NEVILLE JOHN CUNNINGHAM Appellant. Hearing: 10 March 2014 (further submissions received 13 March 2014) Ellen France, French and Cooper JJ

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1 IN THE COURT OF APPEAL OF NEW ZEALAND CA631/2012 [2014] NZCA 213 BETWEEN AND NEVILLE JOHN CUNNINGHAM Appellant 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: Counsel: Judgment: Ellen France, French and Cooper JJ Appellant in person J W A Johnson and C L Webber for Respondents 30 May 2014 at 2.15 pm JUDGMENT OF THE COURT A B C The appeal and the cross-appeal are dismissed. The application for leave to adduce further evidence is dismissed. The 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. D There is otherwise no order as to costs. REASONS OF THE COURT (Given by Cooper J) CUNNINGHAM v BUTTERFIELD & ORS CA631/2012 [2014] NZCA 213 [30 May 2014]

2 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 [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 [5] We briefly set out the background based on findings in the substantive judgment. [6] 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 1 2 Cunningham v Butterfield [2012] NZHC At the hearing in this Court, Mr Cunningham was assisted by R S Trumper as McKenzie friend. Cunningham v Butterfield [2012] NZHC 614 [substantive judgment].

3 lease with the owner, Mr Donald Burnett, in There were a number of leases, which Whata J found had an informal quality. 3 [7] 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 of the Mt Cook Station land excluding what was then referred to as the Station Trophy Block. The variation agreement restricted the appellant s lease to the Station Trophy Block. It stipulated that he was not to graze cattle or deer on land bordering that block. [8] There were various disputes about these arrangements and following a mediation, a Settlement Deed was signed on 20 December Relevantly for present purposes, cl 6 of the agreement provided that the appellant would: de-stock the Mt. Cook Station paddocks (other than Station Trophy Block) of 150 hinds & their fawns by 7 March 2011 provided that the Trustees pay $8, plus GST (on presentation of an invoice) towards the reinstatement of the elk shed to a state in which it can be used for the handling of deer. Peter Clarke and Neville are to agree on what work is required for this purpose. [9] Disputes continued about whether Mr Cunningham had removed stock, the location of fencing and who was to pay for it, and Mr Cunningham s access to Station Trophy Block. A notice of intention to cancel the lease was then issued on 2 May [10] Further correspondence between the parties failed to resolve the dispute and the respondents issued notice of re-entry and cancellation of lease on 19 June Mr Cunningham s response was to file a proceeding together with an application for an interim injunction. The interim injunction was granted by French J on 7 October 2011, but on the basis that all the stock were to be removed from the Mt Cook paddocks by 4 November Although the respondents initially expressed concern that Mr Cunningham did not comply with that stipulation, it was not pursued before Whata J At [5]. At [11]. Cunningham v Butterfield HC Timaru CIV , 7 October 2011.

4 The substantive judgment [11] Whata J addressed the key issues under three headings: (a) Whether Mr Cunningham breached cl 6 of the Settlement Deed. (b) If Mr Cunningham had breached cl 6 of the Settlement Deed, were the trustees entitled to cancel the Mt Cook Station lease? (c) If the trustees were entitled to cancel the lease, should Mr Cunningham be entitled to relief from cancellation? Breach of cl 6 [12] The Judge found that Mr Cunningham had breached cl 6 of the Settlement Deed by failing to destock 150 hinds and their fawns by 7 March Entitlement to cancel [13] The Judge held that after the execution of the variation, Mr Cunningham had no ongoing right to occupy under the lease the Mt Cook Station paddocks, except for the Station Trophy Block. The Settlement Deed had compromised whatever pre-existing claims the parties might have had, and the trustees had a right to cancel for breach of the removal clause as clarified by the Settlement Deed. 7 Relief [14] The Judge considered that Mr Cunningham had intentionally moved stock back onto the property even though he knew he was under an obligation to remove his stock and until the latter part of 2011 any removal had been haphazard. 8 However, Mr Cunningham had put in a very significant effort to meet the terms of the High Court judgment of 7 October 2011, even if he had not fully succeeded in removing stock by the date required in the judgment. The removal of stock was difficult having regard to the arduous terrain, and his conduct should not be seen as At [32]. At [57]. At [63].

5 at the most egregious end of the scale. 9 Further, the failure to remove stock had not had any significant or lasting adverse effect on the respondents operations. 10 [15] Despite difficulties in the relationship between Mr Cunningham and the respondents, and in particular Mr Bisset (the Mt Cook Station farm manager), the issues were not one-sided. 11 In particular: 12 The failure on the part of the lessors to rectify the failure to supply electricity is not reasonably explained. The failure of the trustees to engage in meaningful dialogue around, for example, alternative access to Station Trophy Block, does not cast them in a favourable light. [16] As to the conduct of the respondents, the Judge said: [69] I accept Mr Whiteside s submission that Mr Butterfield fairly acknowledged proportionate responsibility for the dispute which has arisen and that the lion s share of the fault lies with Mr Cunningham. I was also impressed by Mr Bisset and the honest way in which he delivered his evidence and I have no reason to suspect that he, while frustrated by Mr Cunningham, has acted in any underhand way. Nor, as Mr Whiteside suggests, do I put any significance on the evidence relating to discussions that occurred a year or more ago. Plainly there are different points of view, plainly there are frustrations, and both parties have demonstrated obstinacy. But the actions of the defendants in my view were not the primary cause of the problem and that is a factor favourable to them. [17] In a paragraph headed A final comment the Judge recorded his view that the genesis of the dispute was in poorly conceived contractual arrangements. 13 That had the effect that the obligations of the parties were ambiguous or insufficiently detailed particularly as to critical paths and costings. He found: In my view both parties must accept some blame for the lack of clarity, and it is a further reason why it would be disproportionate in the circumstances to refuse relief to Mr Cunningham. I should repeat, however, that Mr Cunningham has received all of the indulgence that he is entitled to even given those background facts. [18] In the result, the Judge decided to make an order granting relief from cancellation as sought by Mr Cunningham. Having done so, he noted that the parties At [63]. At [68]. At [64]. At [64]. At [71].

6 had not addressed him on conditions which might apply to the grant of relief. He continued: 14 In my view, given the nature of the breach, this might be a case where relief from forfeiture might be granted in tandem with an award of damages. Having said that, I am not encouraging any elongation of this dispute. The parties would do well to consider reaching agreement on this aspect and on the question of costs. In this regard I grant leave to the parties to file submissions on other relief and costs within 14 days with seven days for replies. The costs judgment [19] The Judge dealt with the question of costs on the papers. [20] He noted that the parties had been unable to reach agreement on costs, and both had filed lengthy submissions dealing with the question of damages. He recorded that given the cost and time that would be involved in making a thorough assessment of damages he had asked the parties if they were prepared to engage in a judicial settlement conference. Counsel for the respondents had then decided not to seek damages and had expressed the view that would avoid the necessity for any settlement conference and attendant further costs. [21] However, in the meantime Mr Cunningham had sought a hearing on damages. In his judgment the Judge pointed out that he had not contemplated awarding damages to Mr Cunningham and any issue as to damages would have been limited to damages in favour of the defendants. He continued: 15 Further, and perhaps more fundamentally, the plaintiff did not seek damages in his statement of claim. On that basis I do not consider it is appropriate and/or necessary for me to consider a damages claim by the plaintiff. [22] The issue of costs was then dealt with very briefly. The Judge noted that both parties had indicated that they had incurred substantial costs as a consequence of the proceedings. He then said: 16 In the end I have resolved that relief ought to be granted, but as my judgment indicates, I was not satisfied with the way the plaintiff had approached At [73]. At [3]. At [4].

7 matters. Given that I consider that both parties have had an equal measure of success in this case, I resolve that costs should lie where they fall. Judgment accordingly. Application for leave to adduce further evidence [23] Mr Cunningham sought leave to adduce further evidence by affidavit under r 45(1) of the Court of Appeal (Civil) Rules The application was opposed. We record that having heard the argument we indicated that we would not grant leave, and give our reasons in this judgment. [24] This Court described the principles relevant to such applications in Erceg v Balenia Ltd as follows: 17 The Supreme Court has confirmed that the well understood and firmly established principles developed under previous rules remain. Those requirements are that the evidence be fresh, credible and cogent. It will not be regarded as fresh if it could, with reasonable diligence, have been produced at the trial. [25] Mr Cunningham submitted that admitting the further evidence would be appropriate on the basis that it consisted of further examples of conduct on the part of the respondents that in Mr Cunningham s view was oppressive and showed that Whata J had erred when exercising his discretion on costs. However, we concluded that the evidence was either not fresh in the sense required, or not cogent. [26] In the former category were: (a) observations about Mr Cunningham s personal circumstances made by Mr Joseph Butterfield (one of the respondents) to a Mr Brian Kenton in early May If this evidence was relevant it could clearly have been the subject of evidence at the trial, which did not commence until 13 February 2012; 17 Erceg v Balenia Ltd [2008] NZCA 535 at [15] citing Paper Reclaim Ltd v Aotearoa International Ltd (Further Evidence) (No 1) [2006] NZSC 59, [2007] 2 NZLR 1; and Rae v International Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 190 (CA) at 192; see also Airwork (NZ) Ltd v Vertical Flight Management Ltd [1999] 1 NZLR 641 (CA) at

8 (b) an affidavit sworn by a Mr Greg McKay, about an incident in which he and his associates were confronted and abused when they were returning from a hunting trip. However, Mr McKay said in his affidavit that he had written a formal complaint about this incident to Mr Cunningham on 26 April It could therefore have been raised in the High Court if relevant; and (c) an affidavit sworn on 1 February 2014 by Mr Stephen Berkett. The affidavit was confirming a formal statement that Mr Berkett had given to Mr Cunningham in December This evidence too could have been raised, if relevant, in the High Court. [27] In the not cogent category were: (a) statements made to the police by Mr Nathan Askew and Mr and Mrs Cravens concerning a confrontation that allegedly occurred on 22 May 2013 between Mr Askew and Mr Bisset. Since the events recorded in the statements arose well after the issues dealt with by Whata J they are not relevant; (b) evidence of correspondence sent by Mr Butterfield to Mr Cunningham on 19 September and 20 December The correspondence concerns matters arising after Whata J s judgment; and (c) further allegations concerning Mr Bisset made in an sent by Mr Cunningham to Mr Butterfield on 17 September [28] We were satisfied for these reasons that the application for leave to adduce further evidence was without merit and should not succeed. The appeal [29] Mr Cunningham advanced his appeal by alleging oppressive behaviour on the part of the respondents who he said had been motivated by a desire to bully him into vacating the land for their own commercial gain. He claimed that there had been a

9 conspiracy against him that commenced soon after Mr Burnett died. He submitted that an offer to settle, sent to his solicitors on 20 January 2012, was a further example of the respondents oppressive conduct. [30] He referred to various passages in the evidence in the High Court to establish misconduct on the part of Mr Bisset and also by the respondents and he identified various errors that he claimed affected the conclusions reached by Whata J in the substantive judgment, in particular as to whether cl 6 of the settlement agreement had been breached. He also claimed that the Judge had failed properly to take into account evidence that was favourable to him. He amplified his submissions in a further handwritten document filed after the hearing, in which he gave additional examples of errors he claimed the Judge had made. He submitted that not only should there be an award of costs in his favour, but that he should be entitled to increased or indemnity costs. [31] The difficulty that he faces in advancing these arguments is that there was no appeal from the substantive judgment of Whata J. At one point in argument Mr Cunningham questioned whether he had an opportunity to appeal the judgment, since the Judge had left open the question of costs and damages when the judgment of 3 April 2012 was delivered. It may be that he would have faced a difficulty in appealing, because he had succeeded in obtaining the relief that he sought. In any event, having failed to take that course, and instead simply filing an appeal against the costs judgment, Mr Cunningham cannot now properly be heard to argue that there were material errors in the substantive judgment. [32] In the end the best argument that Mr Cunningham advanced was based on the fact that in terms of the outcome he was successful. Although the Judge found that he had breached his obligations to the respondents, nevertheless the Court exercised its discretion so as to grant relief against cancellation. [33] For the respondents, Mr Johnson emphasised that Whata J found that the lion s share of responsibility for the dispute rested with Mr Cunningham Substantive judgment, above n 2, at [69].

10 Further the Judge found that the respondents had a right to cancel the lease, and notices that they issued were valid. [34] Mr Johnson submitted that the terms of the settlement offer could not constitute unreasonable or oppressive behaviour and he claimed that in fact the letter contained terms more beneficial to Mr Cunningham than the substantive judgment. [35] He submitted that although the Court had granted relief against forfeiture, that was essentially as an indulgence. On an issue by issue basis, he submitted that the respondents had achieved a greater measure of success and it would be inappropriate to award costs against them. He relied on a number of authorities in which costs had been awarded notwithstanding the grant of relief against forfeiture, and argued that any award of costs in favour of Mr Cunningham would be contrary to those authorities. The cross-appeal [36] Mr Johnson essentially advanced the same argument in support of the cross-appeal as those on which he relied to oppose Mr Cunningham s application for costs. He submitted that Whata J erred by failing to take into consideration the effect of the settlement offer and claimed that Mr Cunningham had rejected it without reasonable justification. He argued that the refusal was so unreasonable that the respondents ought to be entitled to indemnity costs in terms of r 14.6(4) of the High Court Rules, or at least increased costs as contemplated by r 14.6(3), after the date of the offer. [37] Mr Johnson repeated in this context his argument that costs should have been awarded to the respondents because relief had been granted to Mr Cunningham as an indulgence. He relied on a number of authorities which he claimed established a general rule to that effect, including Holdgate v Holdgate, QT Hospitality Ltd v Oxford Holdings Ltd, 19 and other cases that we will mention below. 19 Holdgate v Holdgate HC Auckland CP303/96, 24 September 1996; QT Hospitality Ltd v Oxford Holdings Ltd (2007) 8 NZCPR 817 (HC).

11 [38] In response, Mr Cunningham submitted that the conditions attaching to the settlement offer effectively amounted to a rewriting of the lease, and accepting the conditions would have involved him assuming an open-ended and potentially crippling liability in respect of boundary fencing. That would have been unreasonable. He maintained his stance that rather than an award of costs in favour of the respondents, an award should have been made in his favour because he had succeeded in obtaining relief, and that showed that the litigation was only necessary because of the respondents unreasonable attitude. Discussion [39] Rule 14.1(1) of the High Court Rules provides that all matters concerning costs are at the discretion of the court. Rule 14.2 sets out general principles that apply to the determination of costs. These include the principle that the party who fails with respect to a proceeding or an interlocutory application should pay costs to the party who succeeds. 20 Another principle is that so far as possible, the determination of costs should be predictable and expeditious. 21 [40] Rule 14.6 contemplates awards of increased costs and indemnity costs. The former may be awarded under r 14.6(3)(b) where the party opposing costs has contributed unnecessarily to the time or expense of the proceeding. One of the specific instances given is failing without reasonable justification to accept an offer of settlement whether it is an offer made under r or some other offer to settle or dispose of the proceeding. [41] Rule provides: Written offers without prejudice except as to costs (1) A party to a proceeding may make a written offer to another party at any time that (a) (b) is expressly stated to be without prejudice except as to costs; and relates to an issue in the proceeding Paragraph (a). Paragraph (g).

12 (2) The fact that the offer has been made must not be communicated to the court until the question of costs is to be decided. [42] It is appropriate to refer also to r 14.11(1), which provides: The effect (if any) that the making of an offer under rule has on the question of costs is at the discretion of the court. The settlement offer [43] The letter of 20 January 2012 was couched as an offer to withdraw the notice that the respondents had issued under the Property Law Act. It asserted that if the notice were withdrawn, there would be no action against which Mr Cunningham needed to seek relief. Mr Cunningham did not seek to argue that the letter was not an offer within the ambit of r [44] Whata J made no mention of the offer to settle. Because of that, we are unsure whether or not he took it into account in reaching his decision on costs. However the arguments raised in this Court require us to consider explicitly what effect the letter ought to have had on the issue of costs. [45] The offer was subject to five conditions expressed as follows: 1. That it is accepted by your client that access to the Station Trophy Block is as marked on the map sent to you with our letter of 11 November 2011; 2. That the position as set out in Joe Butterfield s letter of 22 December 2011 regarding the fencing of the Niggerhead, the security fence, and the fencing of the Cox s Downs/Braemar boundary are all accepted by your client; 3. That in order to assist matters going forward there be a written Deed of Lease prepared, including terms that your client pay for his electricity used, as metered to him, and that he attends to all fencing repairs and maintenance at his cost (whether boundary fencing or internal to him). 4. That your client file a Notice of Discontinuance of the present proceedings; and 5. Costs lie where they fall. [46] The letter concluded by noting that given briefs of evidence needed to be filed by Friday 27 January, an urgent response was needed. For that reason, the offer

13 was said to be open for acceptance through until 5pm on Monday 23 January Mr Cunningham rejected the offer by his letter of that date. [47] Although he also raised issues about conditions 1 and 2 of the offer, we infer from his argument in this Court that Mr Cunningham s major concern centred on condition 3. He complained that this effectively amounted to a re-writing of the lease and that had he agreed to become solely responsible for maintaining the integrity of boundary fences on the property his obligation would have been open-ended and would have related to approximately 50 kilometres of fence line surrounding the leased land. That would have been particularly onerous because, as he put it, the land is mountainous, subject to wash-out, slips and damage by high winds and snow. [48] In our view it was unrealistic, especially having regard to the history of the dispute as it had already developed, to have expected that the offer, made on a Friday would be accepted by the following Monday. As Mr Johnson said in his written submissions, the issues between the parties were numerous and have been ongoing for some time. [49] Further, while we accept Mr Johnson s proposition that condition 2 of the letter (read together with the letter of 22 December 2011 to which it referred) appears largely to reflect matters that had previously been agreed between the parties, we also consider that there is substance in Mr Cunningham s concern about the potentially broad ambit of the obligations he would have assumed by agreeing to condition 3. Mr Johnson submitted that the boundary fences were only in place for the purposes of Mr Cunningham s use of the land, but while that may be so, we think that in this respect the condition raised a predictably contentious issue, one that does not appear to have been previously canvassed between the parties. Further, having regard to the history of the relationship between the parties the reference to a new deed being drawn up would also have made acceptance of the offer problematic. [50] Overall we are of the view that the settlement offer ought not to have been influential in the determination of the costs issues. That conclusion necessarily disposes of the respondents application for increased or indemnity costs.

14 Equality of success [51] We consider that the parties may be said to have achieved a rough equality of success in terms of the issues determined in the High Court. While the respondents established that Mr Cunningham had breached his obligations and was responsible for the lion s share of the dispute, Whata J also found that the genesis of the dispute lay in the poorly conceived contractual arrangements, and importantly, that Mr Cunningham was entitled to the relief he sought. Relief an indulgence [52] Mr Johnson argued that since relief had been granted to Mr Cunningham as an indulgence, costs should for that reason have been granted to the respondents. We accept that in Holdgate v Holdgate it was said that a grant of indulgence is conventionally made at the expense of a costs award against the party obtaining the indulgence. 22 The circumstances of that case were far removed from this, but we accept it illustrates the general proposition to which Mr Johnson referred. [53] Closer to the present facts are cases where lessees have obtained relief against forfeiture subject to orders that the costs be paid to the lessor who had opposed the grant of relief. Thus, in QT Hospitality Ltd v Oxford Holdings Ltd relief was granted against the forfeiture of the lease in circumstances where rent had been in arrears but was subsequently brought up to date. Asher J observed that the lessee had been seeking an indulgence, and the lessor had every reason to be frustrated with and distrustful of the lessee: there had been a succession of dishonoured cheques and failed commitments to make payments. 23 [54] Mr Johnson also referred to McKenna v North Harbour Taverns Ltd, Yoo v Dominion Income Property Fund Ltd and Wislang v City Realties (Holdings) Ltd. 24 In all of those cases relief against forfeiture was granted subject to an award of costs in favour of the lessor who had opposed the grant of relief Holdgate, above n 19, at 3. QT Hospitality Ltd, above n 19, at [37]. McKenna v North Harbour Taverns Ltd HC Auckland CP459/91, 22 July 1991; Yoo v Dominion Income Property Fund Ltd HC Auckland CIV , 13 July 2005; Wislang v City Realties (Holdings) Ltd HC Auckland CP567/96, 6 December 1996.

15 [55] They may be contrasted with another decision of Asher J in Ponsonby Mall Trust Ltd v New Zealand Food Industries Ltd in which the plaintiffs had failed to secure an order for possession and were unsuccessful in their claim for damages. 25 The defendant had obtained an order pursuant to s 120 of the Property Law Act 1952 that the plaintiffs grant a renewal of the defendant s lease. There was no doubt that the defendant was the party who had succeeded in the action. However, the defendant had failed to renew the lease and it was its error that gave rise to the litigation. Asher J found that the defendant had made an innocent mistake, and had not engaged in any sharp dealing or attempt to take an advantage. 26 He decided that costs should go to the defendant, applying the normal rule that costs should follow the event. [56] Of particular relevance here is Asher J s conclusion that, while the usual pattern prior to 1995 was to award costs to the unsuccessful landlord in relief against forfeiture cases, since the new costs regime came into force on 2 January 2000, the outcomes had been more varied: while costs were awarded to the landlord in two cases, in another two costs had been awarded to the defendant. 27 [57] In our view the cases on which Mr Johnson relied should not be seen as establishing a general rule that costs will usually be granted in favour of a lessor who has unsuccessfully opposed an application for relief against forfeiture made by a lessee. While we accept that the cases temper the general rule that costs should follow the event, we do not consider that the position can be put on any more definite basis. Rather, what is required is a principled application of the rules. In cases such as this that may require an analysis of the facts to see what has given rise to the litigation, taking into account the conduct of the parties and whether one of them has contributed to its costs or engaged in other conduct that should influence the costs decision Ponsonby Mall Trust Ltd v New Zealand Food Industries Ltd HC Auckland CIV , 8 March At [16]. At [8] [9] citing Walsh v Utting [2004] 1 NZLR 402 (HC); Umbria Cafe v Bridgend Holdings Ltd HC Auckland CIV , 4 October 2004; Duck v Satterthwaite Holdings Ltd HC Christchurch M32/00, 9 August 2000; and Timberco (1999) Ltd v Sarvee Acquisitions Ltd (2005) 7 NZCPR 429 (HC).

16 [58] Here the factors that favour an award of costs to the respondents are that the Judge found that Mr Cunningham was in breach of his contractual obligations, that he was primarily responsible for the dispute that had arisen and also observed that Mr Cunningham had received an indulgence. Counterbalancing those considerations are Mr Cunningham s success in the litigation: if r 14.2(a) were to be strictly applied there is no doubt that he was the party who succeeded, and the respondents failed. We note also the Judge s findings that Mr Cunningham s conduct was not at the egregious end of the scale, and that the issues affecting the relationship of the parties were not one-sided. Added to this, as the Judge observed, the contractual arrangements were poorly conceived. [59] It is clear to us that this was hard fought litigation between parties who had fallen out in a significant way and where there were clearly tensions affecting their ongoing relationship. There were a significant number of factual disputes, and arguments about the contractual provisions that applied and what they meant. It is the kind of case where the views of the trial judge on where costs should properly fall are inevitably influential on appeal. As this Court observed in Mansfield Drycleaners Ltd v Quinny s Drycleaning (Dentice Drycleaning Upper Hutt) Ltd: 28 In exercising the discretion the Court concerned will be influenced by a myriad of details that are difficult to replicate on appeal. Consequently appellate Courts will be particularly slow to interfere. As Cooke P said in Thoroughbred and Classic Car Owners Club Inc v Coleman 25/11/93, CA203/93 at p 2: It is unusual for an appeal to be brought to this Court on costs only and only rarely could an appeal succeed in this field, for this Court is always especially reluctant to disturb a decision of a High Court Judge on a matter as discretionary as that of costs. [60] Of course, as the Supreme Court said in Manukau Golf Club Inc v Shoye Venture Ltd, although r 14.1 renders decisions on costs by the High Court discretionary, the discretion must be exercised judicially, and the discretion is qualified by the specific rules. 29 But in order to upset the decision made in the Mansfield Drycleaners Ltd v Quinny s Drycleaning (Dentice Drycleaning Upper Hutt) Ltd (2002) 16 PRNZ 662 (CA) at [22]. Manukau Golf Club Inc v Shoye Venture Ltd [2012] NZSC 109, [2013] 1 NZLR 305 at [7] citing Glaister v Amalgamated Dairies Ltd [2004] 2 NZLR 606 (CA) at [9]; and Body Corporate v Auckland City Council (2001) 15 PRNZ 372 (CA) at [19].

17 High Court it would be necessary for this Court to conclude that the decision was wrong in principle or affected by some relevant error. 30 We are not satisfied that is the case here. Result [61] Both the appeal and the cross-appeal are dismissed. [62] We have earlier found that the application to adduce further evidence had no merit. The application is dismissed. The respondents are entitled to costs on that application, to be determined as for a standard application on a band A basis, together with usual disbursements. [63] Since both the appeal and the cross-appeal have been unsuccessful we make no other order for costs in this Court. Solicitors: Wynn Williams, Christchurch for Respondents 30 Shirley v Wairarapa District Health Board [2006] NZSC 63, [2006] 3 NZLR 523 at [15].