Mills and another v Savage and another; Mills and another v Sell and another

Party walls – Surveyor – Resignation – Appellants appointing party wall surveyor in connection with construction works – Appellants withdrawing party wall notices and asking surveyor to resign – Preliminary issues arising – Whether surveyor’s resignation being valid – Whether appellants’ first surveyor remaining as incumbent surveyor – Whether respondents entitled to waive any defect in resignation – Whether stopped from arguing surveyor remaining incumbent – Preliminary issue determined The appellants purchased a property at 29, Pembury Avenue, Worcester Park, Surrey intending to carry out extensive works to the property prior to taking up residence. Discussions with the respondents, as neighbours likely to be affected by the works, did not include the party wall aspects of the works. After the works commenced, the respondents obtained a without notice injunction requiring the appellants to stop the works pending the service of Party Wall Act notices. And the making of an appropriate award under the Party Wall etc Act 1996. In compliance with the injunction, a party wall surveyor appointed by the appellants served the relevant notices under the Party Wall Act 1996 and the respondents respectively appointed the same adjoining owners party wall surveyor. When no progress was made towards an award to permit the appellants to carry out their proposed works the appellants decided to avoid any construction works that involved the Party Wall Act. Accordingly, the appellants’ party wall surveyor wrote to both respondents informing them that no notifiable works were to be carried out to the property, withdrawing the notices and confirming that the appellants would pay the respondents’ surveyor’s reasonable fees up to the date of the letter. The appellants’ surveyor then informed the respondents’ surveyor that, for costs reasons, the appellants had asked him to resign as they wished to represent themselves. The respondents’ surveyor took the view that the purported withdrawal of his appointment was refusal to act and not a justifiable reason to deem himself incapable of acting under section 10(5) of the 1996 Act. The court subsequently ordered, among other things, the trial of a preliminary issue whether the appellants’ first surveyor remained as their incumbent surveyor and/or whether the respondents had waived any defect in his resignation and/or were estopped from so arguing that he remained the appellants’ incumbent surveyor. Held: The preliminary issue was determined. (1) Section 10(5) of the 1996 Act envisaged that the power to appoint a replacement surveyor, among other things, arose where the original surveyor deemed himself incapable of acting. In the context of section 10(5), the appropriate meaning of “deems” was “is of the opinion” or “considers” or at most “decides”. There was no implication of steps to be taken before the opinion was formed or the decision taken. There were no words in the statute to indicate that the party-appointed surveyor might only deem himself incapable of acting on proper grounds. It was entirely a matter for the surveyor to decide whether he wished to resign by deeming himself incapable of acting and he might do so on whatever grounds seemed appropriate to him.    In the present case, the appellants had decided not to pursue any works which engaged the 1996 Act. They were trying their level best to extricate themselves from the financial implications of commencing such works and doing so without first obtaining a party wall award. It was not obvious in those circumstances that they should be required to shoulder the continued financial burden of their own appointed surveyor. (2) Even if that was wrong, it was not for other surveyors to police the deemed incapacity of the appellants’ surveyor. That would be a matter either for his professional body, if a complaint were made by his appointing party, or for the court of the matter was brought before it for a determination in or in connection with the party wall process. The other surveyors had no business to be requiring explanations or demanding a resumption of acting on the part of the resigning surveyor. It was difficult to imagine the court imposing a mandatory injunction on a surveyor requiring him to return to and be involved in the party wall process. Whatever the other surveyors thought about their colleague’s actions, they had to accept it and proceed accordingly. It was wholly inappropriate for the other surveyors to insist that the surveyor who had resigned and was no longer acting should remain the surveyor for his originally appointing party and be treated as having refused or neglected to act effectively for the purposes of section 10(6) and (7) of the 1996 Act. Neither was it open to them to refuse to accept any replacement appointee made by the appointing party under section 10(5). Accordingly, the surveyor did not remain the appellants’ appointed surveyor. He ceased to be the appointed surveyor on his death. (3) If, on a proper construction on section 10(5) of the 1996 Act, the surveyor had no business to be resigning his position as the appellants’ party wall surveyor because he did not have proper grounds on which to do so, it would not be open to the respondents to waive any defect. There was no provision in the 1996 Act which would give the respondents the authority to waive that which was statutorily improper. (4) As to the possibility of estoppel, there had to be a representation of fact intend to be acted upon, acting on that representation and an alteration of position (detriment) by so acting. In the present case, none of those points had been established.       Stuart J Frame (instructed by Direct Access) appeared for the appellants; Richard Power (instructed by Littlestone Cowan) appeared for respondents. Eileen O’Grady, barrister Click here to read transcript: Mills and another v Savage and another; Mills and another v Sell and another