Van Maanen v West Greenwich Developments LLP

  1.             The court has before it an application by the Claimant for an order striking out the Defence, alternatively for summary judgment on the Claim.  That application was dated the 2nd July 2009.  The Defendant by an application dated the 18th August 2009 applies for summary judgment on the Defence. 2.             The Claimant is a surveyor and claims fees in connection with party wall awards which related to properties owned by five leaseholders at 10-12 West Grove, Greenwich, London SE10.  The adjoining property at 9 West Grove was being developed by the Defendant.  Rather strangely, the Claimant originally issued five separate claims in the Ilford County Court but these were consolidated and transferred to this court. 3.             As the building works being carried out by the Defendant at 9 West Grove involved works to which the Party Wall Act applied the Defendant appointed Mr George Evangeli to act as its surveyor pursuant to the Act.  He served the appropriate notices on the adjoining owners at 10-12 West Grove and also on Grove Hall Ltd, the freehold proprietor of 10 West Grove.  The adjoining owners did not consent to the works being carried out and, pursuant to the Act, a dispute was deemed to have arisen.  The adjoining owners then appointed the Claimant as their surveyor.  Section 10 of the Act sets out the procedure for resolution of disputes.  As can be seen from the correspondence and copy documents exhibited to the first witness statements of Mr Evangeli, it is clear that he was acting perfectly properly under the Act in serving notices and after the Claimant’s letter of the 5th February he suggested, in accordance with section 10 of the Act that a third surveyor should be selected from three names which he put forward.  One was agreed by the Claimant in a letter dated the 7th February, which is not in the trial bundle but in which the Claimant suggested that Mr Evangeli’s appointment was not in accordance with normal practice.  The two surveyors had exchanged copies of their appointments.  They agreed a site meeting for the 3rd March 2008 to prepare schedules of condition and to discuss matters generally. 4.             According to Mr Evangeli’s statement, at the meeting the Claimant asked him questions about his experience of party wall matters and again suggested that the letter of instruction was not in accordance with normal practice.  The Defendant’s site agent explained to both surveyors that the original foundation design was being revised.  On the 5th March the Claimant wrote to Mr Evangeli (page 37 of the bundle) again suggesting that there was some defect in the letter of appointment.  He followed this up on the 26th March with a further letter and by a subsequent letter dated the 14th April 2008 purported to give notice under section 10 (6) and (7) of the Act (p 41 of the bundle).  There is a letter in reply explaining that Mr Evangeli had been away on holiday and subsequently unwell, and that his appointment certainly was valid and that the building owner was not carrying out any works in breach of the Act.  He also confirmed what was stated at the site meeting, which was that new drawings were being prepared.  In fact, the following day he sent draft awards and invited the Claimant’s comments.  The Claimant replied on the 24th April to the letter of the 23rd of April and again raised the question of Mr Evangeli’s appointment.  Mr Evangeli wrote a strongly worded letter on the 25th April in which he dismissed the so-called notice of the 14th of April 2008. 5.             Instead of replying to Mr Evangeli’s letter of the 24th April with the draft awards, the Claimant wrote on the 28th April a letter enclosing what he described as an ex parte award together with an invoice for £9,947.90 addressed to the defendant company. 6.             A copy of the appointment by the Defendant of Mr Evangeli as their party wall surveyor is at page 3 of the bundle.  It is crystal clear from the last paragraph, that he was clearly appointed in accordance with section 10 of the Party Wall Act 1996, notwithstanding the use of the word “agent” earlier in the document and the Claimant’s comments on this are absurd and it is not surprising that Mr Evangeli wrote in the manner that he did on the 25th April.  After all Mr Evangeli had been pursuing matters in accordance with the provisions of the Act. 7.             The submission on the part of the Defendant is, firstly, that the Claimant had no power to make the ex parte award, and secondly that he has no right or standing in law to seek any fees directly from the Defendant. 8.             In order to make an ex parte award the other surveyor has to have refused to act effectively, the words used in subsection 6 of section 10 of the Act.  At paragraphs 6 and 7 of the Particulars of Claim it is alleged that the words in the letter of the 25th April “Beware and take this as formal notice your letter dated 14 April 2008 is a waste of time” are evidence that Mr Evangeli was refusing to act effectively.  However, the previous day he had sent draft awards and drawings to the Claimant.  Far from refusing to act, Mr Evangeli was proceeding under the provisions of the Act as well he could, bearing in mind the delay over the new drawings.  The Claimant suggests that he had to act immediately, because works were proceeding in contravention of the Act.  Mr Evangeli had already stated that this was not the case and common sense dictates that a site visit could have been arranged so that the two surveyors could inspect.  In any event, there is no evidence before the court that such works were going ahead, other than works which were not the subject matter of the Act. 9.             On the evidence before it the court must find that the Defendant’s surveyor, Mr Evangeli had not refused act effectively and the Claimant was not entitled to invoke section 10 (6).  In support of this contention the Defendant cited a passage from Party Walls Law and Practice by Bickford Smith and Sydenham commenting on refusal to act, where they state “it is considered that only very obstructive conduct could justify such a consequence”.  Mr Evangeli had rightly refused to prolong a wholly futile discussion about his appointment but, far from refusing to act, he was progressing matters. 10.         Counsel further submitted that the Claimant could not rely on section 10 (7), as the other surveyor would have to have neglected to act effectively for a period of 10 days beginning with the day on which either party or the surveyor of the other party serves a request on him.  This requires the request to be in respect of a particular matter.  This never took place, and in any event, the Claimant is not relying on this subsection, in his Particulars of Claim. 11.         It must therefore follow that the Claimant was not entitled to make an ex parte award which was therefore a nullity and of no effect whatsoever. 12.         If that finding is not correct there is a second submission by the Defendant which is in accordance with its proposed amendment, which is that any fees which may be properly due and owing are payable not to the Claimant directly but to the adjoining owners, who would then be liable to pay the Claimant.  Thus starting point is that the Claimant was not appointed by the Defendant and there is clearly no contractual relationship between them. 13.         The Claimant’s argument is that there is a statutory relationship as a result of the Party Wall Act and that, in the normal course of events, the building owners would pay the fees of the adjoining owners’ surveyor.  An award, in practice, nearly always does provide for the payment of surveyors fees and, if it does not, each surveyor has to look for payment from the party who appointed him. 14.         Counsel for the Defendant referred to the case of Onigbanjo v Pearson [2008] BLR 507 where HHJ Birtles considered the point that the Act provides that an award may determine the costs of making the award and who should pay them but not who is to be paid.  At paragraph 37, page 513, he stated “in my judgment a proper reading of the award, and in particular paragraphs 3 to 6 make it quite clear that what the surveyors are doing is itemising the sums which the appellant should pay to the respondents.  I do not read paragraphs 4 to 6 as an instruction to pay (a) the adjoining owners’ surveyor’s fee and (b) the adjoining owners’ barrister’s fee directly to the adjoining owners’ surveyor, and the adjoining owners’ barrister.  They are awards of fees which the adjoining owners have incurred in dealing with and resolving this dispute.  The commonsense view is that the appellant would pay the adjoining owner those monies, which would then be in due course remitted to their surveyor and barrister.” It may well be that as a matter of convenience the building owner pays the adjoining owners’ surveyors directly but that is not the legal position.  That case was subsequently approved by the Court of Appeal. 15.         The claimant therefore, must look to the adjoining owners, who appointed him for payment of his fees and for the reasons stated he is not entitled to claim them from the Defendant. 16.         For the reasons stated, the Claimant is not entitled to summary judgment.  His application for a strike out on the basis that the Defendant has not complied with court orders is wholly disproportionate in the events which have occurred, and in any case, the Claimant himself has been in default of orders of the court. 17.         The correspondence shows that Mr Evangeli was subsequently entitled to invoke the ex parte provisions of section 10, and his awards are the only valid ones.  In those awards the Claimant’s fees were assessed at £587-50 and have been paid.  He seeks to rely on an email from Mr Evangeli stating that fees in the awards are not in dispute.  However, the email refers to the only valid awards, namely, those made by Mr Evangeli and not the invalid ones purported to be made by himself earlier. 18.         The result is that the Defendant is entitled to summary judgment as the Claimant has no real prospect of succeeding on the claim for the reasons stated. 19.         This is a draft of the judgment to be handed down on the date given in the notice sent out herewith.  At that appointment any consequential applications will be heard.