Aidan Cosgrave, Partner, Delva Patman Redler
The judgment K Group Holdings v Saidco (2021) involves an appeal against a party wall award made wholly inappropriately by the surveyor to the adjoining owner (AO). The many reasons for which the award was invalid included:
– the appellants were not a party to the dispute;
– the surveyor had no jursidiction to make the award;
– the AO was suspended from acting or making claims as a matter of Panamanian law;
– the AO’s claim for compensation was time barred as the damage arose more than six years ago;
– surveyors have no power to order work to be removed, only a court can do so;
– the surveyor’s award of €446,000 compensation was completely incomprehensible given he purported to award £50,000 just a few months earlier.
Below are a few choice quotes from Judge Parfitt’s judgment.
“it is perhaps worth flagging at the outset that, certainly in my experience, the circumstances in which this award has been made seem to me uniquely inappropriate and misguided.”
“an essential requirement of any award process is not to make an award against somebody who has absolutely no idea you are considering an award, who has no idea about the existence of any dispute or issue which might be the subject of an award, has no idea about the process that is purportedly involving them and have had no opportunity to participate”
“The November 2020 award purports to order damages of €445,000 … It is impossible to look at the award and understand what has caused that loss and, of course, in trying to understand it, it is difficult not to take into account that … in the purported awards of July 2020 and September 2020, the amount that was said to be appropriate compensation for this alleged leak was only £50,000. So, Mr Hemy’s view on appropriate compensation seems to have increased in value, getting on for four or five times the value … in a matter of months which, of course, is at least unlikely.”
“so far as concerns a right to compensation which could be within the surveyor’s jurisdiction, that would be subject to a six-year [time] bar”
“the November 2020 award purported to require the appellants to remove the structures that had been put up by their predecessors …the surveyor did not have the power to do that under the Act. The court and not surveyors have power to grant injunctions of this kind. It may be that Mr Hemy was thinking more in terms of investigations but I do not consider the surveyors have power to investigate, rather than resolve disputes under the Act.”
“the award purports to enforce payment of fees said to be outstanding under the 2009 award … The surveyors cannot enforce their own awards; they need to go to the court to do that … and, of course, that would be subject to a separate time bar.”
“In conclusion, this award is a nullity and will be set aside.”
Thanks to Scott Goldstein of Payne Hicks Beach LLP for sharing the judgment. Scott acted for the successful appellant.