Maddows v Fernandez

Why this case matters

Maddows v Fernandez is important because it addresses Is the appeal a review or rehearing, and how should the court approach the award?. The recorded decision is that the decision discusses the appellate approach in the statutory context. In practice, the case is relevant because do not assume every s10(17) appeal operates like a conventional narrow judicial review.

What happened

Appeal concerned a third-surveyor award and the correct approach of the county court on appeal.

The practical significance of the background is that the court's conclusion must be read against the particular procedural and factual setting recorded above. A party wall authority should not be treated as deciding a wider proposition merely because similar terminology appears in another dispute.

Question before the court

Is the appeal a review or rehearing, and how should the court approach the award?

This is the issue around which the case should be read. In applying the decision, separate that legal question from other factual disagreements between the owners and from matters the court was not required to determine.

Decision

The decision discusses the appellate approach in the statutory context.

The decision should therefore be used for the proposition actually resolved by the court, rather than as a general answer to every dispute involving the same section of the Act.

What it means in practice

Do not assume every s10(17) appeal operates like a conventional narrow judicial review.

For surveyors, the useful discipline is to identify the statutory power or duty relied upon, establish that the factual preconditions are present, and then ask whether the proposed step is necessary and supported in this particular case.

What the case does not decide

This summary should not be read as extending the decision beyond the question identified above. It does not, without more, establish that the same result follows where the notices, appointments, works, evidence or procedural history are materially different. Check the full judgment and later authorities before treating the case as determinative of a new set of facts.

Building-owner lesson

Prepare the evidential case early if an award may be appealed.

Adjoining-owner lesson

Act within 14 days and understand the appeal's procedural character.

Surveyor lesson

Make a reasoned award capable of scrutiny on the evidence and law.

Questions to ask before relying on this case

• Is the legal question in the present matter actually the same as the question decided here?
• Are the statutory notices, appointments and jurisdictional steps materially the same?
• Are there factual differences that could justify a different result?
• Has a later or higher authority qualified, distinguished or displaced the proposition?
• Is the proposed reliance correct, necessary and supported in this particular case?

Key passages / points

Read alongside Zissis for appellate procedure.

Related cases

Zissis v Lukomski; Basu v Baron