Cases - Zissis v Lukomski & Carter
Record details
- Name
- Zissis v Lukomski & Carter
- Date
- [2006]
- Citation
- 2 EGLR 61
- Legislation
- Keywords
- Party walls - party wall appeal - claims in county court
- Summary
-
After the third surveyor declared himself 'incapable of acting' the adjoining owner's surveyor wrote to the building owner's surveyor about his fees, saying 'Can you please advise me of the present position and let me have your best proposal within ten days of your receipt of this letter'. Having received no reply for ten days, he proceeded to issue an ex parte award, awarding himself £15,825 plus VAT in costs. The building owner issued a Part 8 claim, rather than an appeal under Part 52, and the claim was dismissed by the County Court.
The Court of Appeal held that:
(1) Part 52 is indeed the correct procedure for bringing Party Wall Act appeals;
(2) such appeal will be by way of rehearing and 'will ordinarily require the county court to receive evidence in order to reach its own conclusions on whether the award was wrong';
(3) the claim should not have been dismissed, but rather that permission should have been given to amend, or it should have been treated as a Part 52 appeal;
(4) there is 'no reason why an appellant appealing against an award should not be able to claim in proceedings brought under Part 52 that the award is a nullity and that in the alternative the award should be varied'.