Nessfield Ltd v Oi Tan Chan Central London County Court Appeal E20CL182
Mrs Oi Tan Chan over the moon with the service provided by Philip Antino.
Philip Antino was appointed by the building owners following the deemed incapacity of the building owners first surveyor.
The adjoining owners appointed a Mr Kritzler from the beginning, who had raised numerous pejorative issues over the proposed works which caused considerable delays and frustrated the building owner’s surveyor so much that he deemed himself incapable of acting. Following Mr Antino’s appointment as the replacement surveyor he quickly brought Mr Kritzler to hand, and progressed matters, and dismissing the previous points raised by Mr Kritzler as irrelevant and/or unsupportable. Given the nature of the works being undertaken to the building owner’s property for the creation of a loft conversion in a maisonette flat in a property in Holloway Road North London.
Mr Kritzler persistently challenged the validity of the building owners’ structural engineers’ calculations. Mr Kritzler has no structural engineering qualifications, was unable to make any reasonable or sensible arguments to challenge the engineer, and when invited by Mr Antino to instruct their own checking engineer declined to do so.
There was an impasse, Mr Kritzler demanding that a trial pit was excavated to identify the depth of the foundations to the party wall to establish their suitability. Disingenuously, avoiding the fact that his own appointing owners had recently carried out a loft conversion, and knew the depth of the foundations, he refused to provide details of the earlier party wall award and structural engineers details of his appointing owner when they carried out their loft conversion works.
Furthermore, and somewhat surprising, given that the building owners property comprises a mixture with commercial use at ground floor and basement, let on a long-term lease to a tenant, and the building owner residing in the first and second floor maisonette flat. The site being land locked as it had been fully built upon. It was a physical impossibility to undertake a trial pit without causing considerable damage to the basement and disruption to the tenants.
Mr Kritzler made a referral to the third surveyor, claiming that there must be a trial pit excavated to examine the depth of the foundations whilst refusing repeated requests to disclose the party wall award that was prepared by his appointing owners previously and their structural engineers’ calculations.
The third surveyor ruled against Mr Kritzler, his appointing owners then appealed the third surveyors award under s.10(17).
There had been a number of preliminary hearings regarding the adjoining owner’s failure to disclose evidence and/or to participate properly with the litigation and the adjoining owners despite being represented by counsel and legal representatives failed to comply with Orders issued by HHJ Bailey and consequently were exposed to Costs Order up to and prior to the abandonment of the appeal.
In particular the adjoining owners were ordered to give full disclosure of the previous award, structural engineers calculations, investigations, trial pit details and/or foundation information that they had obtained during their works.
Costs will now be assessed against the adjoining owners for this misconceived appeal of the third surveyors award, the building owners are clearly extremely relieved, but more importantly, very pleased with the outcome and the advice provided by Mr Antino and indeed their legal team comprising of Mr Ashley Bean and counsel Mr David Mayall of Lamb Chambers.
The case was listed to be heard on the 20th May 2019 and on the 13th May 2019 the adjoining owners discontinued their appeal.
The adjoining owners are liable for legal costs be and compensation for the delay in building works which is estimated to be circa £67,000. Mr Antino had to serve an ex-parte award following Mr Krenzler’s failure to move matters forward.