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JSA Properties (UK) Ltd v Gary Harvey Waldman – G20CL109

The first successful APA clients case of 2021, many more to come.

The works related to an extension to create additional residential units above ground-floor commercial properties between both the BO and AO.

JSA (BO) took it upon themselves to prepare their own s.2 notice.  After service they promptly started the works, Mr. Waldman the AO took exception quite rightly, and then surveyors were appointed.

Mr. Matthew Price (BOS) of Peter Barry Surveyors www.peterbarry.co.ukand Mr. Charles Stimpson of Charles Stimpson Associates was appointed as the adjoining owner’s surveyor (AOS) www.stimpsonsurvey.co.uk.

They agreed on the selection of a third surveyor.  Shortly thereafter the first lockdown came, emails were sent to the BO offices but to one of the secretaries who were on furlough.  Some emails were missed and information was not sent to the surveyors as promptly as they demanded.

However, it is not quite clear how urgent matters should be when there is a nationwide lockdown, but nonetheless, these two surveyors both of which are members of the Faculty of Party Wall Surveyors www.fpws.co.ukand both are RICS members www.rics.org.

Mr. Price had contact details for the proprietor of JSA Properties but chose not to write to him and then all of a sudden, the two surveyors unilaterally for reasons which have not been fully disclosed, decided to serve an Award.

The Award extended to three pages and awarded Mr. Price £1,245 + VAT (£1,494) and Mr. Stimpson was awarded £1,100 + VAT (£1,320).  Both gentlemen immediately declared themselves incapable of acting further.  The Award was dated 21st August 2020.  No schedule of condition had been done, and on consideration of the papers that were brought before myself very little work was actually done.

The BO obviously immediately filed an appeal, the matter was not unsurprisingly referred to the County Court at Central London and came before HHJ Parfitt under reference G20CL109.

Of notable interest in this matter, Mr. Waldman appeared to be playing very little part in defending or arguing the appeal, what did occur however rather bizarrely was Mr. Price and Mr. Stimpson then engaging with the appeal procedures without being named as parties to the matter.

They also requested the Court award them additional costs of £702 including VAT for Mr Stimpson and £900 + VAT (£1,080) for Mr. Price.  All after they had deemed themselves incapable of acting!!!

Neither of these gentlemen were parties to the appeal they had no right to seek and/or request that the BO pay them any additional costs.  JSA Properties were confused they could not understand how the two gentlemen could award their fees and then simply walk away without an Award dealing with the works and/or very little to show.

A case management conference was listed for the 25th of November 2020.  The BO contacted Philip Antino on receipt of papers looked at the works and recognized that there was in fact no notifiable works.

Mr Price had been demanding sections through the foundations for notice under s.6(1) but there were no notifiable excavations being undertaken, the works which had been started by the BO was in fact raising an existing wall built on the line of junction, and therefore his notice initially served under s.3 and s.2 was in fact erroneous.

Mr Antino advised the BO to serve a Part 36 Offer on both surveyors, they were entitled to something due to his error in serving a notice, but it was a nominal amount and therefore the Part 36 Offers were for £300 + VAT. 

How can two purported experts not know the works were not notifiable.

These two gentlemen should have recognized immediately that there were no notifiable works.  There were issues of starting the works and putting scaffold on the adjoining owner’s property but that is a common law matter, not within the party wall surveyors jurisdiction.

So the question remains, is how did these two gentlemen rack up such high fees without actually having statutory authority to do so.

They could not progress to their natural conclusion because there were no notifiable works, and one can only assume that both gentlemen had subsequently realized that they had no jurisdiction under the party wall legislation and hence their unilateral, and rather surprisingly, decided to deem themselves incapable of acting.

But how can someone deem themselves incapable of acting under s.10(5) when their appointment is invalid in the first instance.

All of this was laid out together with a number of other significant issues to the BO by Philip Antino.  Suffice to say that those points were then used by the BO in preparing a skeleton argument in preparation of the CMC on the 25th November 2020.

During that time both Mr. Price and Mr. Stimpson had been emailing the Court directly to HHJ Parfitt, that in itself is surprising because neither of the surveyors were parties to the litigation.  It is a matter between the BO and AO, so that raised some very important questions in the way in which the case was being handled and hopefully with the intention of these being brought to the Judge’s attention at the CMC.

Upon receipt of the skeleton argument HHJ Parfitt then notified the parties that he would not be able to hold the CMC due to an overrun on another matter.  The case was put back to January 2021.

However, the skeleton had been circulated together with all of the various documentation within the bundle to all parties and including Mr. Price and Mr. Stimpson.  Shortly thereafter and/or within a matter of weeks, Mr. Price made a counteroffer regarding the Part 36 Offer requesting payment of £750 + VAT in settlement of his alleged £2,572 fees.

The BO took a commercial decision with VAT being recoverable under his business and therefore agreed to pay Mr Price £750 + VAT and Mr Stimpson £500 + VAT in full and final settlement of the total costs that he had been claiming of £4,734.40.

 Conclusions

So, we have two surveyors who failed to spot that no notifiable works had occurred, they then sought to award themselves substantial fees immediately (and this cannot be a coincidence) thereafter they both deemed themselves incapable of acting from something which they had no jurisdiction to do. 

They attempted to engage in the appeal of which they were not named parties and sought to claim additional fees against the BO.  All very surprising f not shocking behavior and I leave it for the reasonably informed independent observer to reach their own conclusions as to the proprietary behavior of these RICS and FPWS party wall surveyors

The BO’s position is quite clear that he was confident that the appeal would have been upheld for various reasons which are quite clearly set out above, at a CMC HHJ Parfitt ordered that the Appeal is stayed, and there shall be no enforcement of the AWARD.

Judges Comments and Opinions regarding Dr. Antino

  • The party wall world is relatively small, the stage of this world contains a number of well-known players, Mr Antino is one of these well-known players and so are his owners instructing solicitor Mr Ashley Bean of Thirsk Winton

    HHJ Bailey - [2016]
  • The Claimants have a very experienced legal team comprising Mr David Mayall of lambchambers & Mr Ashley Bean of thirsK winton and their surveyro Dr. Philip Antino. The evidence in particular of the Defendant’s plans for both the Accessway and the plans and how it impacted upon the Claimants business was important information that The Defendants ahd not provided when requested.

    HHJ Freedland QC - [2021]
  • "Mr Antino is a palpable witness, Mr Antino's explanation of the unique attributes of the "Thompson Plan" greatly assisted the Court to understand the location and extent of the claimants’ boundaries” (Best & Best v Perkins & Dennis in the County Court at Luton).

    HHJ Hildyard - [2015]
  • The appeal was a preliminary hearing of two points in respect of an Award served by Mr Antino and a surveyor appointed by Mr Antino under s.10(4) on behalf of the Building Owners the Appellants. HHJ Luba QC sitting in the Central London County Court held "In my judgment the Award is valid, the use of s.10(4) was the appropriate procedure given the Building Owners refusal to appoint a surveyor. A dispute had arisen that satisfied s.10 procedures, The Award is an impressive piece of work". Schmid v Hulls and Athananasou).

    HHJ Luba QC - [2016]
  • “Mr Antino is an acknowledged expert in the field of party wall issues.”

    HHJ Murfitt QC 2013 - [2015]
  • “I have known Philip for many years as a surveyor, he is a very good surveyor, as this book shows he is a very good author and this book can only advance his reputation”

    HHJ Philip Bartle QC - [2012]
  • “In the appeal of an ex-parte Award served by Mr Antino on behalf of the respondents, in my judgment the respondent is correct. Mr Antino’s contention that it is not a matter for negotiation directly between one surveyor and the other surveyor’s client. Since I have determined that the ex-parte Award was valid the court is still able to determine the Award and under the statutory powers to modify the Award if appropriate. I am grateful to Mr Antino suggesting that I now determine the Award issue “I accept that Mr Antino’s hourly rate is not in my judgment unreasonable. It follows that the fee set out in the ex-parte Award had been properly justified and I therefore award Mr Antino’s fees”. (Bansal v Myers Romford County Court).

    HHJ Platt - [2007]

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