O'Donoghue v Comia
[2023] NZHC 1495
•16 June 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2023-404-286
[2023] NZHC 1495
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:
16 June 2023
MINUTE OF ASSOCIATE JUDGE BRITTAIN
This judgment was delivered by me on 16 June 2023 at 10.00 am.
Pursuant to Rule 11.5 of the High Court Rules.
…………………..
Registrar/Deputy Registrar
Solicitors / Counsel: Thomson Wilson, Whangārei Ryken & Associates
O’DONOGHUE v COMIA [2023] NZHC 1495 [16 June 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 two later separated but the date of separation is in dispute. It appears to have been some time in 2019. There is also a dispute regarding whether the deceased and Mr Comia reconciled in 2021.
[3] Succession on an intestacy is governed by the priorities in s 77 of the Administration Act 1969 (the Act). A spouse has priority to the estate, unless the Family Court has made a separation order. There is no separation order in the present case.
[4] On 1 June 2022, Mr Comia applied for a grant of letters of administration under the Act. On 20 September 2022, the Court granted letters of administration to Mr Comia on the basis that he is beneficially entitled to the deceased’s estate under s 77 of the Act.
[5] The plaintiff, Russell O’Donoghue, is the deceased’s brother. Mr O’Donoghue has applied for a recall of the letters of administration granted to Mr Comia, alleging that Mr Comia is not beneficially entitled to the deceased’s estate, as a consequence of an agreement between the deceased and Mr Comia dated 6 April 2020 (the settlement agreement).
[6] The deceased is not survived by any children. The deceased’s mother has disclaimed any interest in the deceased’s estate. The parties agree that if Mr Comia has no beneficial interest in the estate, then Mr O’Donoghue is the beneficiary and entitled to a grant of letters of administration.
[7] The settlement agreement was drafted by a firm of solicitors, Webb Ross McNab Kilpatrick Limited (WRMK). The settlement agreement was drafted and executed after the deceased and Mr Comia sold a jointly owned residential property. WRMK completed the conveyancing. Mr Comia contends that the settlement agreement is unenforceable.
[8] Mr O’Donoghue has applied for summary judgment. Mr Comia opposes that application and has made a cross-application for defendant’s summary judgment sustaining the grant of letters of administration to him. The parties have filed affidavits, including exhibits that relate to the settlement agreement and to the history of the relationship between the deceased and Mr Comia.
[9] WRMK’s file in respect of the conveyancing of the jointly held property and the settlement agreement is now in the control or possession of Mr Comia. Mr O’Donoghue has filed an application for an order that Mr Comia provide discovery of the WRMK file before the cross-applications for summary judgment are heard. The application also seeks an order regarding the admissibility of transcripts of a Zoom call between a solicitor engaged by Mr O’Donoghue and Mr Comia, and telephone calls between Mr O’Donoghue and Mr Comia. Mr Comia opposes all orders.
[10] This judgment determines the applications for discovery and admissibility orders.
The application for discovery of the WRMK file
Legal principles
[11] Discovery is rarely ordered before disposal of an application for summary judgment. However, discovery before summary judgment may be appropriate in cases where the Court would otherwise have difficulty in deciding whether a genuine defence exists, and there are grounds to believe that discovery would assist the Court in coming to the proper conclusion.1 These cases are extraordinary.2
The issues in the substantive proceeding
[12] The primary issue in the substantive proceeding, and therefore in the cross- application for summary judgment, is whether Mr Comia has contracted out of his entitlement to the deceased’s estate which arises under s 77 of the Act.3
1 NZI Bank Ltd v Philpott (1988) 1 PRNZ 560 (HC) at 565.
2 DFC New Zealand Ltd v Tapp (1991) 3 PRNZ 543 (HC) at 545.
3 Contracting out is permissible: see Warrender v Warrender [2013] NZHC 787, [2013] NZAR 603.
[13] The cross-applications for summary judgment will require the Court to determine:
(a)whether it is reasonably arguable that the settlement agreement, as properly interpreted, compromises Mr Comia’s entitlement to any interest in the deceased’s estate; and
(b)whether it is reasonably arguable that the settlement agreement is enforceable, or conversely, unenforceable.
[14] The latter will require a consideration of all arguments available to Mr Comia to support his contention that the settlement agreement is void or voidable, including arguments regarding compliance with the formalities prescribed by the Property (Relationships) Act 1976. This engages contested factual issues regarding the dates and duration of the separation.
[15] The existence of issues arising from the impeachment of a settlement agreement in a disputed factual matrix is not a promising start for cross-applications for summary judgment.
The discovery issues
[16] Mr Comia does not oppose discovery of documents relating to the settlement agreement. However, counsel for Mr Comia submits that all communications between the deceased and his advisors relating to the quality of the marriage relationship, the spouses’ plans and their preparations for a dissolution are irrelevant.
[17] As a preliminary observation, and without knowing the date range of the documents on the WRMK file, it is difficult to see any basis for omitting discovery of any part of that file that relates to the period during which the deceased and Mr Comia agreed terms for the sale of their jointly owned residential property and executed the subsequent settlement agreement.
The affidavit evidence
[18] Mr O’Donoghue has produced a copy of the settlement agreement, but otherwise his affidavit evidence is confined to a general narrative of his recollection of the history of the relationship between the deceased and Mr Comia, and the events that have transpired since the deceased passed away.
[19] Mr Comia’s affidavit provides a competing narrative, and produces a limited selection of documents from the WRMK file, including:
(a)a deed between the deceased and Mr Comia dated 9 May 2019, which recorded the agreed terms for the sale of the jointly owned residential property;
(b)emails between a solicitor from WRMK and the deceased during the negotiation of the settlement agreement that followed; and
(c)emails between the solicitor from WRMK and the deceased during the negotiation of the settlement agreement.
[20] Andrew Easterbrook is a director of WRMK, and the solicitor that provided the legal services on the firm’s behalf. He has affirmed an affidavit dated 20 April 2023, confirming that WRMK acted on behalf of the deceased and Mr Comia regarding the sale of their jointly owned residential property.
[21] However, Mr Easterbrook states that the firm did not act for, nor advise, Mr Comia in relation to the settlement agreement. The copy of the settlement agreement produced in evidence contains an annotation which suggests that it was prepared by Mr Easterbrook. Mr Comia has produced emails from Mr Easterbrook to Mr Comia that relate to the settlement agreement. It is unclear whether WRMK acted only for the deceased in respect of the settlement agreement, or for both parties.
Discussion
[22] Mr O’Donoghue argues that the entire WRMK file in respect of the sale of the jointly owned residential property and the subsequent settlement agreement is relevant to the substantive issues. I agree, irrespective of whether WRMK was acting only for Mr Comia in respect of the settlement agreement.
[23] Counsel for Mr O’Donoghue submits that the deceased and Mr Comia held joint privilege in respect of the WRMK file, governed by s 66 of the Evidence Act 2006 which provides:
66 Joint and successive interests in privileged material
(1)A person who jointly with some other person or persons has a privilege conferred by any of sections 54 to 60 and 64 in respect of a communication, information, opinion, or document—
(a)is entitled to assert the privilege against third parties; and
(b)is not restricted by any of sections 54 to 60 and 64 from having access or seeking access to the privileged matter; and
(c)may, on the application of a person who has a legitimate interest in maintaining the privilege (including another holder of the privilege), be ordered by a Judge not to disclose the privileged matter in a proceeding.
(2)On or after the death of a person who has a privilege conferred by any of sections 54 to 57 in respect of a communication, information, opinion, or document, the personal representative of the deceased person or other successor in title to property of the deceased person—
(a)is entitled to assert the privilege against third parties; and
(b)is not restricted by any of sections 54 to 57 from having access or seeking access to the privileged matter.
(3)However, subsection (2) applies only to the extent that a Judge is satisfied that the personal representative of other successor in title to property has justifiable interest in maintaining the privilege in respect of the communication, information, opinion, or document.
(4)A personal representative of a deceased person who has a privilege conferred by any of sections 54 to 57 in respect of a communication, information, opinion, or document and any other successor in title to property of a person who has such a privilege, may, on the application of a person who has a legitimate interest in maintaining the privilege (including another holder of the privilege), be ordered by a Judge not to disclose the privileged matter in a proceeding.
[24] Counsel for Mr Comia has not raised any issue regarding privilege in respect of the WRMK file. Any privilege that exists in respect of the conveyancing would be held jointly. There is no application before the Court under s 66(1)(c) for an order that the WRMK file should not be disclosed in this proceeding.
[25] If WRMK acted for the deceased and Mr Comia in respect of the settlement agreement, then any privilege is joint. If WRMK did not act for Mr Comia in respect of the settlement agreement, then Mr Comia cannot assert any privilege in respect of the relevant documents. Mr Comia has not advanced any argument that the administrator of the deceased’s estate would have a justifiable interest in maintaining any privilege held solely by the deceased. The entire WRMK must be discovered.
The application for admissibility orders
[26] The telephone discussions between Mr O’Donoghue and Mr Comia took place on 3 January 2021 and 12 October 2021.
[27] The Zoom call between the lawyer instructed by Mr O’Donoghue after the deceased passed away, Katerina Hatzidakis, and Mr Comia took place on 17 March 2022.
[28] Mr Comia opposes the admission of all three transcripts on the basis that they are irrelevant.
[29] The admissibility of this evidence can be determined when the cross- applications for summary judgment are heard.
Orders
[30] The defendant shall provide discovery of all documents on the file or files of WRMK in respect of the following matters or transactions:
(a)the sale of the property at 15 Old Parua Bay Road, Parahaki, Whangārei in 2020;
(b)the settlement agreement between the defendant and the deceased dated 6 April 2020;
including all documents relevant to all attendances by WRMK from receipt of initial instruction in respect of the sale of the property at 15 Old Parua Bay Road until instructions from either the plaintiff or the deceased ended following execution of the settlement agreement dated 6 April 2020.
[31] Discovery shall be provided by the provision of an affidavit of documents and electronic copies of open documents by 30 June 2023. The listing and exchange protocol in pt 2 of sch 9 to the High Court Rules 2016 shall apply.
[32] The plaintiff shall file and serve any further affidavit arising from the discovery, strictly limited to matters raised by the discovery, by 14 July 2023.
[33]The defendant shall file any affidavit strictly in reply by 28 July 2023.
[34] The plaintiff’s application for orders regarding the admissibility of exhibits P, AB and AC annexed to the affidavit of Mr O’Donoghue sworn 25 January 2023 is adjourned to be determined when the applications by the plaintiff and the defendant for summary judgment are heard.
[35] The applications for summary judgment shall be heard together, and are set down for a half day fixture on 21 September 2023 at 10 am.
[36] The plaintiff shall file written submissions and authorities, and a paginated bundle of pleadings and affidavits, 10 working days before the hearing. The submissions shall address the plaintiff’s application for summary judgment and the defendant’s application for summary judgment.
[37] The defendant shall file written submissions and a bundle of authorities five working days before the hearing. The written submissions shall address the plaintiff’s application for summary judgment and the defendant’s application for summary judgment.
[38]Leave is reserved applied for the parties to apply for further directions.
Associate Judge Brittain
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