Cossio v Cossio

[2019] NZCA 349

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA112/2019
 [2019] NZCA 349

BETWEEN	MATTHEW COSSIO Applicant
AND	THERESA LAI FONG WONG COSSIO Respondent

Court:	Courtney and Wild JJ
Counsel:	M W Vickerman for Applicant R C Knight and T A Chubb for Respondent
Judgment: (On the papers)	1 August 2019 at 10.30 am

JUDGMENT OF THE COURT

A        The application for leave to appeal is granted.

BThe respondent is to pay the applicant’s costs for a standard application on a band A basis with usual disbursements.

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REASONS OF THE COURT

(Given by Wild J)

1. As the Court is granting leave, reasons are not required. 

2. For the benefit of the parties we indicate that, in arguing this appeal, they should focus on the following three points. 

3. First, whether this Court’s decisions in Mills v Dowdall[1] and Geddes v Geddes[2] conflict and, if so, how that conflict should be resolved.  Tentatively, it appears the two cases reach opposite results in broadly comparable factual situations.  Mills favours a form over substance approach, Geddes the converse.  Unfortunately, Mills appears not to have been cited to the Court in Geddes, or at least Geddes makes no reference to it.  In addressing these two cases the parties should consider which is the appropriate approach in 2019.  We note both cases are cited frequently in Fisher on Matrimonial and Relationship Property.[3]

   [1]Mills v Dowdall [1983] NZLR 154 (CA).

   [2]Geddes v Geddes [1987] 1 NZLR 303 (CA).

   [3]RL Fisher (ed) Fisher on Matrimonial and Relationship Property (online ed, LesisNexis), for example at [11.59]–[11.60] (Mills) and [11.23], [11.43], [11.53] and [11.55] (Geddes).

4. Second, what meaning is to be given to the words in s 9(2) of the Property (Relationships) Act 1976 “… acquired out of separate property” (our emphasis) in circumstances such as those here.  What, if any, different or additional meaning do those words carry, as opposed simply to the word “acquired”?  The parties are referred to Venning J’s leave judgment, particularly [21]–[24].[4]  The passage cited in the last of those paragraphs is headed “Acquired” and does not consider this question.

   [4]Cossio v Cossio [2019] NZHC 367.

5. Third, the shares in J Cossio Ltd in issue were purchased by the applicant from his father and were paid for (save for the balance of some $73,000 which remained outstanding when the parties separated) wholly from dividends paid on the shares the applicant held in Permathene Ltd.[5]  Those Permathene Ltd shares were gifted to the applicant by the trustees of the J Cossio Trust.  No relationship property nor any actions by the respondent went toward payment for those shares.  Given the s 1M purpose and s 1N principles of the Act and its scheme, particularly in ss 8, 9, 9A and 10, should the result reached in the High Court be upheld?

   [5]Although we note that the respondent disputes this.  We refer to [22] of Venning J’s leave judgment and to [19] of the respondent’s submissions in opposition to the leave application.  The respondent’s point is that dividends from J Cossio Ltd were also used to pay for the shares in that company.  Of course, if those shares are held to be the applicant’s separate property, that point falls away.

6. We have awarded costs to the applicant because this application was opposed.

Solicitors:
Ewart & Ewart, Auckland for Applicant
TGT Legal, Auckland for Respondent