Philip Antino discusses one of the more frustrating cases he has been involved in as the Adjoining Owners Surveyor, involving a trespass, damage, inconvenience and nuisance.
On the advice of Mr Philip Antino, the Adjoining Owners obtained an injunction. The matter is on-going in respect of a boundary dispute, so I cannot give the full details or the identities of the parties or surveyors at present but it involves s.10(4) & (5) and whether the building owner had validly appointed a surveyor.
Mr Philip Antino served a s.10(4) request upon the Building Owners, after 10 days Mr Philip Antino appointed a surveyor under s.10(4)(a)&(b). Several weeks later the Building Owners then attempted to appoint a surveyor, "Mr X". Mr Philip Antino rejected theappointment of Mr X and joined with the surveyor appointed under s.10(4)(a)&b) to produce an Award.
The Building Owners challenged the injunction and on the advice of Mr X and their legal team appealed the Award. In September in the Central London County Court there was a preliminary hearing on certain matters relating to the Award. The Building Owners claimed that the s.10(4)(a)&(b) appointment was invalid, claiming they had not received the request and had in any event (albeit several weeks after the passing of the 10 day period) purported to appoint MR X, although Mr X never disclosed his appointment letter for 9 months.
The Building Owners argued that Mr Antino was not validly appointedand therefore had no jurisdiction to adopt s.10 procedures and therefore the s.10(4)(a)&(b) award was invalid. The Building Owners Sought to have the Award thrown out.
Followinga two day hearing on these preliminary points, HHJ Bailey held
(a) The Building Owners refusal to appoint a surveyor triggered the s.10(4)(a)&(b) procedures
(b) Mr Antino was validly appointed,
(c) The s.10(4)(a)&(b) appointment was valid
(c) The appointment of Mr X was invalid.
The Building Owners Appeal comprehensively failed on all points, they are now faced with a significant costs bill of circa £100,000 plus the £17,000 damages and compensation awarded by Mr Antino and the s.10(4)(a)&(b) surveyor.
The principles behind s.10(4)(a)&(b) and s.10(5) will be discussed along with this case in explicit detail at the forthcoming event (18th November 2015), please see our events page for booking details.