COSSIO v COSSIO [2019] NZCA 349

COSSIO v COSSIO [2019] NZCA 349 [1 August 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA112/2019[2019] NZCA 349BETWEEN MATTHEW COSSIOApplicantAND THERESA LAI FONG WONG COSSIORespondentCourt: Courtney and Wild JJCounsel: M W Vickerman for ApplicantR C Knight and T A Chubb for RespondentJudgment:(On the papers)1 August 2019 at 10.30 amJUDGMENT OF THE COURTA The application for leave to appeal is granted.B The respondent is to pay the applicant's costs for a standard applicationon a band A basis with usual disbursements.____________________________________________________________________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, theyshould focus on the following three points.[3] First, whether this Court's decisions in Mills v Dowdall1 and Geddes v Geddes2conflict and, if so, how that conflict should be resolved. Tentatively, it appears the twocases reach opposite results in broadly comparable factual situations. Mills favours aform over substance approach, Geddes the converse. Unfortunately, Mills appears notto 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 appropriateapproach in 2019. We note both cases are cited frequently in Fisher on Matrimonialand Relationship Property.3[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) incircumstances such as those here. What, if any, different or additional meaning dothose words carry, as opposed simply to the word "acquired"? The parties are referredto Venning J's leave judgment, particularly [21]–[24].4 The passage cited in the lastof those paragraphs is headed "Acquired" and does not consider this question.[5] Third, the shares in J Cossio Ltd in issue were purchased by the applicant fromhis father and were paid for (save for the balance of some $73,000 which remainedoutstanding when the parties separated) wholly from dividends paid on the sharesthe applicant held in Permathene Ltd.5 Those Permathene Ltd shares were gifted tothe applicant by the trustees of the J Cossio Trust. No relationship property nor anyactions by the respondent went toward payment for those shares. Given the s 1Mpurpose and s 1N principles of the Act and its scheme, particularly in ss 8, 9, 9A and10, should the result reached in the High Court be upheld?[6] We have awarded costs to the applicant because this application was opposed.Solicitors:Ewart & Ewart, Auckland for ApplicantTGT Legal, Auckland for Respondent1 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), forexample at [11.59]–[11.60] (Mills) and [11.23], [11.43], [11.53] and [11.55] (Geddes).4 Cossio v Cossio [2019] NZHC 367.5 Although we note that the respondent disputes this. We refer to [22] of Venning J's leave judgmentand 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 inthat company. Of course, if those shares are held to be the applicant's separate property, that pointfalls away.