Ciccarello v Bunton

The parties to this matter were the plaintiff and the defendant, neighbours involved in a dispute concerning the location of a fence dividing their properties. The plaintiff initiated proceedings in the Magistrates Court, while the defendant counterclaimed under the *Encroachments Act 1944* (SA). The case was heard by the Full Court of the Supreme Court of South Australia, comprising Gray, Sulan, and Anderson JJ, with Anderson J dissenting.

The central legal issues before the Full Court were whether the single Judge of the Supreme Court had erred in exercising their discretion regarding the costs of both the Magistrates Court proceedings and the appeal, and whether permission to appeal against the costs order should be granted. Specifically, the court had to consider if the Judge had adequately accounted for the factual circumstances as they existed at the time of the Magistrates Court hearing when making the costs order, and whether the Judge's decision to make no order as to costs in either court was appropriate given the subsequent findings about the accuracy of the survey relied upon.

The majority of the Full Court (Gray and Sulan JJ) found that the single Judge had misapprehended a fact relevant to the exercise of discretion concerning the costs of the Magistrates Court proceedings. They held that the Judge had failed to give sufficient weight to the circumstances that were present when the Magistrates Court made its decision. Consequently, permission to appeal was granted, and the appeal was allowed in part. The court ordered that the plaintiff should pay the defendant's costs in the Magistrates Court.