Van Gorp v Davy

Supreme Court of NSW|2021-12-02|Before: Ward CJ, Hallen J

Judgment

HER HONOUR: Before me for hearing on 2 December 2021 was an application, referred from the Succession List, brought by notice of motion filed on 12 November 2021 by Mr Sean Cornelius Van Gorp, seeking various orders in relation to proceedings (initially commenced by Mr Van Gorp but to which he was ultimately not a party) which were determined by consent orders made on 2 June 2021 by Hallen J (the Consent Orders).
The history of the succession proceedings disposed of by the Consent Orders is set out in a costs decision of Hallen J (see Van Gorp v Davy [2021] NSWSC 1509) but it will be necessary to reprise some of that history for the purposes of the present application.
First, however, I set out the relief sought by Mr Van Gorp in Mr Van Gorp's notice of motion: 1. The consent orders made by the Court on 2 June 2021 be set aside and varied pursuant to rule 36.15(1) on the basis they were made irregularly and/or against good faith, and pursuant to the principles set out in Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691; DJL v The Central Authority [2000] HCA 17; R v Burrell (2007) 175 A Crim R 21; Perpetual Trustees Australia Ltd v Heperu Pty Ltd (No 2) (2009) 7[8] NSWLR 190 and Chand v Zurich Australia Insurance Ltd [2013] NSWSC 102. 2. The consent orders be varied with the practical effect that the property and assets of the estate and notional estate be immediately placed in trust with the NSW Trustee & Guardian until ["B"] reached [sic] age 18 on […] 2022 and then the property and assets of the estate and notional estate be sold and the proceeds paid half each to ["B"] and ["A"], in cash, without any reduction for any repayment of alleged debts of the estate to any [of the deceased's] family member. 3. Pursuant to the principles set out in Knight v F.P. Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178, and by the Supreme Court in Kotar v Dernovsek [2005] NSWSC 838, all costs incurred by the parties in the proceedings be paid by the real party opposing the relief sought in the proceedings, being the [deceased's] family personally, ie not as executors. 4. Sean Cornelius Van Gorp is permitted to apply for family provision from the estate pursuant to s 70 of the Succession Act 2006.

Background

The background to this dispute, as gleaned from the affidavits read on the present application, and the respective submissions made both in writing and orally, relates to the estate of Mr Van Gorp's deceased former wife (to whom I will refer as the deceased).
The deceased and Mr Van Gorp had two children, one of whom (to whom I will refer as "B" to preserve anonymity) is a minor, although due to turn 18 this year. The other ("A") was an adult at the time of the conclusion of the succession proceedings (albeit a minor when the proceedings were commenced) and made no claim in those proceedings.
Prior to the deceased's death, there had been contested proceedings in the Family Court of Australia between Mr Van Gorp and the deceased. Indeed, Mr Van Gorp commenced his explanation of the background to the present application by informing me that this all originated in the Family Court proceedings. Those proceedings, as I understand it from Mr Van Gorp's submissions, were resolved by agreement between Mr Van Gorp and the deceased (albeit that he says that his agreement to the resolution of those proceedings was on the basis of an understanding as to what was to happen to his former wife's estate - she suffering from terminal cancer at the time; namely that it was all to go to the couple's children). As will be apparent from the following, the nub of Mr Van Gorp's complaint (and the impetus for the present application) is his apparently fixed belief that his (and the deceased's) children will receive nothing out of their mother's estate and that the deceased's family members (and, in particular, the executors) are seeking to cheat his children out of their inheritance.
Mr Van Gorp has, on the present application, relied upon certain parts of an affidavit of the deceased that was apparently filed in the Family Court proceedings on 27 November 2018 (a copy of which was annexed to Mr Van Gorp's first affidavit filed in the succession proceedings in this Court); and I will return to the deceased's affidavit in those proceedings in due course.
The deceased died on 17 July 2019, leaving a Will dated 13 November 2018. That Will was admitted to probate. The respondents to the present application are, as noted above, the executors of the estate. They are the deceased's brother and friend, respectively.
As I understand it, the deceased's two children live (and have lived for some time) with the deceased's family. It seems that they are estranged from their father (although I note that Mr Van Gorp attributes any such estrangement to the conduct of the deceased and/or her family). As I understand it, prior to her death the deceased had custody of the children.
The deceased's last Will (which Mr Van Gorp maintains is inconsistent with the deceased's 27 November 2018 Family Court affidavit) provides, relevantly, by cl 3 that the deceased's interest in a leasehold property in the Australian Capital Territory (the Property) and all household furniture and effects be held on trust for the children "to have the use occupation and enjoyment of [the deceased's] interest in the Property for as long as they wish" after the youngest attained the age of 25 years, but empowers the trustee at the children's request to sell the deceased's interest in the Property and out of the proceeds of sale to purchase another property or interest therein (to be held on the same trusts as applicable under cl 3) or alternatively (and again at the children's request) to invest the proceeds of sale of the deceased's interest in the Property and pay to the children the net annual income. After the youngest surviving child turns 25 or upon the death of the survivor of them, the deceased's interest in the Property, or proceeds of sale or alternative property, is to be held pursuant to the trusts established by cl 4.
Clause 4 of the Will in effect gives the residue of the estate to be held for the trustee of the KLD-Turalla Settlement (which had been created by a September 2002 Deed of Settlement) as an addition to the property already subject to the trusts of that settlement. The capital and income of the deceased's residuary estate is to be invested and, during the lives of the children, the net income is to be paid to various classes of beneficiaries (including the children) as the trustee in its absolute discretion shall determine; and, after the children's death, for the benefit of those beneficiaries (other than the children) again as the trustee in its absolute discretion shall determine from year to year. (The tutor for "B" has deposed, in an affidavit in support of the application for family provision, that it does not appear that there will be any residuary estate, on the basis that the deceased's estate in New South Wales is insolvent and the Property is subject to a right of occupation commencing after the youngest child turns 25.)
By cl 6, the deceased's brother and sister were appointed legal guardians of any of the deceased's children who had not attained the age of majority.
Clause 7, which appears to be a large part of Mr Van Gorp's focus on this application, sets out the trustee's powers (in what I would describe as a standard form and uncontroversial empowering clause), declaring that the trustee may exercise the powers set out therein in the trustee's "sole and absolute discretion", on whatever terms and conditions the trustee thinks fit and without being liable or responsible for any resulting loss (including liability for taxation on capital gains), in addition to any other powers conferred by the Will or by law. This is the clause that Mr Van Gorp suggests would permit the executors to transfer the deceased's property to themselves or their "mates" for $1 with impunity. Pausing here, that cannot be the proper interpretation of the Will, having regard to cl 3 which requires the trustee to hold the deceased's interest in the Property on specific terms. However, Mr Van Gorp's other complaint is that the children have been "brainwashed" such that they could be influenced simply to direct that the estate be transferred to the deceased's family. (Hence his desire for an independent trustee to be appointed.)
By way of further background, Mr Van Gorp has referred to the deceased's family as having a complicated structure of trusts and companies but that ultimately there is substantial family property and assets. The inventory of assets of the deceased, filed with the executors' affidavit, discloses shares in companies (to which nominal value is attributed). There is also in evidence the 2002 Deed of Settlement which establishes a discretionary trust of which in 2017 the deceased became sole trustee. The income and capital beneficiaries of the discretionary trust were, among others, the deceased and her children or grandchildren. Of course, as a discretionary trust, the interest of the deceased and her children under this Deed of Settlement was as potential objects of the exercise of discretion. It is not apparent that Mr Van Gorp appreciates the distinction between ownership of property in one's own right and the interest of a discretionary object under a family discretionary trust.
As noted above, Mr Van Gorp apprehends that the power granted to the executors under the Will permits the executors absolute (unfettered) discretion in relation to the estate such that the executors could distribute the whole of the estate to themselves; and he appears to believe that this is the case notwithstanding the orders made by Hallen J in the succession proceedings. Pausing here, such an apprehension seems to me to be unfounded. The executors are bound by the Consent Orders that have been made by his Honour in relation to provision out of the estate in favour of "B" (in substance, half of the deceased's estate and notional estate, which is to be held on trust for "B" until "B" turns 18 next year). Insofar as Mr Van Gorp complains that there is no order for the payment out of any amount to "B", that is no doubt because the amounts reflecting the provision to be made for "B" are to be held on trust for "B" until the age of 18; but this does not mean that "B" will receive nothing under the Will. Mr Van Gorp's response to this, however, is to suggest that the executors are in a position to influence "B" to make a direction for the amount held on her behalf to be transferred back to them (see below).
On 13 March 2020, Mr Van Gorp, as plaintiff, commenced proceedings in the Succession List of this Court (the succession proceedings). The documents filed by Mr Van Gorp did not indicate that he was purporting to do so as tutor for his then both minor children ("A" and "B") (he was simply named as plaintiff); nor did he make any application at that stage to be appointed as their tutor (though he later did so). In the succession proceedings as initially commenced, Mr Van Gorp sought to challenge the deceased's Will (on the basis of lack of testamentary capacity) and, in the alternative, Mr Van Gorp made a claim for further provision for the children out of the estate of the deceased. (Even had Mr Van Gorp been appointed as the tutor for his minor children, it would have been necessary - absent leave from the Court - for the proceedings to be commenced and carried on by a solicitor as required under the Uniform Civil Procedure Rules 2005 (NSW)).
Complaint was apparently made by the executors that the succession proceedings were invalidly constituted and, ultimately, on 13 August 2020, an independent solicitor, Ms Anthea Jane McIntyre, was appointed as tutor to represent "B". Mr Van Gorp's other, by then adult, child ("A") was not joined as a party to the proceedings and, as noted above, made no claim in the proceedings.
Mr Van Gorp accepts that he initially consented to the appointment of the independent solicitor but it appears that, very shortly thereafter, he became critical of the tutor's conduct of the proceedings (and, in particular, of the tutor's decision not to press a challenge to the validity of the Will). Mr Van Gorp also seems to take issue with the fact that the independent solicitor is a member of STEP (the Society of Trust and Estate Practitioners); and he complains that the tutor has advanced STEP objectives over and above the interests of "B". (I refer to this in due course.)
After the appointment of the tutor, an amended statement of claim was filed by the tutor on behalf of "B" in September 2020, seeking (among other things) the removal of Mr Van Gorp as the named plaintiff and substituting "B" by her tutor in his place. As adverted to above, the amended pleading confined the substantive relief sought to a claim for provision pursuant to s 59 of the Succession Act 2006 (NSW). The tutor's decision not to pursue the challenge to the validity of the Will was explained in Ms McIntyre's affidavit affirmed 15 September 2020 (in which reference was made to the enquires made by Ms McIntyre as to the circumstances of execution of the deceased's last Will and to the belief Ms McIntyre formed that it would not be in "B"'s best interests to challenge the validity of the Will, and that "B"'s interests would be sufficiently protected by a claim for a family provision order). In passing, I note that Ms McIntyre's affidavit annexes correspondence dated 11 September 2020 in which Ms McIntyre indicated that she would be requesting a video or telephone conference with "B" (I raise this because one of Mr Van Gorp's complaints is that the tutor had no contact with "B").
Mr Van Gorp then filed a notice of motion dated 30 October 2020 seeking, among other things, leave to participate as intervener in the proceedings (in order to challenge the Will) or in the alternative that he be appointed co-tutor (or, further in the alternative, that Ms McIntyre be removed as tutor and for his appointment as tutor in her place). Hallen J dismissed Mr Van Gorp's motion with costs.
Ms McIntyre affirmed an affidavit on 16 December 2020 in the succession proceedings in which she deposed to the attendance of the parties at a settlement conference on 10 November 2020 in accordance with the orders of the Court, at which the parties had reached an "in principle" agreement that the deceased's entire estate and notional estate be divided equally between the deceased's two children (an outcome which would seemingly be wholly consistent with Mr Van Gorp's wishes and the basis on which he says he agreed to resolve the Family Court proceedings).
Ms McIntyre, with the consent of the executors, sent a letter to the Court on 27 November 2020 detailing the outcome of the settlement conference and summarising the further work to be undertaken to give effect to the agreement. It appears that there was then some disagreement between the tutor and the executors as to how the in principle settlement agreement was to be effected (including the tutor's concern that the documents be drafted in a way which would provide the deceased's children with "ultimate control over their own inheritance").
By affidavit affirmed on 26 May 2021, Ms McIntyre deposed to the subsequent agreement reached on 25 May 2021 by her, on behalf of "B", and the defendants (the executors) as to the terms of the "in principle" agreement. In that affidavit, Ms McIntyre deposed that she had been informed by the executors that "A" did not wish orders to be made by the Court relating to her entitlements under the deceased's Will (see at [9]). The affidavit disclosed that Ms McIntyre had considered the terms of settlement in the Consent Orders and received legal advice from Mr Ellison SC (Senior Counsel independent of the executors) in relation to the nature and effect of the Consent Orders. Ms McIntyre deposed to her belief that the terms of settlement represented a fair and reasonable compromise of "B"'s claim, having regard to various matters there set out; to her belief that the two children's claims to the estate were of equal value and that the settlement reflected this; and to her view that it was unlikely that "B" would receive a substantially better result, were the matter to proceed to a final hearing, than that which had been agreed. Ms McIntyre deposed to her belief that it was in "B"'s best interests that the proceedings be resolved on the terms embodied in the Consent Orders and sought the Court's approval of the settlement.
On 2 June 2021, as noted above, the substantive issues in dispute in the succession proceedings (by then confined to the claim for further provision out of the estate brought by the tutor on behalf of "B") were resolved by Consent Orders approved by Hallen J pursuant to s 76(4) of the Civil Procedure Act 2005 (NSW) (Civil Procedure Act), such approval being necessary as "B" was a minor.
Mr Van Gorp here makes various complaints as to the making of these orders, including that: Hallen J did not take into account certain matters when approving those orders (including the position of the adult child "A"); that his Honour was misled into believing that the effect of the Consent Orders was to make provision for "B" (which Mr Van Gorp maintains the Consent Orders do not do); and that his Honour had no evidence as to the consent of "A" to those orders (the effect of the Consent Orders on "A" being a matter that Mr Van Gorp says his Honour was required to, and had indicated that he would, take into account).
Relevantly, the Consent Orders (consistent with his Honour's usual practice) made reference to the various affidavits and materials which his Honour had taken into account when approving the orders; and contained various notations. The Consent Orders, made in chambers, included: 1. Orders that the settlement of the claim by the Plaintiff, who is a person under a legal incapacity (a minor) be approved pursuant to s 76(4) of the Civil Procedure Act 2005 (NSW). 2. Notes that the tutor of the Plaintiff, who is a solicitor and an accredited specialist in Wills and Estates, as well as her legal advisers, including senior counsel, have considered the compromise and believe it to be beneficial to, and in the interests of, the Plaintiff. 3. Orders, pursuant to s 59 of the Succession Act 2006 (NSW) that, in lieu of the provision made for her in the Will dated 13 November 2018 of [the deceased], the Plaintiff receive, by way of provision, one-half of the property in the estate of the deceased and one-half of the property that is designated as notional estate of the deceased. 4. Orders that one-half of the value of the assets of the KLD-Turalla Settlement (of which the deceased was an appointor and sole trustee, and of which the Defendants are now appointors) be designated as notional estate of the deceased. … 6. Orders, pursuant to s 77(3) of the Civil Procedure Act 2005 (NSW) that the provision made for the Plaintiff out of the estate and notional estate of the deceased, be held on trust for the Plaintiff by the Defendants until the Plaintiff attains the age of 18 years or as she otherwise directs in writing after she attains the age of 18 years. … 10. Orders that the Defendants' costs, calculated on the indemnity basis, of the proceedings, be paid, or retained, as the case may be, out of the estate or notional estate of the deceased. 11. Notes that ["A"] … the only other person entitled to share the estate of the deceased, consents to these orders and notations. …
As can be seen from the above, the Consent Orders have the effect that, in lieu of the provision made for "B" under the deceased's Will, an amount comprising half of the deceased's estate and notional estate is to be held in trust for "B" until "B" attains the age of 18 years; and then "B" will be in a position to call for those funds. As adverted to above, this does not satisfy Mr Van Gorp's concerns as he believes that "B" is susceptible to the influence of the deceased's family (in his words, "brainwashed") and, in effect, that they will somehow persuade "B" to transfer "B"'s inheritance to them. Mr Van Gorp contends that the effect of the Family Court litigation is that he has not seen his children for many years; and that they have been "living under the sort of control of first the patriarch and then the matriarch" of the deceased's family and they have been "effectively brainwashed into having nothing to do with [him]".
As is also evident from the notations made in the Consent Orders, the tutor at the time had the benefit of independent legal advice and representation. Nevertheless, Mr Van Gorp maintains that the proceedings were nothing more than a "box ticking exercise" or a triumph of form over substance.

Evidence

Mr Van Gorp filed an affidavit, sworn by him on 12 November 2021, in support of his application but made clear in oral submissions that he also wished to rely on other evidence that he understood would be on the Court file in relation to the concluded succession proceedings (including, as noted above, the affidavit of the deceased that had been filed in the Family Court proceedings).
Insofar as Mr Van Gorp's 12 November 2021 affidavit was not confined to evidence of facts but includes (and in fact is largely comprised of) submissions, the stance taken by the executors on the present application (with a view to the overriding mandate under the Civil Procedure Act for the just, quick and cheap resolution of the real issues in dispute) was not to object to the admission of that material but, rather, to submit that where bare assertions or submissions were made, those parts of the affidavit should be read as submissions. Given that Mr Van Gorp did not have the benefit of legal representation, I considered that to be an appropriate course and have read the affidavit accordingly.
The executors filed no evidence in response to Mr Van Gorp's notice of motion but simply relied upon their written and oral submissions.

Mr Van Gorp's submissions

Mr Van Gorp in his oral submissions explained, as noted above, that the matter originated with proceedings in the Family Court (where he was alleging fraud in relation to certain costs orders and child support obtained). It is apparent from the deceased's affidavit, to which Mr Van Gorp referred, that the deceased was complaining about the stance taken by Mr Van Gorp in that litigation and the effect this had had on the deceased and her family. I make no findings as to this complaint - which is not before me. I simply note that it is consistent with the complaint that I apprehend underlies the executors' notice of motion to which I have referred above.
In any event, Mr Van Gorp said (as adverted to above) that he sought to settle those matters "by offering to pay everything" because his ex-wife was already in the terminal stage of cancer at that time; and that he said he would settle the whole proceeding provided that the money he paid would go to the couple's children. Mr Van Gorp's complaint is that the deceased's family then produced a Will (presumably, by this he means that he did not see the Will until after the deceased's death, since I do not understand there to be any allegation of forgery) which Mr Van Gorp maintains the deceased did not understand when she signed it and under which he says the deceased's family can deal with the deceased's estate as they see fit (including paying it to themselves), so that his children would get nothing.
Mr Van Gorp says that, when he saw the Will, he commenced the succession proceedings in this Court. He explained that he tried to start the proceedings on behalf of his children to challenge the Will and, in the alternative to seek (for them, as I understand it) family provision, but that he understands that there were "technicalities" preventing him from being able to do that. Mr Van Gorp says that he was persuaded by a lawyer that he retained (as I understand it, this being a Mr Briffa) that he should attempt to become a tutor but that there were then some irregularities (to which he refers in his affidavit) which he says resulted in him being "tricked" into agreeing to someone else being appointed as tutor (Ms McIntyre); and he complains that the first thing that Ms McIntyre did ("sort of over [Mr Van Gorp's] objection") was to discontinue the challenge to the validity of the Will and simply to proceed only with the family provision application.
Mr Van Gorp suggests that this is an irregularity because he says he orally consented to Ms McIntyre's appointment as tutor on the condition that she continue with the challenge to the Will. (That complaint, to my mind, does not go to any irregularity with the Consent Orders about which Mr Van Gorp now complains; rather, it goes to the circumstances in which Ms McIntyre was appointed tutor and, having regard to the subsequent dismissal of Mr Van Gorp's application to remove Ms McIntyre as tutor and to be appointed as co-tutor, it might well be inferred that it is likely that a tutor would have been appointed even over Mr Van Gorp's objection, had he not given his consent at the time.)
Mr Van Gorp then complains that the matter proceeded with him "basically being frozen out". Mr Van Gorp says that he could not attend most of the hearings before Hallen J and that he did not get to see any of the documents because he was not a party (and he criticises the tutor for expressing the opinion that he was not entitled to such documents).
As adverted to above, Mr Van Gorp maintains that the Consent Orders, when properly understood, do not result in his children receiving a substantial inheritance (contrary to what he suggests Hallen J was led to believe). Mr Van Gorp says that the Consent Orders mean that his children will effectively get nothing because of the power in the Will for the executors "to do as they see fit with the whole of the estate, including paying it to themselves".
Mr Van Gorp's complaint is that order 6 of the Consent Orders would permit "B" simply to direct in writing that the estate goes back to the executors; and he maintains that there is "pretty strong evidence" (Mr Van Gorp here referring an affidavit of "B" filed by the executor in the succession proceedings, which Mr Van Gorp says is to the effect that "B" "doesn't want anything to do with challenging the Will or applying for family provision" and that "B" "wanted nothing to do with [Mr Van Gorp]") that the executors will be able to persuade "B" to sign some document which assigns her whole inheritance back to the deceased's family (even before "B" turns 18). Mr Van Gorp is highly critical of the obtaining and filing of that evidence. Mr Van Gorp contends that "B"'s aunt (one of the executors) is conflicted (as she is a beneficiary under the Will) and argues that the obtaining of that affidavit and filing it was in itself an irregularity that is probably enough to have the Consent Orders set aside, Mr Van Gorp saying that "the lawyers that did that knew that you're not supposed do that. That's why children have tutors. You don't force them to sign affidavits that are clearly against their own interests".
As referred to above, Mr Van Gorp made reference to the deceased's affidavit in the Family Court proceedings, pointing to the timing of that affidavit some eight days after the deceased signed the Will. Mr Van Gorp says that the deceased's affidavit says that her interests in certain properties (which he describes as "the family company of the family which are highly valuable companies with lots of real estate in them") passes to her children (which Mr Van Gorp says in itself directly contradicts what the Will says - as explained above, this seems to be a misreading of the Will and a misunderstanding of the nature of the deceased's estate). Again, Mr Van Gorp's complaint is that the executors (which he says is "basically" her brother) can deal with the deceased's assets in whatever discretionary way they want in their unfettered discretion (and that the deceased's brother could even pay it to himself or "sell it to [his] mates for $1" and would not be liable for any loss).
I have had regard to the deceased's affidavit (on which Mr Van Gorp relied for the purposes of the present application), although it is not clear that it was formally read in the Family Court proceedings.
Pausing here, the Will in its terms (as explained above) gave to the trustee on trust an interest in certain property to permit the deceased's children to have the use and occupation and enjoyment of the property for as long as they wish after the youngest surviving child attains the age of 25; and it empowered the trustee at the request of the children to sell the interest in the property and purchase another property or to invest the proceeds of sale. The residuary clause required the trustee to pay a certain amount to the children or any part of any net annual income of the capital. At least one complaint about the Will (which the tutor herself seems to have raised) was that the children would have no control over their inheritance.
Mr Van Gorp also refers to the transcript of an occasion (12 July 2021) when the matter was before Hallen J and his Honour questioned the tutor about "A"'s attitude to the proceedings. Mr Van Gorp notes that the tutor said on that occasion that she had no direct contact with either of the children and that her only contact was with the solicitor representing their aunt (to whom Mr Van Gorp refers as the "conflicted aunt"), being the guardian. Mr Van Gorp says that this is another irregularity (i.e., that the tutor has represented someone to whom the tutor has never spoken and has received instructions as to what "B" thinks from the solicitor representing the aunt, who he says is conflicted because she and her children are beneficiaries of the Will as well). Pausing here, I note that the matter seemingly being raised on the occasion when this transcript was taken was a question as to whether Mr Van Gorp's costs should be borne by the estate. There is to my mind some ambiguity in the tutor's response as to whether the tutor is simply referring to not having spoken to "B" about the question of costs.
Mr Van Gorp further complains that the tutor has never spoken to "A", yet the tutor later told Hallen J, through the Consent Orders that "A" consented. Mr Van Gorp argues that Hallen J was not entitled to rely simply on the fact that someone had put forward consent orders saying that "A" consented as evidence that "A" did consent.
Insofar as Mr Van Gorp relied, in support of his application, on the submissions made in his affidavit (in addition to the above submissions), I summarise the matters to which he has deposed (without purporting to be exhaustive and noting that there is a large degree of overlap with the oral submissions) as follows.
Mr Van Gorp asserts (at [2]) that he is a co-guardian of "B" pursuant to the Guardianship of Infants Act 1916 (NSW) (Guardianship of Infants Act) and thus that he is a third party whose interests are affected by the orders made in these proceedings. (That elides the interests of "B" with Mr Van Gorp's position as her guardian. It can only be the interests of "B" that were relevant to the approval of the Consent Orders, not Mr Van Gorp's position as her father or guardian.)
As to the test to be applied in determining whether to approve a settlement, Mr Van Gorp refers (at [5]) to Yu Ge (by her tutor Tao Ge) v River Island Clothing Pty Ltd (2002) Aust Torts Reports 81-638; [2002] NSWSC 28 (at [30] (O'Keefe J)) to the effect that the judge "must assure himself that the terms of settlement are proper in the interest of the infant" and asserts (at [6]) that in this case the judge did not discharge that duty because he did nothing other than rely on the view of the tutor and her counsel, and ignored the evidence before the Court that showed that both the tutor and the defendants (and their lawyers) acted inappropriately in the proceedings (here referring to the "unlawful" obtaining by "a conflicted co-guardian" of an affidavit from a minor plaintiff "which expressed views obviously against her own interests and in favour of the interests of her conflicted co-guardian").
At [7], Mr Van Gorp asserts that the objective of the "real party" on the other side (who he identifies as the matriarch of the deceased's family) is the protection of her control over family assets across generations "without leakage to beneficiaries" such as "B" and "A" who might wish to live independently; an objective that he asserts was assisted by the tutor and her senior counsel (who it is said are members of STEP and support its "mission" of "helping families control and plan their assets across generations").
At [8]-[14], Mr Van Gorp alleges that the conduct of the tutor was irregular and against good faith, asserting that: the tutor did not look for any facts (and ignored the facts set out in his original statement of claim) as to any challenge to the validity of the Will and worked against "B"'s interests in favour of the "across generations" power of the matriarch; the tutor had no direct contact or communications with "B" to obtain her views, instead relying entirely on communications with the solicitor representing a "conflicted" co-guardian; the tutor was aware that she was breaching the legislative intent of ss 13, 14 and 19 of the Guardianship of Infants Act by communicating exclusively with the solicitor for the one conflicted co-guardian instead of "B" and the other co-guardian (i.e., as I understand his submissions, with Mr Van Gorp); the tutor wrote that she did not consider Mr Van Gorp to be entitled to any documents by virtue of being "B"'s guardian; the tutor's real objective was to keep the deceased's family happy rather than act in "B"'s interests (by noting in a letter to the Court that the Will did not permit the deceased's children ever to gain any control over their inheritance and then obtaining consent orders that failed to disturb this aspect of the Will); again, that the tutor identified the critical problem for "B" under the Will and then asked the Court to approve orders that did not rectify this; and saying that the other eligible beneficiary ("A") consented despite not having received legal advice; and the tutor failed to correct what was said to be the Court's critical misunderstanding that "A" had also brought a claim for provision (though it is not clear where it is said that misunderstanding arose or was exhibited).
At [15]-[18] complaint is made as to the circumstances in which Ms McIntyre was appointed (including as to matters relating to his own solicitor and Counsel). At [19]-[20], Mr Van Gorp makes reference to statements made by or to his Honour (as to whether the minute of order for Mr Van Gorp's replacement was necessary since leave had been given to the tutor to file an amended statement of claim; and as to the value of the estate), the relevance of which to the present application is hard to discern; as is the complaint at [21] that there is no evidence that "A" has received any legal advice to date (though Mr Van Gorp says that he had consistently encouraged "A" to do so).
Mr Van Gorp at [22] extracts transcript from 12 July 2021 in which Ms McIntyre (which, as noted above, is apparently in the context of a discussion as to costs as against the deceased's family members), saying that the orders were not sought against her and that she was appearing pro bono, said that she did not have direct contact with the children (I note that it is clear in the transcript that the tutor was saying that her interests and the executors were aligned insofar as they were resisting payment of any costs out of the estate - which seemingly would be in "B"'s interests in maximising the value of the estate).
At [23]-[24], Mr Van Gorp again returns to the "stated mission" of STEP and says that the Court was on notice of apparent bias on the part of the tutor (being a member of STEP) in favour of helping the deceased's family maintain its assets intact "within its financial structures across the generations" rather than the children succeeding in having any assets separately transferred to them from their mother's estate. At [25], Mr Van Gorp points to submissions made by counsel as to the need for "B" to gain independent control of "B"'s inheritance.
At [26], Mr Van Gorp extracts email communications with Hallen J's associate in which he says he made the Court aware of the "bad faith conduct" of both the tutor and solicitor.
At [27], Mr Van Gorp extracts part of an affidavit filed on 24 November 2020, referring to an agreement in principle to resolve the proceeding on the basis that provision be made for "B" for 50% of the estate and notional estate in lieu of the current structure in the Will and the balance to the other child ("A"), the only other eligible person "aside from Sean Van Gorp, who was formerly married to the deceased" (from which, Mr Van Gorp says that the Court was on notice that the proposed Consent Orders could affect the interests of both "A" and himself).
Pausing here, what was crystal clear by the time that the Consent Orders were made was that no application had been made by Mr Van Gorp for provision out of the deceased estate (therefore it is not correct to suggest that the orders had the potential to affect any claim by him; since he was not a beneficiary and had made no claim, the Court was entitled to proceed on the basis that he was not intending to make any claim - as he has indeed reiterated on the present application notwithstanding prayer 4 of his notice of motion).
At [28], Mr Van Gorp accuses the tutor of dishonesty in sending an email to him on 26 November 2020 (two days after the 24 November 2020 affidavit referred to above) in which the tutor referred to directions made on 9 November 2020 for an affidavit detailing any proposed resolution of the proceedings and the bases of why it is beneficial to and in the interests of "B", and in which the tutor said that she did not propose to file an affidavit until the terms of a settlement proposal had been agreed in principle.
Then at [29]-[30], further reference is made to STEP membership and STEP's "across generations" mission, it being asserted that the Court did not properly have regard to the issue of the children's independence when approving the Consent Orders. Again, complaint is made that his Honour was informed that "A" was excluded from the orders because "A" was not a party. (There is, of course, no doubt that "A" was not a party and therefore the basis on which it is suggested that "A" could properly have been included in any orders is not clear.)
From [31]-[43], various complaints are made as to the terms of the Consent Orders and as to the consideration of those orders: alleged non-compliance with s 65(1)(b) of the Succession Act regarding the amount of the family provision order; the allegation that the Court relied on the views of the lawyers and did not consider and form its own view as to whether the orders were beneficial to, and in the interests of "B"; the assertion that the orders are not in "B"'s interests (because it is said that on their face they indicate that the most likely outcome is that the two children will receive no inheritance or provision "despite substantial enrichment of the lawyers in the case from the assets of the estate"; that reliance was placed on the "unlawfully sworn" affidavit of the minor; that, as to "A"'s consent, reliance was placed on statements by the estate's solicitor (it being said that the Court had earlier been told that the solicitor's real client was the matriarch of the deceased's family rather than the estate); a submission that "independent" advice for "A" obtained by the deceased's family would not be independent of the executors' "obviously conflicted self-interests"; that the Court disregarded "A"'s interests despite there being no provision for "A" in the orders because no separate claim was made; that despite the unfettered discretion under the Will, Consent Orders were approved that did not disturb this power; that on the basis of the Consent Orders there could be no properly formed belief that the children will get any provision from the estate; that there was bad faith by the tutor when proposing the Consent Orders because of an awareness that the deceased's family alleged the estate owed a debt to the matriarch for legal fees and the tutor had referred to the insolvency of the estate; that no valuation figures were included in the Consent Orders (and hence absent those figures "A" could not have given consent from an informed position); and that the Court failed to make an order for the payment of, or state the figure for, the total amount of the tutor's costs (but only the balance of the costs in a stated amount out of the deceased's estate).
At [44], Mr Van Gorp reverts yet again to his complaint concerning the tutor's STEP membership, seemingly suggesting that his own solicitor misled him in that regard (and then adding that he nearly "fell off his chair" when his own solicitor said that he intended to join STEP).
At [45], Mr Van Gorp reproduces the text of a communication to the tutor and her senior counsel as to his concerns in relation to the Consent Orders and suggesting a different arrangement.
At [46]-[47], Mr Van Gorp deposes that despite being "B"'s father and co-guardian he was not given the opportunity to be heard, and he cites authorities in the parens patriae jurisdiction as to the requirement for an opportunity for parents to be heard (adding that an expression of view by a child may also be determinative of what should be done in the exercise of protective jurisdiction).
Broadly, those submissions go to the relief sought in prayer 1 of the notice of motion.
As to prayer 2, Mr Van Gorp's position is that he wants a variation of the orders to place the property and assets with the NSW Trustee and Guardian because he says that there needs to be an independent trustee (who is not conflicted by being a member of the deceased's family).
Mr Van Gorp says that it is obvious that if the deceased's family has control of the assets for any length of time they will effectively put the assets "into their very complex structure". Mr Van Gorp says that the deceased's family has a very complex financial structure involving many trusts and companies; and his fear is that the assets will disappear into their structure if the deceased family members are the trustees.
By prayer 3, Mr Van Gorp is seeking an order for all costs incurred by the parties in the proceedings to be paid by the deceased's family. In support of that submission, Mr Van Gorp (citing Knight v F.P. Special Assets Ltd (1992) 174 CLR 178; [1992] HCA 28) says that the deceased's family members are the "real parties" opposing his initial statement of claim (not the estate as such). Mr Van Gorp again says that it is the deceased's family "personally" that is trying to steal his children's inheritance "and they were always the real party in this". Accordingly, he says that if he succeeds then the costs should follow the event and the deceased's family should pay everybody's costs (including the tutor and the estate). Mr Van Gorp made clear that he was not seeking payment for his own costs (since he had not incurred any legal costs other than about $20,000) but that he did not want the estate paying the deceased's family's personal legal costs.
Pausing here, this prayer for relief is seemingly predicated on the assumption that Mr Van Gorp succeeds in obtaining the relief sought in the motion (at least in relation to the setting aside or variation of the orders) and, despite some confusion in the course of oral submissions, ultimately it appears that Mr Van Gorp accepted that this was the case.
In essence, as to the need to bring claims such as the fraud claims, Mr Van Gorp accepted that he had been told he would need to commence fresh proceedings and he understood that this was the effect of the decisions on which he relied (referring in his oral submissions to R v Burrell (2007) 175 A Crim R 21; [2007] NSWCCA 79 at [25]; [40] (McClellan CJ at CL)); Chand v Zurich Australia Insurance Ltd [2013] NSWSC 102 at [27], [28], [29], [30], [32], [35] (Adams J); and Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691 (Spies v CBA). However, Mr Van Gorp said that in the Family Court he had not done that; rather, he said that he had four proceedings on foot and all of those were supported by an application (not by new proceedings), with Mr Van Gorp informing me that there the Court had exercised a discretion to proceed even though new proceedings had not been started.
Mr Van Gorp submits that even though "technically" he should have started new proceedings to have the Consent Orders set aside for fraud or lack of good faith or irregularities, there was a discretion to proceed on the basis of a notice of motion, effectively seeking a dispensation from the requirement for fresh proceedings.
Finally, as to prayer 4, which seeks leave in effect to bring a claim for provision out of time (see s 70 of the Succession Act), Mr Van Gorp quite candidly told me that this was a "tactical move" (in effect to obtain standing to seek the other relief he seeks). In oral submissions, Mr Van Gorp explained that: Yes. I am going to be very truthful with you here. I've never wanted anything from the estate really but originally I thought that for me to do anything I had to make a family provision claim myself for myself. Then someone persuaded me that I didn't need to do that, I could make a claim on behalf of my [children]. Then I was told by a lawyer no, I can't do that, there's all the palaver about tutors being appointed. I got totally confused about whether or not I should make a claim myself in order to pursue my [childrens'] interests. That's what that is about. When I filed this motion I thought that maybe as a backstop I should become a party by making a claim myself and therefore I would have different standing to what I have at the moment.
Mr Van Gorp accepted that it had been explained to him by Hallen J that if he wished to bring a claim for provision then he would need to commence new proceedings and to explain why he sought an extension of time. Mr Van Gorp said "Again I'm being very truthful. I'm not after money for myself. Number 4 was a tactical move, I'm not after any money".
I note that after judgment was reserved Mr Van Gorp sought leave to make a supplementary submission to the effect that there was High Court authority that supported his argument that there is power (which should be exercised) to set aside or vary the Consent Orders made on 2 June 2021 for irregularities and as being made against good faith. In this regard, Mr Van Gorp referred to Clone Pty Ltd v Players Pty Ltd (In Liquidation) (Receivers & Managers Appointed) (2018) 264 CLR 165; [2018] HCA 12 and in particular to what was said at [53]-[54]: 53. The power by original bill to rescind the decree could be brought without leave. Hence, the conditions for leave that attached to the bill of review based upon fresh evidence did not apply. If those conditions were not to be undermined, it was necessary that the circumstances in which the original bill was available be significantly circumscribed. The original bill was commonly described as limited to fraud, although there were different species of fraud to which the bill could apply. The fraud was not limited to a deceit or dishonesty by the opposing party. It extended, in the words of the Lord Chancellor of Ireland, to a "fraud on the court" such as where parties who were not hostile nevertheless presented their case to the court as antagonists in order to obtain orders depriving third parties of their rights. In exceptional circumstances it was possible that it could extend to fraud of a witness by perjury. 54. There were other categories of case in which the Court of Chancery recognised jurisdiction to set aside a perfected decree in the absence of fraud. One was where the decree affected rights of parties who had not been joined … [Emphasis as per Mr Van Gorp's supplementary submissions, footnotes omitted]
Mr Van Gorp has explained that he sought to join "A" as a defendant in order to trigger her involvement as a party to protect her interest but again says that he was told by Hallen J that this was unnecessary because "he has a duty under the Succession Act to consider ["A"'s] interests despite her not being a party". Mr Van Gorp says that this denied "A" an opportunity to be heard and that her rights, as the only other eligible person, were extinguished by the orders made.

Application to set aside or vary the Consent Orders

The respondent notes that, in applying to set aside or vary the Consent Orders, Mr Van Gorp relies on r 36.15(1) of the Uniform Civil Procedure Rules (UCPR) and/or the principles under cases dealing with fraud or bad faith in relation to the entry of consent judgments. In this regard, the executors (correctly) point out that r 36.15 of the UCPR (which I extract later in these reasons) deals only with the setting aside of judgments or orders; not their variation.
At the outset, the executors contend that Mr Van Gorp does not have standing to seek the orders sought in prayers 1-3 of the notice of motion, he not being a party to the proceedings or the Consent Orders (his only connection to the matter being that he is the biological parent of "B").
Assuming that the standing issue could be overcome, complaint is made by the executors that Mr Van Gorp has not sufficiently articulated what he contends is the irregularity or "against good faith" acts that would enliven the discretion to set aside the Consent Orders or how there would be "sufficient cause" to do so.
To the extent that Mr Van Gorp relies on Spies v CBA to allege that the Consent Orders (said to have been made "against good faith") amounted to fraud, the executors say that this should have been done with proper particularisation of the allegations (referring to Teoh v Hunters Hill Council (No 5) [2012] NSWCA 75 at [14]). (I agree. Fraud is a serious allegation to make; it is not lightly to be pleaded; and it is well recognised that it would need to be properly pleaded.)
The executors say that Mr Van Gorp has set out in his affidavit a series of disparate events said to amount to irregularity or lack of good faith, most of which the executors say have no connection with the actual orders made and amount to ad hominem attacks on the motivation of various persons, none of whom is a party to the notice of motion. In particular, it is noted that in his affidavit, Mr Van Gorp contends that Hallen J did not discharge his duty (see at [6]); that the tutor has acted as set out at [8]-[14], [26] (see above summary of the affidavit); and Mr Van Gorp makes a complaint as to the conduct of his own former solicitor and counsel (see at [16]-[18], [26]).
The executors maintain that Mr Van Gorp has no standing to seek the setting aside of the Consent Orders but in any event they contend that the evidence does not establish irregularity in the requisite sense or any lack of good faith. It is noted that "B" was represented in the succession proceedings by an independent tutor and experienced senior counsel each of whom was satisfied that the compromise was beneficial and in "B"'s interests (as noted in order 2 of the Consent Orders); that Hallen J was satisfied under s 76(4) of the Civil Procedure Act that it was appropriate to make the orders (referring to order 1 of the Consent Orders); that there is no evidence that membership of STEP (of which Mr Van Gorp complains in relation to the tutor and of the tutor's senior counsel) creates some kind of bias in favour of matriarchal dynasties; and that there is no evidence that "B" has had her will overborne or is in some kind of cult-like family situation. It is noted that Mr Van Gorp makes various submissions about the consent and rights of his elder child "A" (see at [35]ff of his submissions by way of example) but that "A" made no claim in the proceedings.
It is submitted that even if any of the allegations made by Mr Van Gorp were to be true (which the executors deny) there is no explanation of how these complaints infected the Consent Orders and the compromise made under those orders. As noted above, the effect of the orders is that "B" (being one of the deceased's two children) receives half the estate and half the notional estate (see orders 3 and 4) albeit that this is held in trust until "B" attains the age of 18.
Further, the executors say that there are no grounds on which to vary the orders (as propounded in prayers 2 and 3 of the notice of motion). The executors emphasise that the Consent Orders that Mr Van Gorp seeks to vary are final orders of the Court. It is submitted that there is no basis on which to bring an application in these proceedings seeking to vary the final orders by replacing them with a different judgment (the executors here referring to Meehan v Glazier Holdings Pty Ltd (2002) 54 NSWLR 146; [2002] NSWCA 22 at [23] (Giles JA)).

Prayer 4 - Application under s 70 of the Succession Act

As to the application by prayer 4 of the notice of motion for leave to bring an application pursuant to s 70 of the Succession Act, the executors point to the fact that such an application would need to be commenced by fresh proceedings. Further, on the basis of Mr Van Gorp's oral submissions on the present application (to the effect that he does not wish to have provision made for him out of the deceased's estate but included this prayer for relief as a tactical move in order to obtain standing) the executors say that it is an abuse of process.

Costs

The executors seek orders dismissing Mr Van Gorp's notice of motion with costs. I note that, in their submissions, the executors say that the notice of motion filed on 12 November 2021 is the 62nd claim or application brought by Mr Van Gorp against either his late wife or her estate (including a number of applications to set aside judgments or orders for fraud) and that there are a number of extant costs orders made against him.
Mr Van Gorp in oral submissions has informed me that in order to address the executors' motion he would wish to explain why each of those applications (the number of which was apparently a matter of surprise to him) was reasonably brought. How many such applications there may have been and whether or not they were reasonably brought at the relevant times is not a matter that is presently before me. Moreover, Mr Van Gorp must have an opportunity to respond to those allegations (which was the purpose of the case management directions that I made on 2 December 2021). Suffice it to note that it appears that there is a history of litigious dispute both here and in the Family Court between Mr Van Gorp and first his former wife and now her estate (Mr Van Gorp does not as I understand it cavil with that proposition). However, I do not take that into account on the present costs application.
Costs should simply follow the event as is the ordinary course.

Determination

First, as to the threshold issue of standing (in relation to the claims for relief in prayers 1-3 of the notice of motion), Mr Van Gorp does not have standing. Mr Van Gorp was not formally appointed as a tutor for "B" (or, for that matter, "A") at the time he commenced the succession proceedings (or, indeed, at any time). Mr Van Gorp made no personal claim in the proceedings and thus (contrary to his submissions) he was not someone whose interests would be personally affected by the orders made in those proceedings. (Even now, his application in prayer 4 for leave to make an application for provision is one that he acknowledges is only to obtain standing.) Even if Mr Gorp's consent to the orders for his removal as plaintiff was somehow vitiated by a misunderstanding as to the course the tutor proposed to take, or that his solicitor was not authorised to give such consent on his behalf, the parties (and the Court) proceeded on the basis of that consent; and any irregularity in that regard does not go to the entry of the Consent Orders of which Mr Van Gorp now complains.
Mr Van Gorp was not a proper party in his own right to the proceedings as initially constituted. At all times, Mr Van Gorp has acted with a view (whether misconceived or not) that he was protecting his children's interests. To do so on their behalf, while they were minors, he required to be appointed as a tutor. There was no such appointment (and, indeed, by the time of the Consent Orders, "B" was represented by a tutor whose appointment had been the subject of court orders; and "A" did not require a tutor as "A" was no longer under the legal disability of being a minor).
Further, as adverted to above even if Mr Van Gorp might have been in a position to challenge his removal as plaintiff and the appointment of Ms McIntyre, it is difficult to see what relief could now flow from such a challenge since the succession proceedings have now been concluded and Mr Van Gorp's interests were not directly affected by the outcome of those proceedings - as to which I note the "sufficient cause" requirement for exercise of the discretion to set aside a judgment for irregularity or lack of good faith (discussed below).
Mr Van Gorp was made aware of the difficulties with his application at the time that the succession proceedings were on foot. His application to intervene or to be appointed as co-tutor or replacement tutor was unsuccessful. It is also relevant to note that Mr Van Gorp had the benefit of legal advice from time to time and it should be inferred that his legal representatives would have explained to him the difficulties he faced in seeking to pursue the claim as originally constituted.
Mr Van Gorp thus has no standing now to challenge the orders that have been made in the succession proceedings. Insofar as Mr Van Gorp suggests that he has standing as the co-guardian of "B" to set aside the Consent Orders for fraud or the like, and leaving aside the fact that under the deceased's Will the deceased's sister was appointed as "B"'s guardian, Mr Van Gorp well understands that such a challenge is required to be brought by fresh proceedings (not by notice of motion in the concluded succession proceedings).
Insofar as Mr Van Gorp's prayer 4 on the present application appears to be an attempt to overcome the standing issue (which was the tenor of his explanation during his oral submissions), it does not. An application for leave to make a claim for provision out of the deceased estate would also need to be made by fresh proceedings.
Thus, by reason of Mr Van Gorp's lack of standing and the inappropriate way in which he has brought the present challenge, the notice of motion should be dismissed.
Leaving aside the difficulty with standing, there are other difficulties with the remaining orders sought in the present notice of motion.
Turning first to the application to vary the Consent Orders (in order to put in place the NSW Trustee and Guardian or in relation to costs - prayer 2), there is no power under r 36.15 of the UCPR to vary final orders on an application brought by notice of motion in proceedings that have been concluded.
The power to vary judgments, broadly speaking, is not exercisable (other than under the slip rule - see r 36.17 of the UCPR) unless the application is made with 14 days after the judgment or order is entered (see r 36.16(3A) of the UCPR). In this context it is relevant to note the importance placed on the finality of litigation. In Wentworth v Rogers (No 9) (1987) 8 NSWLR 388 (at 394E-F) Kirby P, as his Honour then was, said: ... the jurisdiction to set aside an order and to allow [the applicant] a hearing is not a right but an 'indulgence'. The reason for this cautious attitude is obvious. It is stated by Mason and Wilson JJ in their judgment [State Rail Authority v Codelfa Construction Pty Ltd (1982) 150 CLR 29; [1982] HCA 51 at 38] to be the public interest in maintaining the finality of litigation. Otherwise, a determined or wealthy litigant could postpone final judgment and exhaust the rights and funds of his opponent by continuously denying the finality of the judgment and seeking to reopen disputes which that judgment was designed to close, at least so far as the courts were concerned.
Similarly, in Aktas v Westpac Banking Corporation Ltd (No 2) (2010) 241 CLR 570; [2010] HCA 47 at [6], French CJ, Gummow and Hayne JJ made clear that the discretion to re-open to vary a judgment should be sparingly engaged (and see Smith v NSW Bar Association (1992) 176 CLR 256; [1992] HCA 36 at 265 (Brennan, Dawson, Toohey and Gaudron JJ)).
Further, insofar as any such application raises serious issues of dishonesty or misconduct on the part of third parties to the application (particularly where those third parties are officers of the Court such as Ms McIntyre, her Senior Counsel and other legal practitioners, including Mr Van Gorp's own solicitor and Counsel) it would not be appropriate to make any such finding without giving those parties an opportunity to be heard; nor would it be appropriate to entertain any such application in the absence of parties who may be affected by it (in particular, in the absence of any representation on behalf of "B").
Turning then to the application to set aside orders (prayer 1), the rule that has here been invoked by Mr Van Gorp (r 36.15 of the UCPR) relevantly provides that: (1) A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith.
It has been noted (see the commentary in AV Ritchie, Ritchie's Uniform Civil Procedure New South Wales (LexisNexis Butterworths) (Ritchie's) at [36.15.10]) that, leaving aside actual illegality, the concept of irregularity includes a contravention or non-compliance with specific provisions governing the making or entry of a judgment or order (which is not the case here); or where (see at [26.15.12]) the judgment is excessive in the sense that it is entered for more than is due or in reliance on an ambiguous admission or contrary to an agreement between the parties.
Irregularity does not extend to matters such as errors attributable to forensic decisions of the parties or the failure of a party to raise an apparently arguable point. Relevantly for present purposes, it has also been said not to apply to errors in the merits of the substantive decision (such as seem here to be raised in relation to the exercise of the discretion to approve the settlement) or earlier procedural deficiencies (such as here, perhaps, issues relating to the appointment of the tutor) (see Weber v Aquaqueen International Pty Ltd [2013] NSWSC 1181 at [121] (Garling J) - that being a case where the judgment wrongly included the costs of a costs assessment).
Judgments that have been set aside as contrary to good faith include: default judgments signed contrary to an agreement between the parties and judgments contrary to a promissory representation or made for the purpose of defrauding creditors (see Ritchie's at [36.15.17]).
Further, the requirement for sufficient cause has been said to mean that exercise of the power to set aside a judgment or order is not appropriate where the irregularity is inconsequential or causally unrelated to the making of the judgment or order (see the authorities cited at [36.15.18]).
The setting aside of a judgment on the basis that it is obtained by fraud is a different matter from one of irregularity or lack of good faith. The principles on such an application were considered by Kirby P, as his Honour then was, in Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 538. Such an application should be made in separate proceedings and there must be clear particularisation of the alleged fraud.
As to the application to set aside the Consent Orders, again Mr Van Gorp does not have standing to bring such an application but, even if he did, the parties who might be affected by the relief sought have not been joined; and this is simply not the appropriate way in which to bring an application to set aside a judgment for fraud or the like after a concluded hearing (as Mr Van Gorp himself ultimately conceded - albeit that he contends that this is a triumph of form over substance and invokes what was said in a different context in the Family Court in effect to suggest that the Court should proceed without such formality).
I do not agree that requiring Mr Van Gorp to follow the appropriate processes would be a triumph of form over substance. Allegations of fraud or lack of good faith are serious allegations to be made. As noted above, they would need to be properly pleaded and particularised in a statement of claim in order to permit the defendant(s) and those affected by the orders to understand and address the case that is being put against them. There is certainly nothing presently put forward in Mr Van Gorp's affidavit or submissions that to my mind would warrant a finding of fraud or lack of good faith.
As to the allegation that the Consent Orders were affected by irregularity or a lack of good faith, the irregularities identified by Mr Van Gorp go in large part to the conduct of the proceedings as a whole (the failure of the tutor to challenge the validity of the Will, for example; or the obtaining of an affidavit from "B" in the circumstances that Mr Van Gorp says it was taken; or the manner in which the tutor is said to have obtained instructions; and the like); not to matters relating to the entry of the orders as such.
As to the complaint as to the effect of the orders (i.e., that "B" will not obtain anything out of the estate because "B" is brainwashed or under the control of the deceased's family and is likely to give away her inheritance), this is really a challenge to the exercise of discretion by the Succession List judge to approve the settlement - it is not an irregularity in the making of the orders; and, again, it would need to be challenged in the proper way by someone with standing to do so.
It might perhaps be said that the complaint as to the notation in the Consent Orders as to "A"'s consent (in circumstances where Mr Van Gorp says that there was no, or perhaps more accurately not sufficient, evidence of that consent) amounts to complaint as to an irregularity in the entry of the order but I consider the better view to be that it is not a matter of irregularity at all; it is a challenge to the exercise by the Succession List judge of the discretion to approve the settlement (after having taken into account the best interest of the minor) having regard to the effect on "A" of the settlement in favour of "B" (i.e., the order for further provision in favour of "B").
The Succession List judge was not in my opinion required to test the veracity of what was put forward by independent and experienced legal practitioners; nor was his Honour required to conduct an enquiry into the adequacy of any advice that "A" might have obtained. Rather, what his Honour was required to do was to determine, in approving the settlement, whether in his opinion it was in the best interest of the minor ("B"). His Honour did so having regard to the material put before him (and to which he referred in the Consent Orders), including the evidence of the tutor (who deposed to having received advice from senior counsel) as to the basis on which, in her view, the proposed settlement was in the best interest of "B". The suggestion that this was a mere "box ticking" exercise is not borne out. The material certainly provided an evidentiary basis for the conclusion reached that the settlement was in "B"'s best interests (securing for "B" half of the estate and notional estate of the deceased, albeit that this was to be held on trust until "B" turned 18). Insofar as the settlement contemplated an order for provision out of the estate (on the making of which, had the matter proceeded to a contested hearing, regard would have been had to the factors set out in s 60 of the Succession Act and any other relevant factors, it should be noted that the evidence before his Honour would have supported a conclusion that "B"'s interest in the estate was equal to that of "A" (and hence that the provision made for "B" would not affect the position of "A", the other main beneficiary of the deceased's estate).
In Kelly v Kelly [2019] NSWSC 994, albeit in a different context, namely approval of an inter vivos release pursuant to s 95 of the Succession Act, Hallen J drew a parallel with approvals under s 76 of the Civil Procedure Act (see at [73]-[74]) noting that in such cases the usual procedure is for the Court to be provided with a copy of written advice recommending the settlement and providing reasons, such that the Court has the benefit of Counsel's advice and reasoning, and can better understand why the person under a legal disability has been advised to accept the settlement. In the present case, Hallen J had before him the affidavit evidence in relation to the family provision claim and the affidavit evidence from the tutor as to the basis on which the tutor had formed the view (with the benefit of experienced senior counsel's advice) that the settlement was in the best interests of "B". That was sufficient in my opinion to enable his Honour to discharge his duty in relation to the approval of the settlement.
The concern that Mr Van Gorp has raised as to "B"'s inheritance is difficult to understand other than that he clearly harbours suspicion as to the deceased's family members. The Consent Orders on their terms make provision for "B" by way of orders for half of the estate and notional estate in "B"'s favour. As noted above, that sum is to be held on trust until "B" turns 18 and then "B" will be able to call for the fund. The submission that the terms of the Will would permit the executors to act otherwise than in accordance with the Consent Orders is not tenable.
As to "A", who is an adult, there was no claim for provision made for "A" in the proceedings before his Honour. True it is that on an application for provision out of a deceased estate pursuant to s 59 of the Succession Act, the matters that may be taken into account include the position of beneficiaries of the estate who may be affected by an order for provision (and see also the provisions in relation to notional estate). His Honour's orders made clear that he did take the position of the other beneficiary into account; and that his Honour was satisfied that "A" had consented to the order for provision that was thereby contemplated in favour of "B". The complaint that there was no evidence before his Honour of "A"'s consent (simply a statement to that effect in the Consent Orders that had been submitted) overlooks the fact that there was an affidavit of the tutor in which the tutor deposed to the instructions received from the executors to the effect that "A" did not wish orders to be made in relation to "A"'s position as beneficiary under the Will. The Consent Orders were submitted by officers of this Court whose paramount duty is to the Court and who would not lightly be expected to breach their ethical obligations by misrepresenting the position. Moreover, it is difficult to see any obvious unfairness to "A" in the making of provision for "B" in circumstances where the evidence is that the deceased had only two children; the orders in favour of "B" dealt only with half the estate; "A"'s entitlements under the Will remain; and "A" had sought no further provision than that provided for under the Will. If the complaint is that Mr Van Gorp considers that some other provision should have been made for "A" under the Will, that could not be dealt with in the absence of "A" having an opportunity to be heard and the making of a claim on a proper basis.
As to the reliance placed by Mr Van Gorp on the High Court decision in Clone v Players, the High Court (Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ) was there considering the equitable power of a court to set aside its own perfected judgments and, relevantly for present purposes, whether that power extended to misconduct of the party who succeeded at trial which did not amount to fraud (see at [1]). Their Honours held that the general power of a court to set aside its perfected judgment required actual fraud (although noting that there are other discrete grounds to set aside a perfected judgment which were not in issue in the appeals before them) (see at [2]). In the course of the decision, their Honours noted that if fraud is alleged then generally a fresh action would be the appropriate application relying upon the power to set aside a perfected judgment for fraud (even where, as had been the course taken in that case, the separate procedure of a motion for a new trial might be concurrently available), noting that independent proceedings can permit the whole issue to be properly defined, fought out and determined (see at [32]).
The paragraphs of the decision on which Mr Van Gorp here relies appear in the section of their Honours' reasons dealing with the scope of the power to set aside perfected judgments, in which their Honours noted that the distinction, and separate requirements, of an action for an appellate court to set aside a lower court judgment and order a new trial and an original action to set aside a judgment based upon fraud, were fundamental to the appeals there before the High Court (see at [44]).
At [52], their Honours referred to the separate (and much narrower) equitable power to set aside perfected judgments. It is in this context that the comments in [53]-[54] were made. At [54], in part of the paragraph not extracted by Mr Van Gorp, their Honours emphasised that the other categories of case in which the Court of Chancery recognised jurisdiction to set aside a perfected decree in the absence of fraud "were never suggested to extend to malpractice not amounting to fraud in the course of proceedings".
At [55], their Honours again stated that the general power to set aside a judgment on the ground of fraud required actual fraud (fraud being the essence of the action) and said that it did not allow for judgments to be set aside for misconduct, accident, surprise, or mistake. The narrow scope of the general power was again noted at [57].
In the present case, although Mr Van Gorp did not expressly invoke the general power to set aside perfected judgments based upon fraud (his notice of motion referring to r 36.15(1) of the UCPR), he did expressly invoke the principles set out in authorities (such as Spies v CBA) where the general power to set aside judgments was considered and thus Mr Van Gorp may be taken to implicitly rely on such a power. However, the matters on which Mr Van Gorp relies in relation to the setting aside of the judgment do not readily fit within the notion of actual fraud in the sense described by their Honours in Clone v Players at [55] (as opposed to irregularities or the like); and in any event this does not address the requirement that such an application be made in fresh proceedings. Therefore, while I readily accept that there is a general equitable power to set aside perfected judgments based upon fraud but I do not accept that Mr Van Gorp is the proper party to make such an application in the present case and, even if he were, I do not consider it appropriate that the application be brought by notice of motion in the concluded proceedings (and I do not accept that the matters he raises, assuming them to be correct, would support the exercise of the power in any event).
Insofar as Mr Van Gorp's complaint is that the Consent Orders affected "A"'s interests, it is to be noted that "A" has not sought to set aside the Consent Orders and does not complain as to the making of those orders.
Therefore, even had the issue of standing not arisen, I would have dismissed the claims for relief in prayers 1-3 of the notice of motion.
Finally, as to the application (in prayer 4) for leave to bring a family provision claim (and leaving aside the question of abuse of process involved in such an application being brought only to obtain standing), again it would need to be brought in the proper way (though I interpose to note that it is difficult to see how such an application would succeed if Mr Van Gorp's position were to remain (as he explained it to me) that he does not in fact seek any provision for himself out of the estate; and, if that position were to change, one would expect that Mr Van Gorp would need to explain both the delay in making the application and the reason for his change in position beyond simply seeking to cloak himself with standing to challenge the Consent Orders).
Accordingly, the notice of motion must be dismissed. As to costs, they should follow the event as in the ordinary course.

Orders

For the above reasons, I make the following order: (1) Dismiss the application filed by Mr Van Gorp on 12 November 2021, with costs.

Amendments 08 February 2022 - Amendment to date in the order and [10]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 February 2022

Uniform Civil Procedure Rules 2005(NSW)rr 36.15, 36.16(3A), 36.17

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