Furlong v Mill - [2024] NZHC 3569

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2024-409-083

[2024] NZHC 3569

UNDER the District Court Act 2016

IN THE MATTER

of an appeal against a decision of the District Court at Christchurch

BETWEEN

JAMES MICHAEL FURLONG

Appellant

AND

CAMERON MILL

Respondent

Hearing: 2 September 2024

Appearances:

A J Summerlee for Appellant R V Sami for Respondent

Judgment:

27 November 2024

JUDGMENT OF EATON J

This judgment was delivered by me on …….. at ……… pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

FURLONG v MILL [2024] NZHC 3569 [27 November 2024]

[1] On 17 January 2024, Judge Tuohy declined the application of James Furlong (James) for summary judgment against Cameron Mill (Cameron).1 James appeals that decision.

Background

[2] The appellant, James, was in a relationship with the late Brittnea Mill (Britt) from 2008 to 2015.

[3] From 2015 to her untimely death from cancer in March 2020, Britt was in a relationship with the respondent, Cameron.

[4] Prior to and during his relationship with Britt, James had been in the New Zealand Defence Force (Defence Force). While in the Defence Force, James was able to take out income protection and life assurance administered by AON New Zealand Ltd (AON). There was provision for policy benefits to be extended to life partners and Britt took advantage of this. Britt applied for a life benefit of $100,000 in February 2015, with an initial monthly premium of $5.57 which was paid solely by James until the time Britt died.

[5] Although James and Britt separated in 2015, it was not until 2019 that they entered into a Relationship Property Agreement (the Agreement) pursuant to s 21A of the Property (Relationships) Act 1976 (the Act).

[6] The Agreement contained a section headed “Life Assurance Policies”. It provided:

8.1 As from the separation date, the Sovereign Assurance life policy, number V1013468 has been and will continue to be James’ separate property.

8.2 As this policy has no cash out value, there will be no apportionment in relation to the same.

[7] No other policy is mentioned in the Agreement. I will return to the significance of this below.

1 Furlong v Mill [2023] NZDC 29304.

[8] After Britt’s death, James corresponded with AON about the life benefit. Because the policy was in Britt’s name, albeit subject to the above clause of the Agreement, AON had to organise payment of the life cover via Britt’s estate.

[9] Cameron is the sole beneficiary of Britt’s estate. It seems he is not the executor of Britt’s estate. In any event, between May and December 2020, there were a number of Facebook Messenger communications between James and Cameron relating to the insurance policy.

[10] A contract was reached between James and Cameron pursuant to which Britt’s estate would claim the life benefit. James agreed that Cameron would receive $20,000 from the payment and the balance would be paid to James, who would also make a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Furlong v Mill

Details

AGLC: Furlong v Mill [2024] NZHC 3569
Case: [2024] NZHC 3569
Decision Date: 27 November 2024

CaseChat Overview and Summary

In the appeal of Furlong v Mill, James Furlong, the appellant, sought summary judgment against Cameron Mill, the respondent, to enforce a contract relating to the proceeds of a life insurance policy taken out by Brittnea Mill, James' former partner. The policy was administered by AON New Zealand Ltd and James had been paying the premiums. After Brittnea's death, James and Cameron entered into an agreement whereby Cameron would receive $20,000 from the policy proceeds and the balance would go to James, with James also making a charitable donation. Cameron, as the beneficiary of Brittnea's estate, was to claim the life benefit but failed to comply with the agreement. Judge Tuohy declined to grant summary judgment, finding that Cameron's defence of mistake was reasonably arguable, as it was unclear whether James or Brittnea's estate was entitled to the proceeds. James appealed this decision.

The primary issue on appeal was whether the Judge correctly found that Cameron's defence of mistake was reasonably arguable. James argued that the Judge misapplied the threshold for granting summary judgment and erred in finding there was an evidential basis for the defence of mistake. He contended that the defence was not pleaded and there was insufficient evidence to support it. Cameron, on the other hand, argued that the Judge applied the correct threshold and that the evidence supported the findings.

The Court found that the Judge's conclusion that there may have been more than one policy was not supported by the evidence. The Court observed that the executors of Brittnea's estate were working on the basis of the policy linked to James' Defence Force service number and there was no evidence to suggest a separate policy existed. The Court held that the defence of mistake was not reasonably arguable as it was based on a mere assertion without any proper evidential foundation. The Court also noted that if Cameron intended to argue that James had no entitlement to the proceeds, it was his obligation to raise that issue supported by evidence. The Court concluded that the Judge erred in finding that the defence of mistake was reasonably arguable.

The appeal was allowed, and the Court granted summary judgment in favour of James in the sum of $85,569.32 plus interest from 2 December 2020. James was also awarded costs on the appeal.

Orders