FEARY AND ANOR V COMMISSIONER OF CROWN LANDS HC CHCH CIV-2008-409-000233

FEARY AND ANOR V COMMISSIONER OF CROWN LANDS HC CHCH CIV-2008-409-000233 18 August 2008IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY CIV-2008-409-000233IN THE MATTER OF the District Courts Act 1947 AND IN THE MATTER OF s151 of the Law Practitioners Act 1982 BETWEEN MARK STAFFORD FEARY KAREN ANN FEARY Appellants AND COMMISSIONER OF CROWN LANDS Respondent AND BETWEEN BUDDLE FINDLAY Appellant AND COMMISSIONER OF CROWN LANDS Respondent Hearing: 23 July 2008 Appearances: N Till QC & H Mill for Fearys K Foley for Buddle Findlay R B Chan for Respondent Judgment: 18 August 2008RESERVED JUDGMENT OF HON. JUSTICE FRENCH[1] This is a consolidated appeal against two decisions of the District Court. [2] In the first decision, the District Court Judge granted an application under s151 of the Law Practitioners Act 1982 to refer two bills to the Canterbury District Law Society for revision, but declined a similar application in respect of five otherbills. In the second decision, the Judge considered the issue of costs arising out of the applications. [3] The first appellants (the Fearys) have appealed both decisions. The second appellant, Buddle Findlay, whose bills were the subject of the application, has appealed only the costs decision.Factual background[4] The seven accounts at issue were all bills rendered by law firm Buddle Findlay to the Fearys, whom Buddle Findlay was representing in a long-running dispute with the respondent (the Commissioner). [5] In April 2002, the Fearys and the Commissioner had entered into a deed of settlement settling certain litigation that had arisen between them over forfeiture of the Fearys' lease of Crown Land. Not all issues were resolved, and the settlement included an agreement to submit outstanding matters to arbitration. [6] It was a term of the settlement deed that the Commissioner would "meet all further legal costs incurred by Mark and Karen Feary in relation to the issues to effect this deed, so long as those costs are reasonable". In the event of the parties being unable to agree about the reasonableness of the legal costs, the deed also provided that any legal bills would be submitted to the costs revision committee of the Canterbury District Law Society for revision. [7] Under the Law Practitioners Act, the party chargeable with a solicitor's bill of costs is entitled as of right to refer the bill to the District Law Society for revision unless more than six months after the date of delivery of the bill has elapsed or the parties otherwise agree. If the referral is out of time, a court order is needed before the bill can be referred. A further refinement under s151 is that where the referral is both out of time and the bill has been paid, the Court can only issue an order of referral if satisfied there are special circumstances.[8] It was common ground that because of the agreement with the Fearys, the Commissioner was "a party chargeable" for the purposes of the Law Practitioners Act, despite not being Buddle Findlay's client himself. [9] Disputes arose about the reasonableness of some of Buddle Findlay's fees. [10] In December 2005, there was a further agreement between the Fearys and the Commissioner that in respect of all existing unpaid accounts, any referral to the Law Society would be made by 7 February 2006, while in respect of any future accounts, referral would be made within 20 working days of receipt. This had the effect of extending the statutory time limit of six months in respect of some bills, but significantly truncating it in respect of others. [11] Although the Commissioner disputed the reasonableness of the seven bills, he did pay significant portions of them. The Fearys paid the outstanding balances. [12] Without knowing the Fearys had paid the disputed portions of the bills, the Commissioner purported to refer the seven bills to the Law Society for revision. The referrals were however all out of time, and because the bills had all been paid, the combined effect of those two things triggered the application of s151. [13] When this was drawn to the Commissioner's attention, the Commissioner then filed an application in the District Court. [14] Originally, the parties to the application were the Commissioner and Buddle Findlay. Subsequently, the Fearys were also joined by consent. Buddle Findlay and the Fearys opposed the Commissioner's application on two grounds – first, the District Court did not have jurisdiction to hear the applications which it was argued should have been filed in the High Court, not the District Court; and secondly, there were no special circumstances.The District Court decision[15] After closely analysing the relevant statutory provisions, the Judge held the District Court did have jurisdiction under s151.[16] Having found the District Court had jurisdiction, the Judge then proceeded to consider whether there were special circumstances such as would warrant an order for referral. [17] In respect of the first five bills, the Judge found special circumstances did not exist and accordingly declined to make any order of referral. There had been inordinate delays on the part of the Commissioner in respect of those bills and for reasons which I need not traverse, the Judge did not accept the explanation for the delay constituted a special circumstance. [18] The Judge was however prepared to make an order of referral in respect of the sixth and seventh bills. [19] Unfortunately, there appears to have been some confusion about these two bills. [20] As regards bill 7, no order was in fact required because counsel had advised the Judge during the hearing that the Commissioner had paid bill 7 in full and no longer sought revision. On appeal to this Court, counsel for the Commissioner acknowledged making that concession to the Judge, but suggested the fact the Judge went ahead and made an order anyway represented a deliberate choice on the Judge's part. I do not accept that argument. I am certain had that been the Judge's approach, he would have referred to the concession and explained why he still thought an order appropriate. The much more likely explanation is that in the morass of detail provided about the various bills, the matter was simply overlooked. What the respondent admits to saying was tantamount to a withdrawal of the application, and it is inconceivable the Judge would have consciously made an order in those circumstances without any comment. [21] As regards bill 6, it is unclear whether the Judge regarded this bill as caught by s151 and so requiring special circumstances, or whether he thought it was governed by s145, in which case there was no requirement for special circumstances. At [52], the Judge held bill 6 was outside the scope of s151, but later in the judgment at [67] found special circumstances in respect of both bills 7 and 6.[22] The confusion appears to have its genesis in an incorrect submission made to the Judge by the then counsel for the Fearys. In any event, it is common ground the correct position is that bill 6 was also caught by s151. [23] The special circumstances found by the Judge in respect of bill 6 were: (i) Bill 6 was referred to the Canterbury District Law Society within the six-month statutory time limits and only marginally outside the agreed time limits (dated 31 October 2006, the bill was delivered to the Commissioner on or about 10 November 2006. It was referred to the Law Society on 11 December 2006, acknowledged to be only three days outside the agreed deadline). (ii) The Commissioner had advised both the Fearys and Buddle Findlay within days of receipt of the bill that part of it would be disputed, and had also offered to pay by far the majority of the amount of the bill. (iii)The Fearys had paid the disputed portion without notifying the Commissioner. But for their conduct in making that payment, s151 would not have been triggered (although this observation is made in respect of bill 7, it would have been equally applicable to bill 6).The Judge's costs decision[24] When it came to the question of costs, the Judge held costs should lie where they fell. [25] His reasons for so holding were as follows: (i) The preliminary issue of jurisdiction was breaking new ground.(ii) Both sides won part and lost part. (iii)The Fearys did not need to be involved as a party. Their involvement was seen as part of a concerted effort by them to discredit the Commissioner. (iv) Buddle Findlay appeared to act more for the Fearys than themselves on an issue which was clearly between the Commissioner and themselves. The Judge said without the Fearys' influence and instructions he would have expected a firm with the reputation which Buddle Findlay enjoys to have consented to the matter being dealt with by the Law Society.Grounds of Appeal[26] For the reasons discussed above, I am satisfied the order made in respect of bill 7 was made in error. It cannot stand. [27] That being the case, and there being no cross-appeal by the Commissioner in respect of the first five bills, it means this appeal is concerned solely with bill 6: or more accurately the disputed portion of bill 6, namely $5255.26, together with the Judge's decision not to make any award of costs. [28] In appealing the decisions, the Fearys advanced various grounds which can be conveniently summarised as follows: (i) As a matter of statutory interpretation, the Judge was wrong to find the District Court has jurisdiction under s151. (ii) In any event, there were no qualifying special circumstances so as to justify an order of referral. (iii)The Judge made findings that were highly critical of the Fearys without any evidential basis and in breach of the rules of natural justice. These findings influenced his decision thatspecial circumstances existed and his decision to make no award of costs. (iv) The Judge failed to consider the Fearys' application to be awarded indemnity costs based on the provisions of the 2002 deed of settlement. [29] For its part, Buddle Findlay appealed the costs decision on the grounds the honours were not as evenly divided as the Judge suggested and that the Judge had failed to take into account the Commissioner was seeking an indulgence. [30] For completeness, I should add both the Fearys and the Commissioner sought leave to adduce additional evidence on appeal. Because of the view I have taken about the case, I do not need to decide those applications. Even if admitted, the evidence in question would not have made any difference to the outcome.Did the District Court have jurisdiction under s151?[31] I turn now to consider the issue of jurisdiction, which involves an interpretation of the following provisions contained in Part VIII of the Law Practitioners Act:146 Order of Court for reference of bill for revision(1) Subject to sections 150 and 151 of this Act, a Court may order that a bill of costs be referred to the appropriate District Law Society for revision by the District Council. (2) An order under this section may be made either on the application of the practitioner or on the application of the party chargeable. (3) Any such order may be made with such directions and subject to such conditions as the Court thinks fit. (4) In this section the term Court means— (a) The High Court; or (b) A District Court in any case where that Court would have jurisdiction if the application were a claim for the amount of the bill.147 Revision on application of beneficiary under trust, etc.(1) Subject to sections 150 and 151 of this Act, where a trustee, executor, or administrator has become chargeable with a bill of costs, a Court, if in its discretion it thinks fit, on the application of a person interested in any property out of which the trustee, executor, or administrator has paid or is entitled to pay the bill,— (a) May make an order for reference of the bill to the appropriate District Law Society, for revision by the District Council, with such directions and subject to such conditions as the Court thinks fit; and (b) May make such order as the Court thinks fit for the payment of the amount that may be found due, and of the costs of the order for reference and of the revision, to or by the practitioner by or to the person making the application,— having regard to the provisions of this Part of this Act relating to applications for the like purpose by a party chargeable, so far as those provisions are applicable to the case. (2) In exercising its discretion under this section, the Court may take into consideration the extent and nature of the interest of the person making the application. (3) Where any money is ordered to be paid by the practitioner, the Court may if it thinks fit order that the money or any part of it be paid to the trustee, executor, or administrator chargeable with the bill, instead of being paid to the person applying for the order; and where the applicant pays any money to the practitioner in respect of the bill, he shall have the same right to be paid by the trustee, executor, or administrator chargeable with the bill as the practitioner had. (4) In this section the term Court has the same meaning as in section 146 of this Act.150 No revision after 1 year from payment of bill by deduction or set-offWhere a bill of costs has been paid by deduction or set-off, the bill shall not be referred for revision under this Part of this Act, whether by order of a Court or otherwise, or revised by a District Council of its own motion, after the expiration of 1 year from the date of the payment of the bill, unless the Court or the District Council, as the case may be, in its discretion otherwise allows, having regard to the circumstances of the case.151 Where revision allowed only in special circumstances(1) In any case to which this section applies,—(a) A bill of costs shall not be revised by a District Council of its own motion, or referred for revision except by order of a Court; and (b) The Court shall not make an order for the reference of a bill for revision except in special circumstances. (2) This section applies in every case (not being a case to which section 150 of this Act applies) where— (a) The bill has been previously revised under this Part of this Act or taxed before the commencement of this Act under Part 4 of the Law Practitioners Act 1955; or (b) A verdict or judgment has been obtained in an action for the recovery of the amount of the bill; or (c) The bill has been paid otherwise than by deduction or set- off; or (d) One year has elapsed since the date of the delivery of the bill.[32] Interestingly, the District Courts Rules do not appear to make any reference to applications under the Law Practitioners Act. The District Court does however undoubtedly have jurisdiction under at least ss 146 and 147 of the Law Practitioners Act, so the absence of any reference probably does not take the matter any further. [33] Certainly, there are a number of previous cases where both District Court and High Court Judges have obviously assumed the District Court does have jurisdiction under s151. See for example Nicholl v Roche HC Auckland CIV-2004-404-006552, 27 June 2005; Lawn v Ward HC Hamilton CIV-2006-419-001456, 5 February 2007. [34] However, it is common ground jurisdiction was never raised in those cases and that the present case represents the first time it has been put in issue. [35] I have found the question a difficult one to determine as there are strong arguments either way. [36] As mentioned above, s151 is contained in Part VIII of the Act. Part VIII is headed "Practitioners' Costs." It commences with s139, which defines certain words for the purposes of Part VIII. The word "Court" is not among them.[37] The word "Court" is, however, defined in the general definitions section at the beginning of the Act. Section 2 says:In this Act, unless the context otherwise requires,– "Court" means the High Court, and includes a Judge of the Court:[38] In submitting that the word "Court" as it appears in s151 means only the High Court, Mr Till relied on the following: (i) the general definition of "Court" in s2; (ii) the fact it is the High Court which has the traditional supervisory jurisdiction over legal practitioners; (iii)the fact a special expanded definition of "Court" so as to specifically include the District Court appears in ss 146 and 147, but not in s151; (iv) the High Court having exclusive jurisdiction in s151 reflects the overall scheme of the costs revision provisions, providing as the scheme does for a range of referrals with increasing scrutiny and thresholds as the effects of potential revision become greater; from s145 which provides for revision as of right subject to time limits, s146 which provides for District and High Court referrals without special circumstances at any time up to one year after delivery or absent the other circumstances in s151, to s151 providing for reference where there are special circumstances and when the barriers in s151(2) are present; (v) The extended definition of "Court" in s146 is an exception to the scheme designed to reflect that relatively minor matters can be dealt with by the District Court despite the traditional supervisory jurisdiction being held by the High Court. Section 151 reflects a return to the usual position because thestakes are higher requiring, as they may do for example, the refund of money already received. [39] There is much force in the points made by Mr Till. [40] However, after careful consideration, I have decided I prefer the analysis adopted by the District Court Judge. I have reached that view as a result of the following: (i) The s2 general definition of "Court" expressly states "unless the context otherwise requires". In other words, "Court" will not automatically always mean the High Court. The meaning will yield to context. It is not an absolute. (ii) Section 149 (which provides for review of a Registrar's decision by the High Court) expressly refers to "the High Court". If the Fearys' argument were correct, and the word "Court" wherever it appears means the High Court, there would have been no need for the legislature to refer to theHigh Court. "Court" would have sufficed. (iii)The wording of s151 itself. Section 151 does not actually purport to create or confer a power on the Court to order referral. Rather, what it does is qualify or impose restrictions on the Court's power by requiring special circumstances to exist in specified situations before any order can be made. The only sections which actually in so many words confer a power on the Court to make referral orders are in fact ss 146 and 147, and in both those sections the power is expressly conferred on the District Court as well as the High Court. The way s151 is worded strongly supports the analysis it links back to ss 146 and 147, rather than standing on its own.(iv) This analysis is also supported by the fact that in addition to ss 146 and 147, ss 144 and 145 are also expressed to be subject to ss 151 and 150. Thus, as stated by the District Court Judge at [25] " sections 150 and 151 represent the situations in which "extra hoops" have to be gone through before the action provided for in the standard sections (ss 144-147) can be carried out in particular situations (ie those provided for in s151(2))". [41] Given the structure and wording of the relevant provisions, I do not consider Parliament can be taken to have intended the matters specified in s151 were so significant and complex as to take bills otherwise within the District Court's monetary jurisdiction somehow outside its expertise. If anything, I would have thought the matters arising from applications under s147 (revision on application of beneficiary under a trust) could potentially be more complex. Yet, Parliament clearly intended the District Court to have jurisdiction in those matters. From a policy perspective, the interpretation adopted by the District Court Judge is, in my view, entirely appropriate. It does not detract in any meaningful way from the traditional supervisory jurisdiction held by the High Court. [42] In my view, the District Court Judge was correct to find the District Court had jurisdiction under S151. It follows I now need to consider the Judge's finding of special circumstances in relation to bill No 6.Were there special circumstances?[43] As noted by the District Court Judge, the leading authority on what amounts to special circumstances is the Court of Appeal decision in Cortez Investments Limited v Olphert & Collins [1984] 2 NZLR 434.[44] In Cortez, the Court of Appeal held "special circumstances" did not mean an applicant under s151 had to show "serious risk of prejudice" before being entitled to relief. That was considered too stringent a test. The Court emphasised the words "special circumstances" were wide, comprehensive and flexible and should not beconstrued narrowly. The Court was also at pains to stress each case must be looked at on its own merits and there was no set formula. It did however offer the following guidance: as one way of looking at the test of special circumstances I think it would be met where aspects of the facts seemed to indicate a problem which had relatively unusual features while reasonably deserving at the same time relief of the kind provided by the provision. it would be wrong I think to exclude as irrelevant either the reasons for the situation which has arisen or the possible merits of the substantive issue. [Woodhouse P at 437] I think that if the issue is to be related to perceived injustice then the simple risk of injustice should be sufficient, something which certainly would be reinforced if there were a reasonable explanation for the problem facing an applicant. [Woodhouse P at 437] Synonyms such as "unusual", "out of the ordinary run", "uncommon", "abnormal", "striking" convey the same flavour but really add nothing except to emphasise that "special" is something less than extraordinary or unique. A factor or combination of factors which may properly be characterised as not ordinary or common or usual may constitute a "special circumstance" justifying the revision of the bill under s 151. And whether a circumstance is sufficient warrant for the exercise of that jurisdiction under s 151 may well depend into which of the four categories of s 151(2) the case falls. But the inquiry never calls for the mechanical application of a rigid set of criteria. The interests of justice must govern and in terms of s 151(1)(b) that requires allowing the re-opening of the bill where there is a special circumstance present requiring that course. [Richardson J at 439] Shortly put, the purpose of s 151 is to prevent the re-opening of stale or already adjudicated grievances; it is not intended to prevent the re-opening of matters which, left as they are, could give rise to injustice. [McMullin J at 441][45] In the present case, bill 6 was an account dated 31 October 2006 for $26,627.43. It was sent under cover of letter dated 8 November 2006 to the Commissioner, but not referred to the Law Society until 11 December, some three days after the deadline for referrals agreed in December 2005 had elapsed. [46] In challenging the Judge's findings about special circumstances, Mr Till argued the Judge was wrong to rely on the fact the referral was within the statutory time limit and wrong to measure the delay by reference to the date of the purported referral to the Law Society. The correct date, on the authority of Nicholl, was the date the application was filed in Court (ie 11 April 2007) which meant the delay was several months, rather than just a few days. In any event, in relation to the first five bills, the Judge had already found the Commissioner could not rely on the statutoryperiod as constituting special circumstances, because he had agreed to abridge the statutory time limit and should be held to his contract. [47] Mr Till also submitted there was no evidence of any prejudice to the Commissioner if referral was denied, and that the Judge also erred by relying on the fact the Fearys had paid the bill as constituting special circumstances. At the time the Fearys had paid the bill, the date for referral as of right (namely 8 December 2006) had already elapsed. Therefore, an application to the Court was necessary anyway, or to put it another way the Court application was not necessitated by the Fearys' conduct in making payment. [48] For all those reasons, Mr Till submitted the Judge was wrong to find special reasons on the grounds he did. [49] I disagree, and note the following. [50] First, there was evidence as to why the Commissioner wanted revision. His concerns about the bill are set out in a letter to Buddle Findlay dated 5 December 2006 in the following terms:Despite the extensive narrations in that account, it is not possible to come to a view on the reasonableness of the account. For example, it is difficult to see how so much time could have been spent on 26 October with Mr Feary's rebuttal brief, and why two counsel should have been engaged with him for such a lengthy period. Likewise, it is not clear why so much time should have been spent on 27 October in assembling the evidence for filing. In addition, some of the work related to briefs of evidence which were irrelevant and unnecessarily, for example, those relating to the issue of tracking consent. To resolve the matter LINZ is prepared to pay the account subject to a deduction for 15 hours work at a rate of $270.00 per hour which is an average of the rates charged out in the account. LINZ will not reimburse the Official Information Act charge and in the absence of an explanation will not reimburse the office disbursements charge.Accordingly, the amount which will be paid by LINZ by bank transfer is: Fees $22,037.00 Less $4,050.00 $17,987.00 Plus GST $2,248.37 20,235.37 Plus exhibit costs $12.00 Total $20,347.37 No explanation was given as to the exhibit costs but as it is a minor amount only it will be met If that is not acceptable please advise so the account can be referred to the CDLS. If there is any issue as to whether the response was made in time, I note that your letter of 8 November asks for payment of the account by 20 December, so that sets the date for a response.[51] In the absence of any evidence to the contrary, these objections could not be described as spurious or untenable. They are concerns which, on the face of them, justified further investigation. The Commissioner was entitled to an independent scrutiny of those concerns and to be denied it must constitute prejudice. [52] Further, while I accept delay in filing the application is relevant, the facts of the Nicholl decision are very different. There, the application to the Court was not made for some 14 months after the issue of the bill. Here, the time span is more like four months (including the Christmas vacation), still within the statutory time limit. [53] What, in my view, is more significant about the Nicholl decision for present purposes is the statement at [20]:In making a finding of special circumstances, it is proper for the Court to have regard to the totality of the matters said to constitute special circumstances. Therefore, although one matter on its own may not constitute a special circumstance, it may do so in combination with another.[54] This statement is particularly apposite to the features of this case. [55] The fact the Commissioner both purported to refer the matter to the Law Society and filed the Court application within six months would not on its ownconstitute special circumstances, but when taken in combination with the fact he was unaware the Fearys had paid the bill, I consider it does. [56] I make no finding about the Fearys' motives in paying the bill without first advising the Commissioner of their intention. What is important is the effect it had on the Commissioner's rights. It meant he was caught by s151. Admittedly, he would still have had to file an application to the Court, but he would not have been subject to the higher threshold of s151. [57] This case is "unusual" and "out of the ordinary run" because of course normally the party chargeable is the client and they would know whether the bill had been paid, because they would be the ones who had paid it. [58] Applying the Cortez principles to the facts of this case, I am satisfied there were special circumstances and that the interests of justice in relation to bill 6 lie with the Commissioner. For completeness, I should note that although the amount of the disputed portion is modest, there are a number of other bills (in addition to the seven at issue in this proceeding) which have been referred in time to the Law Society. It cannot therefore be said the Fearys or Buddle Findlay are going to be prejudiced by a revision hearing having to be convened for only $5000. [59] Having concluded the District Court Judge did have jurisdiction and that there were special circumstances, I find no reason to interfere with his decision in relation to bill 6. For the reasons mentioned above, the order in respect of bill 7 cannot stand and is therefore quashed.The Judge's costs decision[60] An appeal against a costs decision is an appeal against the exercise of a discretion. [61] It follows the appellants need to establish the decision was contrary to principle, or that the Judge failed to take relevant matters into account, took into account irrelevant matters, or was plainly wrong.[62] What appears to have influenced the Judge most was his perception about the unreasonableness of the Fearys' conduct. This was founded in large part on the reflection that having the matter referred to the Law Society could not disadvantage them. It could only potentially advantage them because it might result in a refund of the legal costs. The Judge clearly found their strong opposition to the Commissioner's application illogical and ultimately explicable only on the basis of sheer bloody-mindedness. He concluded the Fearys should not have been an active party. [63] On appeal, Mr Till argued there were disadvantages to the Fearys in having the bills referred to the Law Society. I did not find the points made about this particularly persuasive, but in any event consider the Fearys having been joined as a party by consent, the Commissioner cannot now object to them being a party, and the consequences that flow from that in terms of costs. [64] As for Buddle Findlay, I do not consider its motives in opposing the application for referral were in any way improper. It was entitled to refuse consent to revision out of time and so achieve finality, especially as there had been such inordinate delay on the part of the Commissioner at least in respect of the first five bills. [65] I also accept that correctly analysed, the outcome did not reflect a draw. Of the six accounts that remained the subject of the application, the Commissioner was unsuccessful in respect of five, which represents 83.3% success for Buddle Findlay and the Fearys based on numbers (removing bill 7 from the calculation), and 89.4% based on the value of the outstanding balances. [66] The Commissioner was of course successful on the important issue of jurisdiction. That issue must have occupied a significant part of the hearing, although such a consideration also needs to be tempered with the reflection the point was in the nature of a test case. [67] I also agree it needed to be borne in mind the Commissioner was seeking an indulgence, a fact that was not mentioned by the Judge.[68] Rather than refer the matter back to the District Court for reconsideration, I consider it more appropriate in the circumstances to fix the costs myself. Looking at the matter overall, and taking into account the relative success of each party, I consider the Fearys and Buddle Findlay were each entitled to an award of costs, which I fix at $4500, being approximately 80% of costs calculated on a 2B basis. They are also each entitled to disbursements as fixed by the Registrar. [69] I am satisfied that on a true construction of clause 2 of the Deed of Settlement the Fearys are not entitled to indemnity costs from the Commissioner. Seen in context, the phrase "the issues to effect this deed" must in my view be referring to the substantive issues that were outstanding about compensation etc, and which were to be arbitrated. Much clearer words would have been needed to ascribe an intention to bind the Commissioner to underwrite costs incurred in connection with disputes about costs. The decision of Clifford J in Attorney General v Feary HC Wellington CIV-2006-485-000610, 7 March 2007, was on a different point. It was not about costs arising out of a dispute about costs. [70] As will be apparent, the conclusions I have reached have been reached entirely independently of any of the adverse findings made by the Judge against the Fearys. Accordingly, it is not necessary for me to determine whether those findings were well founded or not.Outcome of Appeals[71] The Fearys' appeal against the decision of the District Court dated 23 November 2007 is successful only in respect of the order relating to bill 7. Their appeal against the rest of the decision is dismissed. [72] The appeals brought by Buddle Findlay and the Fearys against the costs decision of the District Court dated 16 January 2008 are upheld. Costs of $4,500 each are awarded together with disbursements.Costs of this appeal[73] In accordance with the principle that costs should follow the event, I consider Buddle Findlay is entitled to costs and disbursements on its appeal against the Commissioner. Although the issues were of a relatively straightforward nature, it appears it was agreed the relevant costs category was 2B. I therefore award costs on that basis plus disbursements to be fixed by the Registrar. [74] As between the Commissioner and the Fearys, most of the hearing time was occupied with consideration of the appeal against the decision of the District Court dated 23 November 2007, as opposed to the appeal against the costs decision. [75] On the other hand, the main issue involved a novel matter and so was in the nature of a test case. [76] Looking at the matter overall, I consider the fairest approach to costs in respect of both appeals is to hold that as between the Fearys and the Commissioner, costs should lie where they fall.Solicitors: Godfreys, Christchurch Buddle Findlay, Christchurch Crown Solicitor, Christchurch