O'Donoghue v Comia - [2023] NZHC 1495

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…

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 1495
Case: [2023] NZHC 1495
Decision Date: 16 June 2023

CaseChat Overview and Summary

The dispute in O’Donoghue v Comia concerns the entitlement of Marc Lester Pansoy Comia to the estate of Alan O’Donoghue, who died intestate. Russell O’Donoghue, the deceased’s brother, has applied for a recall of the letters of administration granted to Mr Comia. The central issue is whether Mr Comia contracted out of his entitlement under the Administration Act 1969 by an agreement dated 6 April 2020. The court was tasked with deciding whether discovery of the file from the solicitors who drafted the agreement, Webb Ross McNab Kilpatrick Limited (WRMK), should be ordered before the cross-applications for summary judgment were heard. The court also had to determine the admissibility of transcripts of communications between the parties.

The court found that discovery of the WRMK file was appropriate in this case as it would assist in determining whether a genuine defence existed and if Mr Comia had contracted out of his entitlement to the estate. The court rejected Mr Comia’s argument that only certain documents relating to the conveyancing of the jointly owned property were relevant. The entire file was ordered to be discovered as it related to the period during which the deceased and Mr Comia agreed terms for the sale of their jointly owned residential property and executed the settlement agreement. The court also determined that the admissibility of the transcripts of the communications between the parties would be decided at the time of the hearing of the summary judgment applications.

The court ordered that Mr Comia provide discovery of all documents on the WRMK file related to the sale of the jointly owned property and the settlement agreement by 30 June 2023. The admissibility of the transcripts of the communications between the parties was adjourned to be determined at the hearing of the cross-applications for summary judgment, which was set down for 21 September 2023. The parties were required to file written submissions and bundles of authorities before the hearing.

Orders