Feary v Commissioner of Crown Lands [2011] NZCA 193 (17 May 2011)

Last Updated: 25 May 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA59/2009 [2011] NZCA 193

BETWEEN MARK STAFFORD FEARY AKA ALL MEANS ALL AND KAREN ANN FEARY Applicants

AND THE COMMISSIONER OF CROWN LANDS Respondent

AND BETWEEN BUDDLE FINDLAY Appellant

AND THE COMMISSIONER OF CROWN LANDS Respondent

Hearing: 19 April 2011

Court: Ellen France, Randerson and Wild JJ

Counsel: No appearance for the Applicants R Chan for the Respondent

Judgment: 18 May 2011 at 11 am

JUDGMENT OF THE COURT

A The application for leave to appeal is dismissed.

2. The applicants are to pay the respondent’s costs for a standard application for leave on a band A basis plus usual disbursements.
   

REASONS OF THE COURT
(Given by Wild J)

[1] By application dated 30 January 2009 the applicants, Mr and Mrs Feary, apply for leave to appeal a judgment of French J delivered on 18 August 2008.[1] Leave to appeal was refused by French J in a second judgment she gave on 15 December 2008.[2]
[2] There was no appearance for the applicants when their application was heard on 19 April. We proceeded in their absence for two reasons. First, we were satisfied that the applicants were aware of the fixture. The Court had of course advised them of it. Further, Ms Chan told us she had spoken to Mr Feary on the telephone on 25 March 2011 to inquire when he would be filing submissions. Before proceeding on 19 April, we had the Court taker call the matter twice and also check in the ground floor foyer of the Court to see whether the applicants were waiting there. Secondly, although the applicants did not file submissions in support of their application, their notice of application set out the grounds in sufficient detail to enable us readily to understand the three points they wanted to take on appeal.
[3] An understanding of those three proposed appeal points requires some brief background. By a Deed of Settlement dated 17 April 2002 the Fearys settled litigation they had been involved in with the Commissioner of Crown Lands (the Commissioner) since 1998, when the Commissioner forfeited the Fearys’ lease of some Crown land. The clause in the Deed relevant to the present application is:

2. The Commissioner shall 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.

[4] The parties got into a dispute about the costs referred to in clause 2. The Commissioner brought a proceeding in the District Court which was decided by Judge Doherty in a judgment he delivered on 23 November 2007.[3] An appeal by the Fearys to the High Court was disposed of by French J in a judgment she gave on 18 August 2008. The two judgments were concerned with seven bills the Fearys’ solicitors had submitted to the Commissioner for payment, and the Commissioner’s application to have those bills reviewed by the Law Society.
[5] In terms of Mr and Mrs Feary’s costs in the District Court, French J allowed them $4,500, being some 80% of their costs on a 2B basis. Because the Fearys were only partly successful on their appeal, and because the main issue was novel, French J ordered that the costs of the appeal should lie where they fall.
[6] After receiving French J’s judgment, the Commissioner decided not to continue with his challenge to the bills of costs that had been submitted to him. The Commissioner has paid all seven bills in full.
[7] The issues the Fearys wish to take on appeal are these:

(a) The referral of Bill 6 to the Canterbury District Law Society when no special circumstances existed, nor could exist, that would have justified that referral;

(b) Whether the District Court has jurisdiction to consider applications under section 151 of the Law Practitioners Act 1982;

(c) As to the meaning and application of clause 2 of the Deed of Settlement dated 17 April 2002 between Mr and Mrs Feary and the Commissioner of Crown Lands, which this Court has previously determined (in CIV 2006-485-610) means that the Commissioner will meet “all legal costs” incurred by the Fearys, in particular, what effect is to be given to that agreement in the context of the appeal and whether the Fearys should be entitled to indemnity costs for the District Court proceeding and the High Court appeal.

[8] Given the background we have set out, issues (a) and (b) are moot: the Commissioner has paid the bills. For that reason we decline leave to appeal on issues (a) and (b).
[9] Issue (c) arises because French J interpreted clause 2 as follows:[4]

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 2006-485-610, 7 March 2007, was on a different point. It was not about costs arising out of a dispute about costs.

[10] That is an orthodox interpretation approach which is not obviously wrong. We note that Mr Hugh Rennie QC, in an arbitration ruling given on 30 October 2006, had reached the same view as French J. He stated:

The Commissioner submits that these accounts relate to disputes over costs, threatened proceedings as to costs, negotiations as to costs, and the attendances involved in the extension of my jurisdiction to include the issues of costs. The Commissioner submits that none of these matters are within the 2002 and 2004 agreements on costs. I agree and I determine that to the extent that these accounts relate to disputes as to costs, they are not payable by the Commissioner.

[11] Even if the approach both of French J and Mr Rennie was arguably erroneous, it raises no question of public or general importance meeting the test, under s 67 of the Judicature Act 1908, for a second appeal to this Court. We therefore decline leave to appeal on issue (c) also.

Result

[12] The Fearys’ application for leave to appeal is dismissed.
[13] The Fearys are to pay the Commissioner’s costs for a standard application for leave on a band A basis with usual disbursements.

Solicitors:
Crown Law Office, Wellington for the Respondent

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[1] Feary v Commissioner of Crown Lands HC Christchurch CIV 2008-409-233, 18 August 2008.

[2] Feary v Commissioner of Crown Lands; Buddle Findlay v Commissioner of Crown Lands HC Christchurch CIV 2008-409-0233, 15 December 2008.

[3] The Commissioner of Crown Lands v Buddle Findlay DC Christchurch CIV 2007-009-1097, 23 November 2007.
[4] At [69].