Melhuish v Fishburn

An agreement made to demarcate an uncertain boundary is not a contract for the sale or other disposition of an interest in land merely because it involves a trivial transfer of land between adjoining owners. A contemplated equalisation payment does not alter that character. The triviality of the land transferred may be assessed from the areas involved; expert valuation evidence is unnecessary. On appeal, a trial judge may make findings on a case clarified during cross-examination where the central issue was fairly ventilated and no adjournment was sought. Findings based on credibility and the judge’s costs discretion will rarely be disturbed.

Gordon Melhuish appealed from a judgment of HHJ Reid QC in the Guildford County Court concerning the boundary between adjoining land and a garden. The judge found that the parties had agreed a boundary alteration involving exchanges of small areas of land and a possible equalisation payment, and made consequential monetary and costs orders.

The claimant alleged procedural unfairness, inadequate reasoning, breach of Law of Property (Miscellaneous Provisions) Act 1989, and error in the orders. The central issues were whether the agreement was a boundary agreement or a disposition requiring compliance with section 2, and whether the judge’s monetary and costs orders should stand.

1. Appeal dismissed. The Court of Appeal unanimously upheld the trial judge’s finding that the parties had agreed the boundary as constructed, subject to any necessary equalisation payment.
2. The central issue had always been whether the claimant agreed the boundary. That issue was pleaded, addressed in the skeleton arguments, and put repeatedly to the claimant in cross-examination. The later clarification that the defendant might have to pay for additional land did not make the trial unfair. The claimant could have sought an adjournment but did not do so. The finding was open on the evidence, and the judgment was adequately reasoned.
3. The judge was entitled to assess the witnesses’ credibility, including the defendant’s late clarification of his case and the claimant’s medical difficulties. The contractor’s clear evidence also supported the finding; his employment by the defendant did not establish partiality.
4. Under Law of Property (Miscellaneous Provisions) Act 1989, section 2, the agreement was not a contract for the sale or other disposition of an interest in land. Following Joyce v Rigolli [2004] EWCA Civ 79, and the reasoning derived from Neilson v Poole [1969] 20 P & CR 909, a boundary agreement does not fall within section 2 merely because trivial transfers are involved. Rule 278 of the Land Registry Rules meant that the filed plan showed general boundaries only and left the exact line undetermined when the agreement was made. A possible equalisation payment did not change the agreement’s character. The 1.8% increase in garden area was plainly trivial, and valuation evidence was unnecessary.
5. The monetary order limiting payment to £16,473 was permissible. The costs order was within the trial judge’s wide discretion, and the Court of Appeal would not interfere.

• Court of Appeal (Civil Division): Appeal dismissed; the judgment and orders of HHJ Reid QC were upheld.
• Guildford County Court: HHJ Reid QC declared the boundary by reference to an agreed plan and made consequential monetary and costs orders.