V J Kulkarni – v – Rajinder Atkar (2021) In County Court of Mayors and City of London HHJ Hellman

This is another resounding success for Dr. Antino www.apaproperty.comand his clients who were ably assisted by Mr. David Mayall of Lamb Chambers www.lambchambers.co.ukand Mr. Ashley Bean of Thirsk Winton www.thirskwinton.co.uk. 

This is a boundary dispute, Mr. Kulkarni (the Claimant) owned the first floor of a maisonette flat, Mrs. Atkar (the Defendant) owned the ground floor maisonette.  Prior to the purchase of the properties by the Claimant and Defendant the previous owners had agreed between themselves that a fence be erected to separate the gardens and to provide security preventing young children from wandering across the open garden and falling into a fish pond on one side of the garden.

The Claimant had some 8 years or so prior to this situation beginning moved out and was now renting his property to tenants. 

The Claimant bought their maisonette first and approximately 2 years later the Defendant bought hers.  The garden continued as it was until 2017 when the Defendant decided to demolish her fence, move it over by approximately 600mm or so following a break-in to her property.  The consequence of this relocation was to block the Claimant’s access to their land.

The Claimant was now prevented from gaining access to his part of the garden unless he climbed over a wall.  The tenants were deprived of the garden they had under the lease unless they climbed over a wall.

In 2017 the Claimant instructed Dr. Philip Antino (then Mr. Antino) as his expert and the Defendant instructed Mr. Omar Beg MRICS of McBryer Beg Chartered Surveyors as her expert www.mcbryerbeg.com.

Mr. Beg claimed that he had established that the new fence was now located in the correct boundary position despite the fact that there was no physical access to the Claimant’s Garden unless he climbed over a wall.  Dr. Antino contended that that could not be the correct position and that the fence should be reinstated to its original location thus reinstating the status quo.  There were 4 conflicting lease and land registry plans.

The matter went to trial on the 26 & 27th of October, Dr. Antino gave evidence, and Defendant’s counsel attempted to challenge/undermine his evidence and standing with reference to his previous membership of the RICS, the Court was not impressed with this tactic ad quite rightly so it had nothing to do with the case or facts.

Mr. Beg gave inconsistent evidence but made reference to a plan that he claimed he had prepared that showed that he was right and that his assessment was correct and that the fence should stay where it was.

Quite shockingly, when asked to explain whether he believed the situation that required the Claimant to climb over a wall to gain access to his garden was acceptable, Mr. Beg’s blasé response was “well that is just a fact of life”, which is a shocking statement to make as an expert in Court.  Eyebrows were raised.

Mr. Beg was asked to explain why the plan that he referred had not been disclosed in his report and was therefore not before the Court.  Mr. Beg quite blasé said that he could quite easily circulate it, which he did later on the evening of the 26th October.

Both experts had given their evidence and were discharged from Court, but following disclosure of the plan, which Dr. Antino had been requesting since 2017 on at least 14 occasions, all of which were refused or ignored.  An application was made to the Court to recall Mr Beg to give evidence on his plan.  Mr. Beg refused on the basis that his daughter was ill and he could not come to Court the next day.

The Judge said that was not a problem “we will do a Zoom hearing” which was rejected by Mr. Beg, the Judge then invited Mr. Beg to attend the following day.  Mr. Beg refused to return to Court.

The case was resolved and Judgment handed down by HHJ Hellman where he ruled in favour of the Claimant accepting that Dr. Antino’s evidence was consistent throughout.  The Defendant had disclosed a lease plan which Dr. Antino accepted could vary the position of the original fence, but not to the degree that it was claimed by Mr. Beg.

Mr. Beg’s position was inconsistent and the Court ruled in favour of the Claimant and ruled costs on an indemnity basis. 

Mrs. Atkar is now facing considerable costs because she would not relocate the new fence back to the old position.