Cunningham v Butterfield

[2014] NZCA 213

IN THE COURT OF APPEAL OF NEW ZEALAND

CA631/2012
[2014] NZCA 213

BETWEEN	NEVILLE JOHN CUNNINGHAM Appellant
AND	JOSEPH GORDON BUTTERFIELD, EUAN BOYD LINDSAY HILSON AND CATRIONA MACKAY BEATOCK BAKER AS EXECUTORS AND TRUSTEES IN THE ESTATE OF DONALD MOUNT COOK BURNETT Respondents

Hearing:	10 March 2014 (further submissions received 13 March 2014)
Court:	Ellen France, French and Cooper JJ
Counsel:	Appellant in person J W A Johnson and C L Webber for Respondents
Judgment:	30 May 2014 at 2.15 pm

JUDGMENT OF THE COURT

AThe appeal and the cross-appeal are dismissed.

BThe application for leave to adduce further evidence is dismissed.

CThe appellant must pay the respondents costs on the application to adduce further evidence calculated as for a standard application on a band A basis and usual disbursements.

DThere is otherwise no order as to costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by Cooper J)

Introduction

1. The appellant, Mr Cunningham, appeals and the respondents cross‑appeal against a judgment of Whata J dated 28 August 2012 in which he directed that costs should lie where they fall (the costs judgment).[1]  That judgment followed a judgment delivered on 3 April 2012 in which he granted the appellant’s claim under s 253 of the Property Law Act 2007 for relief against cancellation of a lease (the substantive judgment).[2]

   [1]Cunningham v Butterfield [2012] NZHC 2174. At the hearing in this Court, Mr Cunningham was assisted by R S Trumper as McKenzie friend.

   [2]Cunningham v Butterfield [2012] NZHC 614 [substantive judgment].

2. The appellant says effectively that because his application was granted he was entitled to the costs of the litigation.  The respondents maintain that on an issue by issue basis they were more successful in the High Court and that the appellant was granted relief as an indulgence.  They refer to cases in which the High Court whilst granting relief in similar circumstances has ordered costs in favour of the unsuccessful lessor.

3. The respondents also rely on passages in Whata J’s judgment in which he attributed the main responsibility for the dispute to the appellant.  Further, they rely on the terms of an offer to settle made without prejudice except as to costs prior to the trial, but not referred to in the costs judgment.  They claim that the offer to settle is another reason that they should have been awarded costs.

4. Both parties also argue that they were entitled to increased or indemnity costs. 

Background

1. We briefly set out the background based on findings in the substantive judgment.

2. The appellant leases part of the land comprised in Mt Cook Station, which he uses for the purposes of a big game hunting business.  He originally entered into the lease with the owner, Mr Donald Burnett, in 2004.  There were a number of leases, which Whata J found had an “informal quality”.[3]

   [3]At [5].

3. On 13 April 2010 the parties entered into a “variation of leases”.[4]  Mr Burnett at that stage wanted to pursue the farming of merino sheep on part…