Ciccarello v Bunton

[2011] SASCFC 34

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Civil)

CICCARELLO v BUNTON

[2011] SASCFC 34

Judgment of The Full Court

(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Anderson)

29 April 2011

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - PARTICULAR CASES - OTHER MATTERS - COSTS

Application for permission to appeal against an order for costs - where plaintiff issued proceedings in the Magistrates Court relating to the location of the fence dividing the plaintiff and defendant's properties - where defendant counterclaimed under the Encroachments Act 1944 (SA) - where plaintiff arranged for a survey to be undertaken - where both parties relied on that survey, which indicated that fence not properly located on boundary - where Magistrate dismissed both claim and counterclaim - on appeal to a single Judge of Supreme Court, Judge suggested that a referral regarding the survey be made to the Surveyor-General - where previous survey relied upon in Magistrates Court found to be inaccurate, and fence correctly located on boundary - where Judge ordered that there be no order as to costs either in the Magistrates Court or in respect of the appeal.

Held (Gray and Sulan JJ, Anderson J in dissent): Permission to appeal granted - appeal allowed in part – misapprehension of fact relevant to exercise of discretion as to costs of Magistrates Court proceedings - Judge failed to give sufficient weight to the circumstances which existed at the time of the Magistrates Court proceedings - order that plaintiff pay defendant costs in the Magistrates Court - no further order as to costs.

Encroachments Act 1944 (SA), referred to.

CICCARELLO v BUNTON
[2011] SASCFC 34

Full Court        Gray, Sulan and Anderson JJ

GRAY and SULAN JJ:

1. This is an application for permission to appeal against an order for costs.  The application has been referred into Court for the making of oral submissions.  Those submissions were presented on the basis that if permission were to be granted the appeal would be heard instanter. 

2. The dispute between the parties related to the location of a fence dividing their respective properties in suburban Adelaide.  Haydn Scott Bunton, a medical practitioner, initiated proceedings in the Magistrates Court seeking orders that the dividing fence between his property and that of Vincenzina Ciccarello, be moved from its then location and be erected on the certified boundary.  In addition, he sought damages of $40,000.00.  It appears that Dr Bunton had acquired the property as a beneficiary of his grandfather’s estate.  He had entered into a contract to sell the property, conditional on a favourable resolution of the boundary issue.  Ms Ciccarello has resided on her property for more than 25 years and the dividing fence between the properties has been in its present position for more than 50 years.  Repairs have been undertaken on the fence from time to time.  Ms Ciccarello counterclaimed seeking an order under the Encroachments Act 1944 (SA).

3. Dr Bunton arranged for a survey to be undertaken.  The survey, dated 28 July 2009, established that the fence dividing the properties was on the incorrect line and that a concrete slab and paving stones that formed a driveway on Ms Ciccarello’s property encroached on Dr Bunton’s property.  An early trial was ordered having regard to the terms of the contract of sale entered into by Dr Bunton.

4. At trial both parties accepted the survey that had been obtained by Dr Bunton.  The Magistrate, in a carefully reasoned judgment, concluded:

   I reject the contention by the plaintiff’s counsel that the fence should be reinstated back to the true boundary.  I specifically find that the current fence is an adequate fence and should not be replaced.

   I accept [counsel for the defendant’s] submission that the proper order is to direct the conveyance of the land to the defendant. I further find that there should be no order made for compensation to be paid by Ms Ciccarello to the plaintiff for any loss of use of the encroached land under s.12 of the Fences Act or for the conveyance of the land to the defendant under s.4 of the Encroachments Act.

   I find that the appropriate orders to be made in this matter are as follow:-

   That the plaintiff is to do all things necessary to facilitate the transfer to the defendant of the land in question.

   That the defendant is to pay all costs associated with the transfer – including if required the cost of survey – and registration of the transfer.

   That I hear further from the parties as to any ancillary detailed orders that should be made and as to the issue as to costs.

5. On the hearing of the appeal from the Magistrate’s decision to a single Judge of this Court, the Judge raised a concern that the change of boundary indicated by the survey could have an impact on the boundaries of neighbouring properties.  The Judge suggested that a referral be made to the Surveyor-General.  It transpired that the Surveyor-General was of the view that the survey obtained by Dr Bunton was likely to be incorrect and that the dividing fence was likely to reflect the true boundary position.  That view was accepted by both parties to the appeal.  The position in short was that the dividing fence was on the true position of the boundary. 

6. The Judge ordered that Ms Ciccarello’s appeal be allowed, that the orders of the Magistrates Court be set aside and that there be substituted for those orders, orders that Dr Bunton’s claim be dismissed and that Ms Ciccarello’s counterclaim be dismissed.  Those orders were made by consent.  The Judge further ordered that there be no order as to costs either in the Magistrate’s Court or in respect of the appeal.  It is from this costs order that permission to appeal to the Full Court has been sought. 

7. Ms Ciccarello accepted that this is an appeal against a discretionary order as to costs and that a Judge when determining orders as to costs has a broad discretion. 

8. The Judge, in his ex tempore remarks, observed:

   … I don’t propose to relate the details of the proceedings in the Magistrates Court or what has happened on the appeal.  They are well-known to the parties and there is not much point in going through all that detail.  The fact of the matter is that in the Magistrates Court both parties relied on a survey which is now agreed to have been incorrect.  As it turns out by the consent orders which I now propose to make, neither party had an entitlement either to the claim that the plaintiff asserted, or to the counterclaim that the defendant asserted.

   The counterclaim, although technically there’s been a victory by the defendant I suppose, in that the status quo remains, the counterclaim of the defendant was based on the adoption by the defendant of the plaintiff’s survey and she sought to use that for the purposes of the counterclaim, a survey which was not based on any certified survey such as would be necessary for a successful action under the Encroachments Act, which if it had been done, might have changed the whole course of these proceedings.

   In all the circumstances it seems to me that as neither party succeeded on their claim or counterclaim, it’s appropriate that I make no order for costs in either proceeding in the Magistrates Court or on the appeal and I will do so.

9. Ms Ciccarello contended that it was entirely appropriate for her to rely on the survey obtained by Dr Bunton and that the Magistrates Court proceedings were predicated on her acceptance of Dr Bunton’s assertion that that survey was accurate.  It is said that in that circumstance, Ms Ciccarello acted in an appropriate way and that in substance, she was entirely successful in the Magistrates Court.  In particular, Dr Bunton’s claim that the fence be reinstated back to the true boundary was dismissed, his claim for damages was dismissed and it was ordered that there be a conveyance of land by Dr Bunton to Ms Ciccarello.  On the appeal, having regard to the Surveyor-General’s report, it necessarily followed that these orders should be set aside.  Plainly it was otiose to order that Ms Ciccarello convey her own land to herself.

10. It was accepted before this Court that the survey obtained by Dr Bunton was an appropriate survey for orders to be made under the Encroachments Act.  It was a survey that could be the foundation for a successful action under that Act.  Although it stopped short of being a full survey, it was still adequate, particularly where it was a survey propounded by Dr Bunton and accepted by Ms Ciccarello. 

11. The Judge when making the order for costs considered that “neither party succeeded on their claim or counterclaim”.  It was submitted that this was an incorrect summation.  Dr Bunton’s claims in the Magistrates Court had been dismissed.  He failed in his claim for damages.  He failed in his attempt to have the fence moved.  Ms Ciccarello succeeded on her counterclaim.  On appeal the counterclaim was dismissed.  The fence was found to be on the true boundary and, as noted above, in this circumstance the order obtained on the counterclaim was unnecessary and could not be implemented. 

12. The fact that it transpired on the hearing of the appeal that the Surveyor-General held a contrary opinion to that of the expert retained by Dr Bunton whose opinion the parties had accepted at trial was not, in our view, a sufficient reason to deprive Ms Ciccarello of the costs order made in the Magistrates Court.  She elected to defend the claim on the basis of the opinion of Dr Bunton’s chosen expert. In our view, Ms Ciccarello’s decision to defend the proceedings without challenging the expert’s opinion was reasonable.  In particular, having regard to the urgency within which the case came to trial, and the qualifications of the expert, her decision to conduct the proceedings without challenging the opinion of Dr Bunton’s chosen expert was appropriate.  We observe that parties are required to make forensic decisions from time to time as to how to present their case.  If such decisions are reasonable, then a party should not be penalised, if at a later time, information comes to light which changes the position.

13. Ms Ciccarello succeeded.  In our respectful view, the Judge in this Court failed to give sufficient weight to the circumstances which existed at the time of the Magistrates Court proceedings. 

14. It was however, in our opinion, entirely appropriate for the Judge to make no order for the costs of the appeal.  Although Ms Ciccarello was successful in resisting the appeal by Dr Bunton, it was the initiative of the Judge in suggesting the parties refer the matter to the Surveyor-General that was the prime catalyst in resolving the appeal.  In this circumstance, the Judge’s order was appropriate.

15. We would grant permission to appeal and allow the appeal in part.  We would set aside the order of the Judge insofar as he ordered that there be no order as to costs in the Magistrates Court.  In lieu we would make an order that Dr Bunton pay Ms Ciccarello her costs in the Magistrates Court proceedings on the appropriate scale.  Ms Ciccarello sought a special order for costs with respect to the preparation of a number of affidavits.  We do not consider that any adequate reason has been identified for the making of a special order and we would decline to do so. 

16. Although Ms Ciccarello has had some success on this application and her appeal, Dr Bunton has also been successful in resisting the appeal insofar as a special order for costs was sought and insofar as the costs of the appeal to the Judge were sought.  In this circumstance, we would make no order for costs of the present application or the appeal to this Court.

17. ANDERSON J.     I would not grant permission to appeal in this matter. As Gray and Sulan JJ make clear in their reasons, the only issue is the costs of the hearing in the Magistrates Court.

18. The hearing in the Magistrates Court, although time consuming and costly, was really a non-event because of the mutual mistake made by the parties. The mistake was as to the accuracy of the survey obtained by the respondent. The respondent relied on the survey and in turn the appellant also relied on the survey as part of her counterclaim.

19. When the matter came before a judge of this Court on 18 February 2011, as the transcript of the hearing makes clear, both parties then agreed to consent orders because it was recognised that neither party could succeed on either their claim or counterclaim.

20. The judge then stated the issues as he saw them. That passage is set out in the reasons of Gray and Sulan JJ. In my view the statement by the judge is not shown to be in error. As the judge says, neither party had an entitlement to their respective claims.

21. I do not agree that Ms Ciccarello succeeded. As the consent orders show, both parties failed. I therefore agree with the statement of the judge.

22. In my view, for the reasons stated by the judge it was not appropriate in the circumstances he described to make any order for costs either for the hearing in the Magistrates Court or for the appeal.

23. I would therefore refuse permission to appeal in this matter. However, permission having been granted by the majority and the appeal having been allowed, I agree that there should be no order as to the costs of the hearing in the Full Court.