CHESTERFIELDS PRESCHOOLS LIMITED & ORS V THE COMMISSIONER OF INLAND REVENUE COA CA582/2012

CHESTERFIELDS PRESCHOOLS LIMITED & ORS V THE COMMISSIONER OF INLAND REVENUE COA CA582/2012 [7 March 2013]IN THE COURT OF APPEAL OF NEW ZEALANDCA582/2012[2013] NZCA 44AND BETWEEN CHESTERFIELDS PRESCHOOLSLIMITED & ORSAppellantsAND THE COMMISSIONER OF INLANDREVENUERespondentHearing: 24 October 2012Court: Randerson, Stevens and Wild JJCounsel: D J Hampton appearing for himself (as second appellant) and by leavefor the corporate and other appellantsJ C Pike and S Kinsler for respondentJudgment: 7 March 2013 at 11 amJUDGMENT OF THE COURTA The appeal is dismissed.B The appellants are to pay the respondent's costs for a standard appeal ona band B basis and usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Wild J)Introduction[1] By notice filed on 17 September 2012 the appellants (we will refer to them as Chesterfields) appeal against a costs judgment of Fogarty J delivered on 29 June 2012.[2] In their notice of appeal Chesterfields say this costs judgment "was recalled by Minute dated 10 July, and re-delivered on 30 August". We do not have a copy ofthe Judge's 10 July Minute. However, Fogarty J's 30 August judgment was termed by the Judge "Judgment on costs (No 2)" and is not expressed to be in substitutionfor his earlier, 29 June, judgment. Rather, it corrects arithmetical mistakes in the first judgment, pursuant to leave earlier reserved, and entered judgment for $229,889.20 costs and undisputed disbursements in favour of Chesterfields against the Commissioner of Inland Revenue (the CIR).[3] Because it is reasoning in Fogarty J's earlier, 29 June, judgment that is challenged, we treat this appeal as one against that judgment.[4] We have referred above to the fact that Mr Hampton was given leave to appear for the corporate and other appellants in this case. Such leave was granted only for the purposes of this appeal and another (CA556/2012) argued at the same time. We deal with the question of leave in more detail in the judgment in the latter case, to be delivered shortly.Background[5] That 29 June judgment is more easily understood if we first chronicle the relevant events in this litigation. This is best done in tabular format:Date Event15.12.06 Fogarty J delivers judgment in Chesterfields Preschools Ltd & Ors vCIR CIV-2004-409-1596, 15 December 2006. Reported at (2007) 23 NZTC 21,125. Describes (at [39]) Chesterfields' proceeding as essentially an application for judicial review, notwithstanding the fact that the second amended statement of claim deleted the reference in the intituling to the Judicature Amendment Act 1972. Granted Chesterfields' relief against the CIR. Reserved costs.25.11.08 Fogarty J delivers judgment in Chesterfield Preschools Ltd & Ors vCIR CIV-2008-409-722. Reported at (2009) 24 NZTC 23,148. Successful second application by Chesterfields for judicial review. Various forms of relief granted to Chesterfields. Court orders:[118] 6. [Chesterfields] are entitled to costs.7. Leave is reserved to file submissions on thetimetable set out in this judgment for the purpose ofresolving costs issues if costs are not agreed in the light ofthe indications given in the reasoning above.1.5.09 Fogarty J delivers judgment in Chesterfield Preschools Ltd & Ors vCIR CIV-2008-409-722. Reported at (2009) 24 NZTC 23,504. Thisjudgment awarded Chesterfields:Costs of $97,920, plus disbursements to be fixed by theRegistrar, in respect of the first judicial review proceeding(judgment 15 December 2006). The costs awardedincorporated a 20 per cent reduction to reflect the degree towhich Chesterfields had succeeded, and the disbursements tobe fixed were to incorporate a similar reduction.Total costs and disbursements of $88,818.78 in respect of itssecond judicial review proceeding (judgment 25 November2008). The costs component incorporated a 75 per centuplift on scale.12.5.09 The CIR appealed the costs judgment25.8.09 Court of Appeal, on the CIR's application, stay Fogarty J's costsjudgment of 1.5.09: CIR v Chesterfields Preschools Ltd & Ors[2009] NZCA 373. Reported at (2009) 24 NZTC 23,750.31.8.10 Court of Appeal gave judgment in CIR v Chesterfields PreschoolsLtd & Ors [2010] NZCA 400. Reported at (2010) 24 NZTC 24,500.This dealt with the CIR's judicial review appeal (CA800/2008),costs appeal (CA271/2009) and Papprill and Basecorp Loan appeals(CA607/2008 and CA156/2010 respectively). Dismissed judicialreview appeal. Allowed costs appeal, remitting the question of coststo the High Court to be dealt with in accordance with the judgment.Allowed the Papprill and Basecorp loan appeals. Ordered the CIRto pay costs and disbursements to Chesterfields on the judicialreview appeal, and Chesterfields to pay the CIR costs anddisbursements on the costs appeal and the Papprill loan andBasecorp loan appeals.16.12.10 Supreme Court declined Chesterfields' application for leave toappeal from Court of Appeal's 31.8.10 judgment: ChesterfieldsPreschools Ltd v CIR [2010] NZSC 155; (2011) 25 NZTC 25,136.21.2.11 Chesterfields formally applied to the High Court for thereconsideration of costs directed by the Court of Appeal tocommence. Chesterfields also applied for indemnity costs, whichthe CIR opposed on the grounds that they had not been awarded byFogarty J or considered by the Court of Appeal.12.9.11 (atChristchurch),30.11.11 (atAshburton)and 27.6.12(at Auckland)Hearings before Fogarty J, dealing with the reconsideration of costs.23.12.11 Chesterfields filed a notice of appeal from Fogarty J's 30 November2011 "costs review decision" (this appeal seems to be misconceivedand was not pursued).29.6.12 Fogarty J delivered judgment in Chesterfields Preschools Ltd & Orsv CIR [2012] NZHC 1532. Reported at (2012) 25 NZTC 26,204.Fogarty J fixed costs and undisputed disbursements at a total of$261,089.20. Awarded judgment to Chesterfields in that sum.Reserved leave to make further application for additionaldisbursements, and to apply to correct any arithmetical mistakes.30.8.12 Fogarty J delivered judgment (No 2) in Chesterfields Preschools Ltd& Ors v CIR [2012] NZHC 2216. On the CIR's application,opposed by Chesterfields, this judgment corrected a number ofarithmetical errors. Directed that judgment could now be entered infavour of Chesterfields against the CIR in the sum of $229,889.20.Further reserved Chesterfields' claim for additional disbursements.Concluded with the following:[18] I note for completeness that the parties still havean unresolved issue of whether or not the Commissionerwill provide an allowance for interest on all or part of thatjudgment based on an award that could have been made bythe Court of Appeal when it was seized of the matterbefore it remitted the remaining issues back to this Court.The judgment under appeal[6] In the 29 June 2012 judgment under appeal Fogarty J said this:Interest[17] The plaintiffs seek an award of interest from the time that costs were incurred in addition to the entitlement under the Judicature Act 1908 to interest from the date of judgment. There is no doubt that the Court of Appeal has the power to do that. Some decisions of the High Court, without the benefit of argument, have done so. Asher J, in his decision in Fullers Bay of Islands Ltd v Otehei Bay Holdings Ltd HC Auckland CIV-2009-404- 7207, 21 December 2011 records these decisions which have so awarded interest, and the special power of the Court of Appeal to award interest, and, in an analysis with which I agree, concludes that there is no jurisdiction in the High Court to award interest on costs prior to there being an order to pay a specific amount for costs.[18] In further written submissions following the day of the hearing, Mr Kinsler [counsel for the CIR] advised he had been unable to identify any general power conferred by the Court of Appeal (Civil) Rules for the High Court to assume the Court of Appeal's powers in a review such as this.Furthermore he submitted that the issue cannot be removed back to the Court of Appeal. I accept those submissions.[19] I note that, very properly, Mr Kinsler has acknowledged that there is merit in the argument for interest. The plaintiffs are entitled to a substantialaward of costs, and always have been. The only issue has been as to the quantum, since the judgment of the Court of Appeal on 31 August 2010. Had the appeal against the High Court decision of 1 May 2009 been resolved by the Court of Appeal rather than sent back to the High Court, the Court of Appeal had the power to award interest at certain dates, when the costs arose.[20] Mr Kinsler has advised the Court:Recognising difficulties with interest and the length of time since the May 2009 costs judgment, the Commissioner offered to settle on a general basis by letter of 5 April 2012.[21] It may well be that this particular issue can still be resolved on the merits between the Commissioner and the plaintiffs. Alternatively, Mr Hampton has a right of appeal against my finding, following Asher J, that this Court has no power to award such interest.[7] In its notice of appeal Chesterfields alleges that Fogarty J was in error, in [19] of that passage, in holding that the High Court, unlike the Court of Appeal, did not have jurisdiction to award interest on costs.1 Chesterfields seeks from this Court either an order referring the interest award back to the High Court for determination,or a judgment from this Court allowing interest on the costs pursuant to "the generalpower conferred on the Court of Appeal under the Court of Appeal Rules (2005)".Chesterfields' argument[8] Mr Hampton's argument for Chesterfields in support of the costs award carrying interest over the approximately five and a half years' gap from judgment to award can be summarised thus:(a) Chesterfields' claim for interest on the costs Fogarty J had awarded it is made on the basis of the equitable principles of fairness, conscience and hardship, applied by this Court in Paper Reclaim Ltd v Aotearoa International Ltd.2(b) On the basis of Paper Reclaim, Chesterfields claims interest on costs from the date of Fogarty J's two successive judgments on1 The reference to Fogarty J finding that the High Court did not have jurisdiction to award intereston costs should be to [17].2 Paper Reclaim Ltd v Aotearoa International Ltd [2007] NZCA 544, (2007) PRNZ 743.Chesterfields' applications for judicial review (15 December 2006; 25 November 2008) or, alternatively, from 1 May 2009 when Fogarty J awarded Chesterfields costs on its first application for judicial review.(c) The judgment of Asher J in Fullers Bay of Islands Ltd v Otehei Bay Holdings Ltd,3 followed by Fogarty J, is in direct conflict with the principles referred to in (a).(d) The judgment in Fullers erred in:(i) Holding that the judgment of the House of Lords in Hunt v RM Douglas (Roofing) Ltd4 is authority that courts of the United Kingdom lacked inherent jurisdiction to award interest prior to the Judgments Act 1838 (UK).(ii) Holding that s 16 of the Judicature Act 1908 did not devolve on the New Zealand High Court any statutory jurisdiction of the UK courts, but only the subsisting, separate residual jurisdiction of those courts.(iii) Not considering whether s 16 operates to give the High Court jurisdiction to award interest on debts as a form of equitable discretionary compensation.(e) The High Court's equitable jurisdiction extends to the power to award compensation5 and, in appropriate cases, interest, even though interest may not have been recoverable at law.63 Fullers Bay of Islands Ltd v Otehei Bay Holdings Ltd HC Auckland CIV-2009-404-7207,21 December 2011 [Fullers].4 Hunt v RM Douglas (Roofing) Ltd [1990] 1 AC 398 (HL).5 Day v Mead [1987] 2 NZLR 443 (CA) at 450 per Cooke P and 460–462 per Somers J.6 ICF Spry The Principles of Equitable Remedies (8th ed, Sweet & Maxwell, London, 2010) at623, in particular footnote 4.(f) The historical difficulties in Britain in enforcing decrees of the courts of equity are addressed in New Zealand by ss 2, 16 and 99 of the Judicature Act.(g) Sections 16, 51G and 87 of the Judicature Act deal with the award of interest on any judgment sum in a proceeding for the recovery of any debt or damages. This Court in Day v Mead held that s 87 applied to interest on an award of equitable compensation. The High Court'sjurisdiction under s 87 to award interest should, in the absence of an adequate remedy at law, extend to an award of interest on costs.(h) The following factors support the High Court exercising, in this case, its jurisdiction to award interest on the costs from one or other of the points stipulated in (b) above:(i) The situation here is similar to that in Paper Reclaim where costs had been quantified some three years earlier, and different from the situation in Fullers where costs had not earlier been quantified.(ii) From very early times interest on costs was in England a right, not subject to discretion. That right reflected the view that it was just to impose on the losing party the requirement to reimburse the successful party for the costs of the litigation following judgment.(iii) Hunt left open the meaning of the words, in the Judgments Act 1938 (UK), that interest shall be allowed from "the time of entering up the judgment". In Newton v Grand Junction Railway Co, the House of Lords had called for interest on therelevant sum to run "as soon as it is reduced to certainty".77 Newton v Grand Junction Railway Co (1846) 16 M & W 139 at 141 per Alderson B.(iv) Hunt held that interest on costs accrues from the date of the substantive judgment (the incipitur rule) on the basis that the successful party will have had to pay its lawyers their fees before costs are taxed, and that costs are an indemnity – or partial indemnity – for those fees.(v) The reasoning in Hunt as to the term "judgment debt" in s 17of the Judgments Act 1838 (UK) should be applied by analogyto the term "debt" in s 87(1). Therefore an order for the payment of costs to be quantified amounts to a "debt" to berecovered, and the proceeding to recover that debt is covered by s 87(1).Analysis[9] The relevant part of s 87 of the Judicature Act provides:87 Interest on debts and damages(1) In any proceedings in the High Court, the Court of Appeal, or the Supreme Court for the recovery of any debt or damages, the Court may, if it thinks fit, order that there shall be included in the sum for which judgment is given interest at such rate, not exceeding the prescribed rate, as it thinks fit on the whole or any part of the debt or damages for the whole or any part of the period between the datewhen the cause of action arose and the date of the judgment [10] Mr Hampton's argument for Chesterfields is essentially an invitation to this Court to interpret s 87 as encompassing an award of costs not yet quantified by theCourt or capable of being quantified by the parties without the Court's assistance. The invitation is based primarily on the reasoning in Hunt.[11] We are unable to interpret s 87 in the way contended for. First, neither of theproceedings to which Fogarty J's costs judgment relates was a "proceeding for the recovery of any debt or damages". Both proceedings were applications for judicial review of decisions or actions of the CIR. Secondly, and consequentially, s 87cannot avail Chesterfields. It gives a court8 a discretionary power to include in the judgment sum interest on all or any part of the debt or damages for the whole or any part of the period between the accrual of the cause of action and the date of judgment. That has no applicability to an award of costs. Costs are consequent uponand not part of a judgment for a 'debt or damages', except when they are awarded as damages, which was not the position here.9 We view s 87 as having no application to the situation here.[12] Nor do we see the reasoning in Hunt as applicable in New Zealand. The judgment hinged primarily on the meaning of the words "every judgment debt shallcarry interest from the time of entering up the judgment until the same shall besatisfied" in s 17 of the Judgments Act 1838 (UK). That expression is not used inNew Zealand legislation. To a lesser extent the reasoning in Hunt was influenced by the wording of forms (and a footnote to one of the forms) prescribed by the Supreme Court of Judicature Act 1875 (UK), and in a series of cases determining the effect of those forms. New Zealand has, since the enactment of the New Zealand Code of Civil Procedure as a schedule to the Supreme Court Act 1882, had its own rules and forms, differently worded.[13] It is significant that, since Hunt, s 17 of the Judgments Act 1838 (UK), and the relevant rules of the English High Court, have been amended to provide that the Court may allow interest on costs to accrue from a time prior to judgment being given.10 When pointing that out in his article "A matter of no interest" in the NewZealand Law Journal,11 Mr McHerron drew a contrast with the position in New Zealand, where the Law Commission recommended that interest on costs be limited to the period following the date of the award of costs.128 Section 87 expressly applies to the High Court, Court of Appeal and Supreme Court.9 Costs can form part of an award of damages in a situation where they have been incurred as aresult of the defendant's breach of contract or tortious conduct.10 Civil Procedure Rules 40.8(2), 44.3(6)(g). Civil Procedure (Modification of Enactments) Order1998, s 3.11 Jason McHerron "A matter of no interest" [2012] NZLJ 260.12 Law Commission Aspects of Damages. The Award of Interest on Money Claims (NZLC R28,1994) at 108–109.[14] Reflected also in the reasoning in Hunt, is the English practice of taxing costs, and the delays inherent in that.13 Although the ability to tax costs remains available in New Zealand, the costs rules in the High Court Rules are designed to be"self-calculating".14 A proceeding is routinely given a costs category at the first, or at least at an early, case management conference. Costs of any interlocutory step(s) are generally fixed in the interlocutory judgment. This enables the costs of preparing for and conducting the trial to be calculated by the parties themselves, pursuant to the Schedules to the High Court Rules, unless there is a disagreement that costs should follow the outcome in the usual way, or there is a claim for increased or indemnity costs or the like.[15] To summarise, the different legislative provision under which Hunt was decided, and the distinctly different way in which costs are dealt with in New Zealand, combine to render Hunt a decision of limited applicability in New Zealand.[16] Although nowhere mentioned by Mr Hampton in his submissions, it is r 11.27 of the High Court Rules that applies here. That rule provides that a judgment debt carries interest from the time judgment is given at the rate(s) prescribed under s 87 of the Judicature Act. Rule 11.27 applies automatically.[17] With the entry on 30 August 2012 of judgment against the CIR for costs and disbursements totalling $229,889.20, r 11.27 applied to that judgment debt. The rationale is that the judgment sum was payable by the CIR from the moment of delivery. It is a debt due. Like any debt due it can and should be paid, and therefore interest runs from the time the judgment is given until it is paid.[18] The chronology set out in [5] above demonstrates that the CIR could not pay, and/or was not obliged to pay, costs before Fogarty J entered judgment on 30 August 2012. That is because:13 In Hunt just over 19 months elapsed from the stay of the proceeding following its settlement andthe issue of the taxing master's certificate.14 The description used in McGechan on Procedure (looseleaf ed, Brookers) in its summary ofgeneral principles at HRPt 14.02(i).(a) Costs were not finally quantified (free of arithmetical mistakes) by the Court, nor were they capable of quantification by the parties withoutthe Court's assistance, until 1 May 2009. The 15 December 2006 judgment simply reserved costs. Although the 25 November 2008 judgment ordered that Chesterfields was entitled to costs and indicated the appropriate costs category and likely band, it sought submissions on the appropriateness of ordering indemnity costs, and invited an application.(b) The CIR both appealed Fogarty J's second judicial review judgmentand his costs judgment. To protect her costs appeal, the CIR obtained, from this Court, a stay of execution of Fogarty J's costs judgment of 1 May 2009.(c) The Court of Appeal did not, as the CIR requested, quantify the costs to which Chesterfields were entitled. Instead, it remitted costs to the High Court for reconsideration. Chesterfields did not itself asked the Court of Appeal to quantify the costs.(d) Chesterfields then applied to the High Court for indemnity costs (not previously awarded, and thus not the subject of the appeal), and also sought costs for matters not claimed before the 1 May 2009 costs judgment.In short, there was no order by Fogarty J to pay a fixed or ascertainable, mistake free, sum of costs before 30 August 2012.[19] The analysis of Asher J in Fullers,15 with which Fogarty J agreed, was this:[18] No judgment debt for costs is created until there is an order to pay a specific amount. For there to be a judgment debt there must be a final and actual direction to pay.16 There was no such direction made by Hugh Williams J. Indeed, costs were not quantified. I am bound to conclude therefore that there is no jurisdiction to award interest on costs prior to there15 Fullers, above n 3.16 Garner v Briggs (1858) 27 LJ Ch 483 and Treadwell v Public Trustee [1944] NZLR 778 (SC) at781.being an order to pay a specific amount for costs, after which interest accrues under r 11.27(1). The general statement that costs were awarded in favour of the plaintiffs in the original judgment did not at that moment create a judgment debt in the sense of there being a final and actual direction to pay.[19] I therefore do not feel able, with respect, to follow Affco New Zealand Ltd v Anzco Foods Waitara Ltd, The Dunes Cafe and Bar Ltd v 623 Rocks Road Ltd (in liq) and Te Mata Properties Ltd v Hastings District Council. 17[20] We do not agree that there must be an order to pay a specific amount for costs before interest accrues under r 11.27(1). The correct position is that an award of costs accrues interest under r 11.27 if the Court has either:(a) Awarded costs in a specific sum; or(b) Although not awarding a specific sum, made a costs order in terms that enable the costs to be calculated or determined without reference back to the Court. That might be pursuant to the High Court costs rules, or it might be by some other mechanism stipulated by the Court.[21] In both those situations, interest under r 11.27 accrues from the date of the costs award even if, in the case of (b), the quantification is not completed and the amount of costs determined until a later date. That best gives effect to the costs principles set out in r 14.2 of the High Court Rules, in particular (g) which states:So far as possible the determination of costs should be predictable andexpeditious.(Our emphasis).[22] The position outlined in [20] also gives the parties the desirable incentives of having costs determined, quantified and paid as soon as practicable after judgment (or better still as part of the judgment). Although we have held that Hunt is a decision of limited applicability in New Zealand, it is noteworthy that achieving those same desirable incentives was a major factor in the result in that case.17 Affco New Zealand Ltd v Anzco Foods Waitara Ltd (2005) 17 PRNZ 676 (HC); The Dunes Cafeand Bar Ltd v 623 Rocks Road Ltd (in liq) HC Nelson CIV-2006-442-481, 31 March 2010 at[114] and Te Mata Properties Ltd v Hastings District Council HC Napier CIV-2004-441-151, 23February 2010 at [16].Delivering the leading judgment, Lord Ackner said that the result their Lordships had reached:18 provides a further necessary stimulus for payments to be made on account of costs and disbursements prior to taxation, for costs to be more readily agreed, and for taxation, when necessary, to be expedited, all of which are desirable developments. Barristers, solicitors and expert witnesses shouldnot be expected to finance their clients' litigation until it is completed and the taxing master's certificate obtained. If interest is not payable on costs between judgment and the completion of taxation, then there is an incentive to delay payment, delay disbursements and taxation. [23] In his judgment Asher J indicated that he was unable to follow three decisions of the New Zealand High Court awarding interest on costs.19 In his article Mr McHerron respectfully suggests that this leaves the law in an unsatisfactory state of uncertainty, because Asher J did not make it clear whether he was simply distinguishing those three cases on their facts, or thought they were wrongly decided.20 We therefore consider those three cases, and two earlier ones not mentioned in Fullers.[24] In Affco New Zealand Ltd v Anzco Foods Waitara Ltd Ronald Young J had on 3 November 2004 ordered the defendant to pay the successful plaintiff costs on the agreed 3C category/band basis. After the parties agreed those costs at $108,897.50, the plaintiff on 22 December 2004 sought payment of that amount. The defendant took the position was that it was not obliged to pay because disbursements remained in dispute. Ronald Young J's 9 May 2005 judgment dealt with the plaintiff'sapplication for an order for payment, and for interest on the costs awarded.[25] Ronald Young J first rejected the defendant's argument that the dispute as todisbursements meant the defendant was not liable to pay the agreed costs. He then referred briefly to Hunt, commenting that "there is nothing to say that such a jurisdiction does not also exist in New Zealand". He concluded:21 A large order of costs, over $100,000 has been agreed between counsel. A significant period of time has passed (6 months) since my judgment of 318 Hunt, above n 4, at 415–416.19 Te Mata Properties Ltd, above n 17, at [16]; The Dunes Cafe and Bar Ltd, above n 17, at [114]and Affco New Zealand Ltd, above n 17.20 McHerron, above n 11, at 260.21 Affco New Zealand Ltd, above n 19, at [10].November which gave rise to the identification of the amount outstanding. There is no reason why ANZCO should have had the use of what essentiallyis AFFCO's money. I therefore make an order that interest be payable at therate of 7.5 percent on the outstanding amount of costs of $108,897.50 from the date of demand which I take to be 22 December 2004 until the date of payment.[26] We consider Affco was correctly decided. We do not understand why Asher J did not regard it as in line with his own approach, and felt unable to follow it. Weagree with Mr McHerron's observation in his article:22Indeed, if Affco is to be criticised, it is because it is arguable interest ought to have accrued from that earlier date, rather than the date of demand, 22 December 2004.[27] In The Dunes Cafe and Bar Hugh Williams J had on 25 February 2009 given a judgment determining liability. In a second judgment delivered on 31 March 2010 the Judge fixed at $600,229.58 the damages the plaintiff was entitled to, and gave judgment for that sum. He also ordered that the plaintiff was entitled to costs of $60,160 plus disbursements and witness expenses, recording "the total appears to be $86,136.33".23 He ordered that the plaintiff was entitled to judgment on the same basis for costs against the defendant on its unsuccessful counterclaims up to just before the October 2006 hearing,24 together with any disbursements and witnesses'expenses specifically referable to those counterclaims. He reserved leave to the parties to apply in the event his costs orders did not result in agreement as to the precise quantification of the costs. Pursuant to the jurisdiction exercised in Hunt and applied in Affco, Hugh Williams J allowed interest on the costs, disbursements and expenses from the date of that second, 31 March 2010 judgment. He referred to s 87 and r 11.27(1).[28] Thus, The Dunes Cafe and Bar involved the Judge allowing interest on costs in a judgment in which he had specifically quantified the first of two costs awards, and stipulated the basis on which the second award was to be quantified. Again, we regard The Dunes Cafe and Bar as correctly decided and can see no good reason why Asher J did not follow it, certainly in relation to the first costs award. Arguably, r 11.27 applied automatically to both the Judge's costs awards.22 McHerron, above n 11, at 261.23 At [106].24 An obvious error for October 2008, when the second part of the liability hearing took place.[29] In Te Mata Properties Hugh Williams J struck out the plaintiffs' claims in ajudgment on 17 August 2007.25 In that judgment he invited memoranda if counsel were unable to agree on costs. An unsuccessful appeal ensued, as did desultory attempts by the parties to come to agreement on costs through to December 2009, when the Court intervened, directing the filing of memoranda so that it could finalise costs. In his further costs judgment of 23 February 2010 the Judge gave directions which he considered should enable the parties to quantify costs and seal a costsjudgment. The Judge considered it was largely the plaintiffs' fault that the defendants had been "kept out of the moderately significant sums payable to [the defendants] for at least one year and probably two".26 The Judge therefore allowed interest from the date of service on the plaintiffs' solicitors of the sealed costs judgment to the date of payment pursuant to s 87 (it should obviously have been r 11.27).[30] Our comment is the same as for the previous two cases: we regard Te Mata Properties as correctly decided (save for the Judge's incorrect reliance on s 87 rather than r 11.27) and do not understand why Asher J took a different view.[31] Mr McHerron's article briefly discusses two earlier decisions of the High Court, not referred to in Fullers. Nothing need be said about the first case, W & R Jack Ltd v Fifield,27 because it involved interest on costs awarded by the Privy Council.[32] In the other case, Scottwood Charitable Trust v Bank of New Zealand,28Morris J had struck out the plaintiffs' claims in a judgment on 25 May 2000. This is the relevant passage in his costs judgment of 15 November 2001:[36] The Bank also seeks interest on the amount of costs awarded. Thefixing of costs has been deferred until now at the plaintiffs' request. Indeed Ihave refused an application for a further deferral pending the outcome of theplaintiffs' appeal to the Privy Council. Overall I consider it reasonable toaward the Bank interest. I accordingly do so. It is entitled to interest on25 Te Mata Properties Ltd, above n 17.26 At [16].27 W & R Jack Ltd v Fifield HC Auckland CP436-IM01, 14 December 2001.28 Scottwood Charitable Trust v Bank of New Zealand HC Hamilton M159-160/92, CP11-13/95,15 November 2001.costs and disbursements as fixed from 25 May 2000 being the date of the judgment dismissing the claims.[33] That does not accord with the approach we have set out. We view it as wrong. Mr McHerron took the same view. Pointing out that Morris J had simply reserved costs in his 25 May 2000 judgment, Mr McHerron observed:29With respect, it cannot be said that a judgment debt existed for the purposesof r 11.27(1)'s predecessor r 538 (which was in substantially the same terms).We agree.[34] In the judgment under appeal Fogarty J remarked:30 Had the appeal against the High Court decision of 1 May 2009 beenresolved by the Court of Appeal rather than sent back to the High Court, the Court of Appeal had the power to award interest at certain dates, when the costs arose.[35] That is apparently a reference to this Court's decision in Paper Reclaim, the decision Mr Hampton referred to several times in his argument for Chesterfields.31[36] In Paper Reclaim this Court allowed an appeal against a costs judgmentNicholson J had given on 30 August 2004. Because of the Judge's impendingretirement, rather than remitting costs to the High Court for redetermination, this Court itself fixed the costs anew, after receiving memoranda. This Court expressed itself as satisfied that r 48(4) of the Court of Appeal (Civil) Rules 2005 gave it the jurisdiction to allow interest on the new award of costs at least from the date ofNicholson J's costs judgment, 30 August 2004.[37] Rule 48(4) provides:48 Powers of Court in hearing appeals29 McHerron, above nt 261.30 At [19].31 Above n 2.(4) The Court may give any judgment and make any order which ought to have been given or made, and make any further or other orders that the case may require.[38] This Court rejected a submission that the interest should run from NicholsonJ's earlier liability judgment, observing:32 we have not backdated interest to the date of Nicholson J's liabilityjudgment. It seems unfair to lumber Paper Reclaim with interest on costs when it did not know what costs were to be ordered until later.[39] About a month later, in Gibson v Minter Ellison Rudd Watts,33 the Court exercised the same jurisdiction in a similar situation, awarding interest on its substituted costs award from the date of the High Court costs judgment it had set aside.[40] This is not an appeal from the judgment in Paper Reclaim. We have accordingly not heard argument as to the correctness of that judgment. However, we enter a caveat about the reasoning in Paper Reclaim and Gibson v Minter Ellison. We think that a more natural reading of r 48(4) is that this Court may order now what the High Court ought to have ordered at the time it gave judgment. Thus interpreted, the rule would not permit the backdated awards of interest made in Paper Reclaimand Gibson v Minter Ellison.Result[41] The appeal is dismissed.[42] Chesterfields is to pay the CIR's costs for a standard appeal on band B basisand usual disbursements.Solicitors:Crown Law Office, Wellington for the Respondent32 At [44].33 Gibson v Minter Ellison Rudd Watts [2007] NZCA 595 at [121].