Cases - Gyle-Thompson v Wall Street (Properties) Ltd

Record details

Name
Gyle-Thompson v Wall Street (Properties) Ltd
Date
[1974]; [1974]
Citation
1 WLR 123; 1 AII 295
Legislation
Keywords
Party wall - notice not served on correct/all parties - notices and award invalid - surveyor had not been appointed in writing - can appeal beyond limit if award is not valid - easements - Party Wall etc Act 1996
Summary

The defendant (the building owner) served party wall notices on Mr Johnson, who was the plaintiffs' surveyor. Mr Johnson did not send these notices to the plaintiffs as he thought that the defendant had done so. The plaintiffs maintained that Mr Johnson had no authority to accept service.

The judge decided that there was insufficient evidence that Mr Johnson had been held out as the plaintiffs' agent for the purposes of service of the notices. He therefore decided that the notices, and the resulting award, were invalid (for this amongst other reasons).

In addition, there had been 2 party structure notices and 2 awards. The adjoining owners' surveyor had not been appointed in writing at all for the purposes of the first notice and award. Written appointments post-dating the award were then signed in order to regularise the fee position. This was prior to service of the second notice. There was no further written appointment of the adjoining owners' surveyor.

The judge decided that the adjoining owners' surveyor was not properly appointed in writing for the purposes of the second notice and award. The adjoining owners' surveyor had, nonetheless, been involved in the selection of the third surveyor and the second award had been made by 2 surveyors, including the third surveyor. It was held that the award was void because the adjoining owner's surveyor was not validly appointed and therefore had no statutory authority to agree to the selection of the third surveyor.

One aspect of this case is no longer relevant under the Party Wall etc. Act 1996. This concerned the reduction in height of a party wall, which the court held was not permitted under the London Building Acts (Amendment) Act 1939. The surveyors therefore had no jurisdiction to make the award that agreed the proposed works. Under section 2(2)(m) of the Party Wall etc. Act 1996, such a right now exists.

Other interesting aspects of the case that are still relevant are as follows:

  • a party may appeal against an award beyond the statutory 14-day appeal period, where it is ultra vires and therefore not a valid award;
  • it is 'important that the procedural steps laid down by the Act should be scrupulously followed throughout, and shortcuts are not desirable' and furthermore that 'the approach of surveyors to those requirements ought not to be casual';
  • an award that results from notices that have not been validly served will also be invalid; an award that is made by surveyors, one or more of whom were not validly appointed in writing under the Act, will also be invalid. Brightman J advised that it would be a wise precaution for the surveyor of the building owner and the surveyor of the adjoining owner to inspect each other's written appointment before they performed their statutory functions; he extended the advice to the third surveyor; and
  • a building owner may only commence work if the award has been delivered to the adjoining owner. Sending the award to the adjoining owner's surveyor is insufficient. Again, Brightman J advised the surveyors to take steps to ensure that there was no doubt as to the date of delivery of the award, and to note that the date is the same for the building owner as for the adjoining owner. (Note: whereas the 1939 Act did not contain any requirements regarding delivery of the award, section 10(14) of the 1996 Act requires the surveyors to serve the award forthwith on the parties.)