THE COURTS.

New Zealand Mail, Issue 810, 9 September 1887, Page 22

THE COURTS.

SUPREME COURT.

IN THE SUPREME COURT OF NEW ZEALAND, IN BANCO. Arihi te Nahtt v. Locke and others. (Judgment of Prondergast, C. J., delivered 25fch June, 1887 ) The questions that have been argued before me in this case are such as would have arisen on a motion to review a taxation of a bill of costs drawn according to the system whioh existed before the passing of the Judicature Act; but in consequence of an unfortunate course of proceedings, I do not feel myself at liberty to give such a decision on these questions as would enable the parties, if disatisfied, to take the matter into a court of appeal. The motion made on behalf of the defendants was to set aside the decree drawn up in the case, and all proceedings taken thereunder, in the taxation of the plaintiff's bill of costs, on the ground that it was not in accordance with the decree, so far as the same had been pronounced, and also that the decree had not been duly sett'ed. Unless the defendants’ moving are from what has taken place estopped from moving in the/matter, the motion must succeed, for undoubtedly the decree drawn up was not in accordance with what the Court had pronounced, and moreover, was drawn up irregularly and improperly, and before the Court had pronounced a complete decree, so far as“it was intended then to deal with the suit. It is I think unnecessary to go very minutely into the circumstances attending the pronouncing of the decree, and the drawing of it up; it is sufficient to state that the decree drawn up orders the taxation to be at Gisborne, whereas, in ordinary course, it would have been at Napier, and it was not ordered by the Court to be at Gisborne ; further, that though the Court expressed an opinion that the plaintiffs were in this case entitled, hot only to costs, but to their * charges and expenses,’ yet the matters as to which they were to have ‘ charges and expenses * were not mentioned, or at all determined ; and further, that the Court had not completely disposed of the matter which it did partly determine ; namely, the proportions in which the Native owners were entitled to the land ; moreover, though it was considered that in this case the costs of all parties ought to be charged on the land, no definite decree was made as to how this should be carried out. I heard the case and delivered judgment, and before concluding its delivery ascertained that there was a question whether or not the evidence was sufficiently before me to be able to decide whether the shares were equal, or whether or not it would be necessary to send questions as to that to the Native Land Court, for the purpose of ascertaining the interests, according to Native custom, of the parties entitled in the land which had been subsequently granted. That matter was not disposed of, nor was it reserved for further consideration, in the sense that it was intended that an interlocutory decree should be drawn up. .Althougn a notice to settle the minutes of the decree was given, it was from misunder* standing not proseouted, and the decree was by misconception drawn up and sealed under the supposition that I had approved of it. After this, it is, I think, satisfactorily proved that all the parties had to some extent assented to the taxation of the plaintiff’s costs taking place at Gisborne, and accordingly Mr Logan, the solicitor for some of the defendants, and with the assent of others of the defendants, did attend that taxation ; subsequently on the taxation proving unsatisfactory to those of the defendants who were not in the same interest as the plaintiff’s, it was proposed to move to set aside the decree for the reasons above stated.

It was then suggested that as there was no probability of that motion being taken in Wellington before I went on circuit, and as what the parties substantially wanted was a review of the taxation, that by consent on the motion to set aside the decree, which might be taken at Napier, the taxation could be reviewed ; and that as the main objection to the bill of costs wa3 the excessive fees allowed to the plaintiffs’ counsel and solicitor, the Court in reviewing tho taxation should not be restrained by any supposed rule from interfering with the registrar’s discretion, 'as to amount of fees allowed to counsel. Some such arrangement' of a very vague and indefinite character was arrived at ; and ' moreover, I am not satisfied that all the parties are bound by that arrangement. However, the motion came on for argument, and substantially the question argued was tho review of the taxation. If this were strictly a review of taxation, I should have no difficulty in at once deciding that as to the allowance of all counsel’s fees, and Mr Ward’s personal allowance, the taxation must be reviewed, on the ground that the taxing officer exercised no discretion ; he took it for granted that he was bound to allow all Shat Mr Ward, the solicitor for the plaintiffs authorised, inasmuch as he held a general power-of-attorney from Arihi te Naim, one of the plaintiff's, authorising him to do as he thought fit in the matter. This is too absurd : the impropriety, to use no other expression, of Buch a proceeding is too apparent, bnt even if Arihi herself had expressly authorised these extraordinary expenses, and it is said she had done so, that would not have justified the allowance in a taxation of costs, to be taxed as between solicitor and client, to be paid out of a fund in which others were interested. In such a taxation there should be but little difference between the costs allowed as against the fund, and a taxation between party and party, In my opinion on such a taxation, the express instructions of the client afford no justification ; only such costs should be allowed as are in ordinary course and reasonable ; I am also of opinion that the charges for counsel’s fees, and Mr Ward’s allowances and fees, were altogether excessive and unreasonable in amount; there are also very many matters charged that ought not to have been allowed at all. These allowances for counsel’s and solicitor’s fees form a large part of the bill of costs ; there are numerous other items which ought not to have been allowed, as to some of which objection was made at the taxation —some not. No doubt, by a very salutary rule, objection ought to be taken before the taxing officer as to contested items, and a note made as to those which are contested. However, in this very peculiar, case, I have arrived at the conclusion that justice requires that the decree as drawn up should be set aside, and the taxation thereunder also of course set aside. The bill of costs can only be described as enormous ; it was taxed before the deputy registrar at Gisborne, in the absence of the registrar there ; he manifestly took considerable pains in the performance of the duty, but must necessarily be without experience. The review, even if limited to the excessive charges formally objected to, could not be conducted by the same officer, for manifestly any future taxation must be at Napier ; the error iu this respect cannot be continued. The bill of costs is not drawn so as to give such information as to enable a proper taxation to be made. Even if I had thought (which I did not), that there had been such a definite and clear understanding amongst the parties as would have estopped them from moving to set aside this decree and taxation, I should have been of opinion that the Court was not bound by that arrangement. But lam clearly of opinion that there is no course open in this case other than to set aside the decree, on the ground that it does not express the judgment of the Court, and even so far as it does, that was drawn up I cannot on this motion give any decision as to what the decree should be a 3 to the various matters left unsettled ; as to the question of the allowance of costs as between . solicitor and client to be paid out of a fund in which others are interested. I am of opinion that where such costs are allowed, the taxing officer should take the scale in the code as his guide, but that where other ordinary and necessary proceedings have been taken, not covered by the scale, then in a taxation between solicitor and client, some allowance should be made in respect of these, but the taxing officer should stillso far as possible guide himself by the scale. It is to be hoped, however, that when the decree comes to be settled, it may be found possible to fix by consent or otherwise, a grosß sum for the costs, for this is more in accordance with the spirit, if not the requirements of the Judicature Act and the scale thereby fixed. I allow the costs of the motion to the defendants, Toraoana and others, who appeared by Messrs Carlile and McLean, at fifteen guineas, to be their costs in the cause, and the.same as the trustees of Arihi ; there was ~A<sjpeoial reason for Arihi’s trustees beingSteiwarately represented. OLujiiutsc no costs of the motion will be the plaintiffs as costs in the cause. Lhaire’tiesitated whether I should not order that they or their solicitors should pay the defendants’ costs of this motion.

CIVIL SITTINGS. Monday, September 5. (Before his Honor Mr Justice Richmond.) SEAGER V. THE CORPORATION OF WELLINGTON. In this case the plaintiff, Charles Seager, engineer, alleged that in 1865 he was possessed, and still continued to be possessed of a parced of land forming part of section 225 on the plan of the city, "bunded on the north by low-water mark, on the south by Grainger-street, on the easo by Cambridge-terrace, and on the west by part of section 224. That the defendant Corporation on the Ist January, 1878, unlawfully took possession of that part of the land which lies to the northward of a line drawn from the extremities of lines 500 links in length, extending and measured from Courtenayplace along the eastern and -western boundaries of the said section, and have ever since retained the same and withheld it from the plaintiff. The plaintiff therefore sought to recover possession of the land and LSOO for profits thereof from the Ist January, 1878. The defendant Corporation alleged in their statement of defence that in 1852 the low-water mark was not outside section 225 ; that under the Statute oLLimitations the plaintiff had been out of possession for 20 years ; and that the Corporation’s title under tlie Land Transfer Act is indefensible. Mr Travers appeared for the plaintiff, and Mr T. F. Martin, with him Mr Skerrett, for the defendant. Several witnesses were examined for the plaintiff, principally as to the high and low water marks in the vicinity in former years. At half-past 4 the Court adjourned till next day. IN CHAMBEBS (FOR BANCO). Tuesday, September 6. (Before His Honor the Chief Justice. ) His Honor delivered the following judgments : ABBOTT V COMMISSIONER OF STAMPS. In this ease, which raised the question as to whether Native land duty was payable on the value of the land conveyed or the value of the interest passing by the conveyance, his Honor supported the latter view and allowed the appeal, with twenty guineas costs. EX PARTE THE OFFICIAL ASSIGNEE, IN RE CARTER. This was a Napier case. Application refused with costs. MAITAI V ASSETS COMPANY. This was a Gisborne case, in which certain Natives sought to avoid the title of the defendants to land at Napier. Judgment was given for the defendant, with costs. , SOMERVILLE AND ANOTHER V AUSTRALIANMERCANTILE UNION INSURANCE COMPANY. In this case, which was tried at Gisborne last session, the plaintiffs were mortgagee and mortgagor of premises which had been destroyed by fire. The defendant Company set up as defences the want of sufficient interest in the mortgagee, and other defences of a technical nature. The Court, however, gave judgment for the plaintiff Somerville, with costs. ■