O'Donoghue v Comia - [2023] NZHC 2735

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-000286

[2023] NZHC 2735

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: 21 September 2023

Appearances:

D Foster / T Andrews for the Plaintiff D Ryken / R Grand for the Defendant

Judgment:

29 September 2023

JUDGMENT OF ASSOCIATE JUDGE BRITTAIN

This judgment was delivered by me on 29 September 2023 at 4 pm.
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 2735 [29 September 2023]

Introduction

[1] Alan O’Donoghue (the deceased) died intestate in late December 2021. He is survived by his husband, the defendant, Marc Comia.

[2] The deceased and Mr Comia married in 2016. The couple later separated but the precise date of separation is in dispute. It appears to have been some time in 2019. There is no separation order. There is a dispute regarding whether they reconciled in 2021.

[3] The deceased is not survived by any children. The deceased’s mother has disclaimed any interest in the deceased’s estate.

[4] On 20 September 2022, the Court granted letters of administration to Mr Comia.

[5] The plaintiff, Russell O’Donoghue, is the deceased’s brother. Mr O’Donoghue claims that Mr Comia is not beneficially entitled to the deceased’s estate, and therefore not entitled to be administrator, due to a settlement agreement between the deceased and Mr Comia dated 6 April 2020 (the agreement).

[6] Mr Comia contends that the agreement, as properly interpreted, does not contract out of his statutory beneficial interest in the estate that arises under s 77 of the Administration Act 1969, or alternatively, that the agreement is unenforceable because it does not satisfy the requirements of s 21F of the Property (Relationships) Act 1976 (the PRA).

[7] Mr O’Donoghue now applies, by way of summary judgment, for recall of the grant of letters of administration to Mr Comia and for a fresh grant of letters of administration to Mr O’Donoghue. Mr Comia opposes that application and applies for defendant’s summary judgment sustaining the grant of letters of administration to him.

[8] The parties agree that if Mr Comia has no beneficial interest in the estate, then Mr O’Donoghue is the beneficiary and the person entitled to a grant of letters of administration.

[9] The cross-applications for summary judgment raise issues of fact and law, which I address in the following order:

(a)the jurisdiction to recall a grant of letters of administration made in common form;

(b)contracting out of a statutory beneficial interest in an intestate estate that arises under s 77 of the Administration Act;

(c)the interpretation of the agreement;

(d)the requirements of s 21F of the PRA; and

(e)the appropriate relief in this case.

The jurisdiction to recall a grant of letters of administration in…

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 2735
Case: [2023] NZHC 2735
Decision Date: 29 September 2023

CaseChat Overview and Summary

The case of O’Donoghue v Comia involved a dispute over the administration of the estate of Alan O’Donoghue, who died intestate in December 2021. Alan was survived by his husband, Marc Comia, and his brother, Russell O’Donoghue. Russell, the plaintiff, contested Marc’s entitlement to the estate based on a settlement agreement between Alan and Marc dated 6 April 2020. The crux of the dispute was whether Marc had contracted out of his statutory beneficial interest in Alan’s estate under s 77 of the Administration Act 1969, or if the agreement was unenforceable due to non-compliance with the requirements of s 21F of the Property (Relationships) Act 1976.

The High Court was tasked with determining several legal issues, including the jurisdiction to recall a grant of letters of administration in common form, the validity of contracting out of a statutory beneficial interest under s 77, the interpretation of the agreement between Alan and Marc, the requirements of s 21F of the PRA, and the appropriate relief to be granted. The Court found that while the agreement between Alan and Marc aimed for a full and final settlement of property claims, it did not explicitly state that it would apply upon one of the parties’ death. However, the Court held that the agreement’s broad reference to “property claims” under any statutory enactment included Marc’s rights under s 77, effectively contracting out of his statutory entitlement to the estate.

The Court also found that the agreement did not comply with the formalities required by s 21F of the PRA, rendering it void. Nevertheless, the Court held that the agreement could be validated under s 21H of the PRA if the Family Court found that the non-compliance did not materially prejudice any party’s interests. Consequently, the Court ruled that the grant of letters of administration to Marc should be recalled, and Russell should be appointed as the administrator. The Court directed Russell to apply to the Family Court for a declaration under s 21H regarding the agreement’s validity.

In conclusion, the Court granted the plaintiff’s application for summary judgment, dismissed the defendant’s application, recalled the grant of letters of administration to the defendant, appointed the plaintiff as the administrator of the deceased’s estate, and directed the plaintiff to seek a declaration in the Family Court. The Court also made preliminary directions regarding the assessment of costs.

Orders