Gordon Murdoch and Sandra Murdoch v Dean Amesbury and Rachel Amesbury
| Jurisdiction | UK Non-devolved |
| Judge | Judge Dight |
| Neutral Citation | [2016] UKUT 0003 (TCC) |
| Court | Upper Tribunal (Tax and Chancery Chamber) |
| Subject Matter | Land Registration,4 January 2016 |
| Date | 04 January 2016 |
| Published date | 01 December 2016 |
[2016] UKUT 0003 (TCC)
Case No: UT/2014/0022
UPPER TRIBUNAL
TAX AND CHANCERY CHAMBER
Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL
Date: 31/12/2015
Before :
HIS HONOUR JUDGE DIGHT
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Between :
(1) GORDON MURDOCH
(2) SANDRA MURDOCH
Appellants
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(1) DEAN PETER AMESBURY
(2) RACHEL LOUISE AMESBURY Respondents
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Mr Nathaniel Duckworth (Battens Solicitors Ltd) appeared for the Appellants
Mr Philip Glen (instructed by Insley & Partners) appeared for the Respondents
Hearing dates: 15, 16 & 19/12/14
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Decision Approved by the court
for handing down
HIS HONOUR JUDGE DIGHT
Approved Judgment Murdoch v Amesbury
His Honour Judge Dight:
1. This is an appeal against two decisions of Judge Sarah Hargreaves sitting in the First
Tier Tribunal (Property Chamber) in which the learned Judge, on a reference from
HM Land Registry, (1) dismissed the Appellant’s application for determination of the
exact line of the boundary between the Appellants’ land and the Respondents’ land
pursuant to section 60(3) of the Land Registration Act 2002 (“the LRA 2002”) and (2)
ordered the Appellants to pay 80% of the Respondents’ costs of the proceedings
before the Adjudicator to HM Land Registry (“the Adjudicator”) and before the First-
tier Tribunal (Property Chamber) (“the Tribunal”), which the former became in the
course of the proceedings below. It is agreed that the transformation of the
Adjudicator to the Tribunal, and the learned Judge from a Deputy Adjudicator to a
Judge of the First-Tier Tribunal has no bearing on the matters which I have to decide,
the relevant provisions and rules remaining, so far as material, the same.
2. Notwithstanding her dismissal of the Appellant’s application for determination of the
exact line of the boundary between the Appellants’ land and the Respondents’ land
the learned Judge went on to make findings as to the position of the legal boundary
between the two properties even though there had been no formal application by
either party to HM Land Registry relating to the position of the legal or general
boundary and no reference of such an issue to the Adjudicator by the Registrar. The
Appellants do not suggest that the learned Judge was wrong to dismiss the application
to determine the exact line of the boundary, for the technical reasons which she gave
in her written judgment, but they submit that she was wrong to go on to find the
position of the legal boundary, because she lacked jurisdiction to do so, and wrong in
her conclusions as to the position of the legal boundary and they seek to challenge her
decision in that regard. They also challenge her decision on costs.
3. The Respondents agree that the learned Judge was correct to dismiss the application
for a determined boundary but they say (1) that the learned Judge was correct in her
findings as to the position of the legal boundary and had jurisdiction to make those
findings, (2) that since the Appellants do not seek to set aside the dismissal of the
application for the determined boundary, and the direction made by the learned Judge
to cancel their application, the Appellants have no locus to challenge the findings as
to the position of the legal boundary, but they nevertheless assert (3) that in any
subsequent proceedings (whether on a relevant application to HM Land Registry or a
reference to the Tribunal or elsewhere) an issue estoppel would arise which would
prevent the Appellants from challenging the learned judge’s findings as to the legal
boundary notwithstanding the fact that, in their submission, they are not open to
challenge by way of appeal to the Upper Tribunal. I am told that the Respondents
have applied to HM Land Registry to register the boundary as found by the learned
Judge.
4. The difference between the parties as to the true position of the boundary has always
been a matter of inches. In paragraph 36 of her written decision the learned Judge, in
commenting on the Appellants’ expert’s evidence, said:
HIS HONOUR JUDGE DIGHT
Approved Judgment Murdoch v Amesbury
“He concluded his evidence in chief by stating that the
difference between the experts was probably the equivalent of
the thickness of the lines on the [original] conveyances – which
absolutely demonstrates the difficulties in this case, bearing in
mind the scale of 1:1250.”
The issues before me
5. The appeal therefore raises four main issues:
i) whether it is open to the Appellants to challenge the learned Judge’s findings
as to the position of the general boundary notwithstanding the fact that success
on the appeal would not result in the direction by the Tribunal to HM Land
Registry to cancel the determined boundary application being set aside;
ii) whether the learned Judge had jurisdiction to decide where the legal boundary
lay;
iii) whether the learned Judge was wrong in her conclusions as to the position of
the general boundary; and
iv) costs
There had been an issue as to whether the Appellants, who had raised the question of
the true position of the legal boundary before the learned Judge, were estopped from
challenging her decision to do so on this appeal, but the Respondents did not pursue
that point before me. They were right to do so bearing in mind the comments of Lord
Reid in the Essex County Council case which I refer to below. The parties have
effectively reversed their positions in relation to the jurisdiction of the learned Judge
to decide the position of the legal boundary because before her it was the Appellants
who encouraged her to find the boundary and the Respondents who sought to
persuade her simply to dismiss the Appellants’ application.
The factual background and context
6. The Appellants and Respondents are neighbours in Coombe Valley Road, Preston,
Weymouth, Dorset. The Appellants have been the joint registered proprietors of 73
Coombe Valley Road (“No.73”), under Title Number DT389402 since 23 November
2011 following an application by them for voluntary first registration made on 17
October 2011. The Respondents have been the joint registered proprietors of 75
Coombe Valley Road (“No.75”), under Title Number DT148185 since 11 August
2010, that Title having been first registered on an application by a predecessor in title
on 16 June 1987.
7. To enable me to understand the layout of the two parcels of land and the lengthy and
sometimes complex chronology I have been provided with the original trial bundles,
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