O'Donoghue v Comia - [2023] NZHC 3218

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-000286

[2023] NZHC 3218

UNDER the High Court Rules 2016

IN THE MATTER OF

the estate of ALAN O’DONOGHUE of Christchurch, Deceased

BETWEEN

RUSSELL O’DONOGHUE

Plaintiff

AND

MARC LESTER PANSOY COMIA

Defendant

Hearing: On the papers

Counsel:

D Foster for the Plaintiff

D Ryken for the Defendant

Judgment:

15 November 2023

JUDGMENT OF ASSOCIATE JUDGE BRITTAIN

[costs]

This judgment was delivered by me on 15 November 2023 at 12 Midday Pursuant to Rule 11.5 of the High Court Rules.

…………………..
Registrar/Deputy Registrar

Solicitors / Counsel: Thomson Wilson, Whangārei
Ryken & Associates, Auckland

O’DONOGHUE v COMIA [2023] NZHC 3218 [15 November 2023]

Introduction

[1] This proceeding concerns a grant of letters of administration in respect of the estate of Alan O’Donoghue (the deceased), who died intestate. The primary issue is whether the plaintiff, Russell O’Donoghue (the deceased’s brother), or the defendant, Marc Comia (the deceased’s husband), has priority to the estate.

[2] The issue turns on whether Mr Comia contracted out of his rights of succession under the Administration Act 1969 (the Act) by a written agreement between the deceased and Mr Comia, created after their separation (the agreement).

[3] In my judgment dated 29 September 2023 (the judgment),1 I granted Mr O’Donoghue’s application for summary judgment for recall of a grant of letters of administration to Mr Comia made without notice and for a fresh grant of letters of administration to Mr O’Donoghue. I dismissed Mr Comia’s cross-application for summary judgment sustaining the earlier grant of letters of administration to him.

[4] I held that the agreement was effective to deprive Mr Comia of his rights of succession under the Act, but only if the agreement is given effect by the Family Court under s 21H of the Property (Relationships) Act 1976 (the PRA). I directed Mr O’Donoghue to apply to the Family Court for a declaration under s 21H. Mr Comia intends to oppose that application on the ground that the agreement is void.

[5] The issue of costs on the cross-applications for summary judgment is left to be resolved.

The parties’ positions

[6] Mr Comia received a grant of legal aid for this proceeding on 3 May 2023, before he filed his statement of defence and application for summary judgment. The grant extends to all steps he has taken in the proceeding to date.

[7] By virtue of s 45(2) of the Legal Services Act 2011 (the LSA), no order for costs may be made against an aided person in a civil proceeding unless there are

1 O’Donoghue v Comia [2023] NZHC 2735.

exceptional circumstances. Mr O’Donoghue submits that exceptional circumstances exist. He seeks costs as the successful party.

[8] Mr Comia argues that there are no exceptional circumstances and that costs should be reserved until the Family Court has determined whether the agreement is effective, which will ultimately determine the parties’ rights.

Legal principles

[9]Section 45 of the…

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 O'Donoghue v Comia

Details

AGLC: O'Donoghue v Comia [2023] NZHC 3218
Case: [2023] NZHC 3218
Decision Date: 15 November 2023

CaseChat Overview and Summary

The case of O'Donoghue v Comia before the High Court of New Zealand involves a dispute over the estate of Alan O'Donoghue, who died intestate. The primary issue is whether Russell O'Donoghue, the deceased's brother, or Marc Comia, the deceased's husband, has priority to the estate. This hinges on whether Comia contracted out of his rights of succession under the Administration Act 1969 by a written agreement created after his separation from the deceased. The court previously held that the agreement was effective to deprive Comia of his succession rights, but only if the Family Court gave effect to it under the Property (Relationships) Act 1976.

The court was required to decide whether there were exceptional circumstances that would allow it to award costs against Comia, who was receiving legal aid. Under section 45 of the Legal Services Act 2011, no order for costs may be made against an aided person unless there are exceptional circumstances. Russell O'Donoghue argued that exceptional circumstances existed due to Comia's failure to disclose the agreement in his application for letters of administration, his untenable defence concerning reconciliation with the deceased, his opposition to the discovery of the deceased's former solicitors' files, and his alleged failure to comply with a discovery order. Comia argued that there were no exceptional circumstances and that costs should be reserved until the Family Court determined the effect of the agreement.

The court found that Comia's qualified immunity under section 45 extended to all steps taken by both parties in the proceeding to date. The court rejected O'Donoghue's submissions regarding exceptional circumstances, finding that Comia's failure to disclose the agreement was not intentionally misleading or deceitful, the issue of reconciliation was irrelevant, and Comia's opposition to discovery, while unsuccessful, did not amount to exceptional circumstances. The court concluded that there were no exceptional circumstances, and therefore, section 45(2) of the Legal Services Act prohibited a costs award in O'Donoghue's favour. The court also noted that even if exceptional circumstances had been found, it would have declined to award costs to O'Donoghue due to the genuine issue regarding the agreement's validity, Comia's lack of significant assets, and O'Donoghue's potential entitlement to reimbursement from the estate. Consequently, there was no order for costs.

Orders