar table that Mr Van Gorp had been advised of that application only yesterday, when he had been served with an affidavit.

In view of the late service of the affidavit and notice of the application, and as Mr Van Gorp is not legally represented, and did not appear, I rejected that application for a gross sum costs order.

The matter then proceeded with counsel indicating that the orders sought by the Defendants were that Mr Van Gorp should pay the Defendants’ costs of this issue, calculated on the ordinary basis. Although counsel indicated that there may be a document which could result in the Defendants’ costs being calculated on the indemnity basis, he did not seek to rely upon any such document. (Naturally, he did not identify any such document, or inform the Court of its terms.)

When asked whether the costs were limited to the appearances since 7 July 2021, Mr Parish stated that they were, as these required appearances following the filing of Mr Van Gorp’s notice of motion of that date.

In the circumstances, having heard the oral submissions, I adjourned the matter, for about an hour, so that I could consider how Mr Van Gorp’s reserved costs should be determined. On my return, at about noon, there was still no appearance by, or on behalf of, Mr Van Gorp.

I do not accept the submission made by Mr Van Gorp that the proper time for the determination of the reserved costs application is at the time the notice of motion filed on 12 November 2021 is heard. I note, in regard to the notice of motion, that:

These are matters that are self-evident and do not involve any predetermination of the success or otherwise of the notice of motion. I mention them as they are incontestable.

I have set out the orders that were made after the retainer, by Mr Van Gorp, of Mr Briffa. All of those orders were made consensually, at a time when it must have been clear to Mr Van Gorp that the Statement of Claim had been filed other than in accordance with the UCPR.

Since then, there have been a number of appearances concerning the question of Mr Van Gorp’s reserved costs, on each occasion in respect of which Mr Van Gorp appeared legally unrepresented. He has persisted with his claim for the reserved costs, that being the only remaining issue to be dealt with in the substantive proceedings.

He was present when that remaining issue was set down for hearing. He was informed, via email correspondence from the Court in answer to an email from him, that the hearing would proceed whether he appeared or not. At the hearing to determine what costs, if any, he should receive, he did not appear.

No acceptable basis has been advanced for him to obtain his costs. In the exercise of the Court’s discretion, I am not prepared to order that the reserved costs of Mr Van Gorp, whatever they may be, are to be paid out of the estate of the deceased, or otherwise, other than in relation to the filing fee ($1,143), paid when the Statement of Claim was filed. That disbursement, probably, avoided the tutor, when she was appointed, having to pay a filing fee for the amended Statement of Claim, which was filed on 21 September 2020. It is fair and just that he be reimbursed for that amount.

However, the amount paid by Mr Van Gorp should not be paid by the estate of the deceased to him, but, as it is a specified sum, should be set off against the costs of the Defendants when they are formally assessed or agreed. Undoubtedly, they have incurred far greater costs, including the costs of the appearance of counsel today. Mr Van Gorp should pay those costs.

In the circumstances, the Court: