O'Donoghue v Comia
[2023] NZHC 3218
•15 November 2023
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 LSA relevantly provides:
45 Liability of aided person for costs
(1)If an aided person receives legal aid for civil proceedings, that person’s liability under an order for costs made against him or her with respect to the proceedings must not exceed an amount (if any) that is reasonable for the aided person to pay having regard to all the circumstances, including the means of all the parties and their conduct in connection with the dispute.
(2)No order for costs may be made against an aided person in a civil proceeding unless the court is satisfied that there are exceptional circumstances.
(3)In determining whether there are exceptional circumstances under subsection (2), the court may take account of, but is not limited to, the following conduct by the aided person:
(a)any conduct that causes the other party to incur unnecessary cost:
(b)any failure to comply with the procedural rules and orders of the court:
(c)any misleading or deceitful conduct:
(d)any unreasonable pursuit of 1 or more issues on which the aided person fails:
(e)any unreasonable refusal to negotiate a settlement or participate in alternative dispute resolution:
(f)any other conduct that abuses the processes of the court.
(4)Any order for costs made against the aided person must specify the amount that the person would have been ordered to pay if this section had not affected that person’s liability.
(5)If, because of this section, no order for costs is made against the aided person, an order may be made specifying what order for costs would
have been made against that person with respect to the proceedings if this section had not affected that person’s liability.
…
[10] The Court of Appeal has explained that the purpose of the qualified immunity afforded by s 45 is:2
… to reduce, but not eliminate entirely, the risk that a legally aided person, if unsuccessful in the litigation, may be required to pay substantial costs despite having limited means. This promotes access to justice by ensuring that persons of limited means are not deterred from pursuing or defending claims by the prospect of an obligation to pay costs that they cannot afford to meet.
[11] In circumstances where legal aid is granted after the commencement of a proceeding, but before the fixing of costs, the qualified immunity will attach to steps for which the grant of legal aid was provided.3
[12] The focus of s 45(3) is on any unreasonable conduct on the part of the aided person.4 Misleading and deceitful conduct under s 45(3)(c) must be in respect of conduct in the proceeding.5
[13] If exceptional circumstances exist — that is, circumstances that are “quite out of the ordinary”6 — the Court must only award costs that are reasonable for the aided person to pay having regard to all the circumstances, including the means and conduct of the parties.
Discussion
The period of qualified immunity in this case
[14] I do not accept counsel for Mr O’Donoghue’s submission that Mr Comia was not an aided person in respect of the commencement steps taken by the plaintiff, including the filing of the proceeding and the plaintiff’s application for summary judgment, before Mr Comia was required to file his defence.
2 McCollum v Thompson [2017] NZCA 269, (2017) 23 PRNZ 467 at [77] (footnote omitted).
3 AA v LA [2017] NZHC 646 at [17]; and Gill v Lethlean [2021] NZHC 296, (2021) 25 PRNZ 718
at [26].
4 Ngati Tama Custodian Trustee Ltd v Phillips [2020] NZCA 252, (2020) 25 PRNZ 465 at [2].
5 Green v New Zealand Parole Board [2022] NZHC 764 at [6].
6 Laverty v Para Franchising Ltd [2006] 1 NZLR 650 (CA) at [31].
[15] Mr Comia’s exposure to costs stems from his opposition to Mr O’Donoghue’s application for summary judgment, and Mr Comia’s cross-application for defendant’s summary judgment. Mr Comia moved promptly to apply for legal aid as soon as he was aware of the proceeding. Mr Comia’s grant of aid extends to all steps he has taken in the proceeding to date.
[16] It would be incongruous if Mr Comia is exposed to an award of costs for the commencement steps taken by Mr O’Donoghue before Mr Comia took his first step in the proceeding, when Mr Comia would have qualified immunity if he had filed first and assumed the role of plaintiff, which he could have done.
[17] Where the grant of aid includes the defendant’s initial steps to defend a proceeding and to bring a cross-application for summary judgment, the qualified immunity should extend to costs for the plaintiff’s commencement of the proceeding. Those steps by the plaintiff cannot be logically separated from the filing of the defence, which is subject to the grant of aid.
[18] Therefore, if there are no exceptional circumstances, then Mr Comia’s qualified immunity extends to all steps by both parties in the proceeding to date.
Exceptional circumstances
[19]Mr O’Donoghue submits that the exceptional circumstances in this case are:
(a)Mr Comia’s failure to disclose the agreement when he applied without notice for a grant of letters of administration, which counsel submits was a “fraudulent act”;
(b)what is described as an untenable defence by Mr Comia, relating to his assertion that he had reconciled, or was reconciling, with the deceased before he passed away;
(c)Mr Comia’s opposition to Mr O’Donoghue’s application for discovery of files of the deceased’s former solicitors, and associated with that,
Mr Comia’s failure to voluntarily disclose those documents before the application for discovery was made; and
(d)what is alleged to be a failure by Mr Comia to comply with a discovery order.
Mr Comia’s failure to disclose the agreement in his application for a grant of letters of administration
[20]The relevant ground in s 45(3) is misleading or deceitful conduct.
[21] In the judgment, I held that Mr Comia had elected not to disclose the agreement despite knowing that Mr O’Donoghue was claiming priority to the estate based on the agreement. This was the basis for my finding that it was in the public interest that the grant of letters of administration to Mr Comia in common form be recalled, to ensure the integrity of the Court’s processes.7
[22] Mr Comia’s affidavit in support of his without notice application for a grant of letters of administration to him was prepared by his solicitor and followed the form prescribed by the High Court Rules 2016 (HCR). It included a standard form averment that Mr Comia was entitled to succeed on the intestacy. The standard form affidavit could have, and should have, been adapted to disclose the agreement.
[23] Mr Comia’s failure to disclose the agreement is mitigated by his use of a standard form prescribed by the HCR, and the role played by his solicitor in preparation of the affidavit. I do not consider that Mr Comia acted in an intentionally misleading or deceitful way sufficient to justify a finding of exceptional circumstances.
The reconciliation issue
[24] The issue of whether the deceased and Mr Comia had reconciled after their separation, and shortly before the deceased passed away, was argued by both parties. Both parties adduced evidence on the issue.
7 O’Donoghue v Comia, above n 1, at [58].
[25] The issue of reconciliation was to a large degree irrelevant. The deceased and Mr Comia’s separation, and any subsequent reconciliation, had no effect on Mr Comia’s rights of succession under the Act, unless the Family Court made a separation order. It was common ground that there is no separation order.
[26] Mr Comia’s approach to this issue does not amount to an exceptional circumstance.
The discovery issues
[27] Some of the discovery issues related to the reconciliation issue, and for the same reasons as stated above, Mr Comia’s approach to discovery in respect of the reconciliation issue does not amount to an exceptional circumstance.
[28] Mr O’Donoghue was successful in obtaining a discovery order in respect of other documents contained in the deceased’s lawyer’s file and in the possession, power or control of Mr Comia. These documents related to the agreement and to the sale of a residential property jointly owned by the deceased and Mr Comia.
[29] Mr Comia’s opposition to the application for discovery in respect of those documents, although ultimately unsuccessful, cannot be characterised as quite out of the ordinary. Again, there is no conduct justifying a finding of exceptional circumstances.
Conclusion
[30] Accordingly, there are no exceptional circumstances, and s 45(2) of the LSA prohibits a costs award in Mr O’Donoghue’s favour.
[31] Even if I had found exceptional circumstances in this case, I would have declined to award costs to Mr O’Donoghue under s 45(1), having regard to the circumstances of the case, including the means of the parties. In particular:
(a)there is a genuine issue to be tried regarding the validity of the agreement, which determines priority to the estate;
(b)Mr Comia has provided an affidavit confirming that he has no significant assets and no disposable income; and
(c)Mr O’Donoghue is, in my view, prima facie entitled to have his reasonable costs reimbursed by the deceased’s estate,8 although no such application has yet been made.
[32] Under s 45(5) of the LSA, it is open to the Court to make an order specifying what order for costs would have been made against Mr Comia if s 45 did not apply.
[33] In the judgment, I noted my preliminary view that this would be an order in favour of Mr O’Donoghue for 2B costs.
[34] Counsel for Mr Comia submits that the ultimate determination of the parties’ rights by the Family Court is a relevant factor to take into account when determining costs, and for that reason it would be appropriate to reserve costs. I reject that submission. The cross-applications for a grant of letters of administration arose out of uncertainty regarding the legal effect of the agreement. This uncertainty required a consideration of which party was the appropriate person to administer the estate pending final determination by the Family Court of the effect of the agreement.
[35] Mr O’Donoghue was the successful party, and if s 45(2) of the LSA did not apply, I would have awarded Mr O’Donoghue costs for all steps in the proceeding to date on a 2B basis.
Result
[36]There is no order for costs.
Associate Judge Brittain
8 See Re Paterson [1924] NZLR 441 (SC) at 442–443; Jurisich v Harris [2016] NZHC 1278 at [13]; and Emery v Thorn [2018] NZHC 3164 at [17].
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