Cowan v Cowan

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 130/2021
[2021] NZSC 185

BETWEEN	CHRISTINE MARAMA COWAN First Applicant TE RAHUI JOHN COWAN Second Applicant
AND	JOHN ARTHUR COWAN First Respondent KURT THOMAS GIBBONS AND 170 QUEENS DRIVE LIMITED Second Respondents

Hearing:	15 December 2021
Court:	O’Regan, Ellen France and Williams JJ
Counsel:	J Mason for Applicants R C Laurenson and C D Batt for First Respondent C T Gudsell QC and M R C Wolff for Second Respondents
Judgment:	20 December 2021

JUDGMENT OF THE COURT

ALeave to appeal is granted (Cowan v Cowan [2021] NZCA 463).

BThe approved question is whether the Court of Appeal was correct to dismiss the appeal to that Court.

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REASONS

The parties are asked to address in their appeal submissions whether the Court of Appeal was correct to exclude from its consideration factors other than the amount made available to support the obligations of the applicants under the undertaking required by the earlier Court of Appeal decision.[1]
[1]Cowan v Cowan [2021] NZCA 31.
We direct the applicants to file and serve on or before 22 December 2021 an affidavit from one of the applicants setting out the amount they can provide to substantiate their undertaking and what they propose to do with the amount to ensure it is available to the first respondent in the event that the applicants’ substantive claim fails.
We direct counsel for the applicants to advise the Court no later than 23 December 2022 and again by no later than 31 January 2022 of the steps taken to ensure the substantive proceedings are heard and determined promptly. The Court expects the applicants to seek a priority fixture in the High Court.
We ask the Registrar of this Court to set the appeal down for hearing in February 2022. We authorise the Registrar to abbreviate the normal timetable for the filing of submissions to ensure a hearing in February can occur.

Solicitors:
Phoenix Law Ltd, Wellington for Applicants
Batt Law, Masterton for First Respondent
Morrison Kent, Wellington for Second Respondents

CaseChat Overview and Summary

In Cowan v Cowan, the Supreme Court of New Zealand was asked to determine whether the Court of Appeal was correct in dismissing an appeal that had been brought by Christine Marama Cowan and Te Rahui John Cowan against John Arthur Cowan and Kurt Thomas Gibbons and 170 Queens Drive Limited. The applicants sought to appeal against a decision of the Court of Appeal which had dismissed their appeal against the High Court’s determination that there was no basis for the applicants to challenge the enforceability of a settlement agreement. The appeal to the Supreme Court centred on the Court of Appeal's refusal to consider factors other than the amount of money available to support the applicants' obligations under a specific undertaking. The applicants argued that the Court of Appeal should have considered these additional factors in its decision-making process.

The legal issue before the Supreme Court was whether the Court of Appeal was correct in its approach by focusing solely on the monetary aspect of the undertaking and excluding other relevant factors. The Court had to determine whether the exclusion of these factors was appropriate or if it represented a failure to fully consider the circumstances of the case. The applicants contended that the Court of Appeal’s narrow focus was erroneous and that a broader consideration of the undertaking’s terms and the applicants' ability to meet them was necessary.

The Supreme Court held that leave to appeal should be granted and directed that the applicants file an affidavit detailing the amount they could provide to support the undertaking and their plans to ensure the funds are available to the first respondent if the substantive claim fails. Additionally, the Court mandated that counsel for the applicants report on steps taken to expedite the substantive proceedings and set the appeal for hearing in February 2022, authorizing the Registrar to adjust the usual timetable for submissions accordingly. This decision allowed the applicants to address the specific concerns raised by the Court of Appeal and to ensure their appeal would be heard promptly.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established