Cossio v Cossio - [2018] NZHC 2779

NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B,

11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-000814

[2018] NZHC 2779

IN THE MATTER of an appeal under s 39 of the Property (Relationships) Act 1976 and s 124 of the District Courts Act 2016

BETWEEN

THERESA LAI FONG WONG COSSIO

Appellant

AND

MATTHEW COSSIO

Respondent

Hearing: 20 September 2018

Appearances:

R C Knight and T Chubb for Appellant M Vickerman for Respondent

Judgment:

26 October 2018

JUDGMENT OF VENNING J

This judgment was delivered by me on 26 October 2018 at 3.50 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: TGT Legal, Auckland
Ewart & Ewart, Auckland

Copy to: M W Vickerman, Auckland

COSSIO v COSSIO [2018] NZHC 2779 [26 October 2018]

Introduction

[1] Theresa Cossio and Matthew Cossio separated finally on 27 August 2009 and their second marriage was dissolved on 11 April 2013. While they were able to agree on most issues regarding relationship property, one issue they could not agree on was whether the shareholding held by Mr Cossio in J Cosio Ltd (JCL) and Permathene Ltd (Permathene) was Mr Cossio’s separate property or whether Ms Cossio had a claim against the shares.

[2] In a judgment delivered on 28 March 2018 Judge S J Maude held Mr Cossio’s shares in JCL and Permathene were his separate property and Ms Cossio’s claims to an interest in the shares under s 9A and s 17 of the Property (Relationships) Act 1976 (the Act) failed.1

[3] In a subsequent decision Judge Maude awarded costs in Mr Cossio’s favour in the sum of $46,575 together with disbursements of $12,600.2

[4] Ms Cossio initially appealed against the decision that she had no interest in the shares in JCL and Permathene and then, by an amended notice of appeal, appealed the costs decision also.

Relationship background

[5] In 1979 the parties married for the first time. The first marriage was dissolved in January 1982.

[6] In October 1985 the parties married for the second time. In May 1986 they purchased the first family home at 31 Sentinel Road, Herne Bay. Both contributed to the purchase price.

[7] In November 1986 the parties’ first child was born. Mr Cossio was unemployed at the time.

1 Cossio v Cossio [2018] NZFC 2065.
2 Cossio v Cossio [2018] NZFC 3900.

[8] In December 1990 Mr Cossio acquired a 51 per cent shareholding in Permathene and JCL. In October 1991 the parties’ second child was born.

[9] It is accepted that Mr Cossio suffered from addiction to substances. The addiction was cured by 1992.

[10] In 1992 the parties sold 31 Sentinel Road and purchased 41 Sentinel Road, which became the family home.

[11] In July 2000 Permathene Pty Ltd was incorporated…

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 Cossio v Cossio

Details

AGLC: Cossio v Cossio [2018] NZHC 2779
Case: [2018] NZHC 2779
Decision Date: 26 October 2018

CaseChat Overview and Summary

Theresa Cossio appealed against the Family Court decision that the shares held by Matthew Cossio in J Cosio Ltd and Permathene were his separate property. She also appealed the costs decision. Matthew Cossio cross-appealed the decision, but later abandoned his cross-appeal. The High Court allowed the appeal. The shares in J Cosio Ltd were held to be relationship property. The $30,000 interest free loan to Permathene and the portion of the undrawn salary for the year ended 31 March 2010 sustained the value of the Permathene shares. To that extent, relationship property was applied to sustain the separate property of Matthew Cossio. The Court remitted the matter to the Family Court to determine the consequences of the outcome of the appeal. The costs award in the Family Court must also be set aside on the basis of the success Theresa Cossio had on this appeal. The costs in the Family Court are remitted to the Family Court to be re-assessed overall in light of the outcome of the appeal and this judgment.

Orders