Goodmans Autos Limited v Maverstone Properties Limited & Anor

On an appeal from factual findings, the appellate court must identify an error of law or fact. It should not interfere with primary factual conclusions unless the trial judge was plainly wrong. A claim for trespass must be determined by reference to the true boundary and the pleaded case. Where the evidence supports a conclusion that concrete beyond the boundary was a separate fence base or minor overspill, rather than part of the building’s foundations, the court may find no trespass. An appellate court will not determine a materially different, unpleaded claim advanced for the first time on appeal.

Goodmans Autos Limited appealed against an order of HHJ Raeside KC dismissing its claim concerning alleged trespass during the construction of Majestic House. It alleged that excavation had removed part of its land and that piled foundations, a capping beam and concrete had extended onto its site. The trial judge accepted the respondents’ expert evidence as to the true boundary and found that the building foundations, pile cap and wall were within the respondents’ land. He also found that any concrete beyond the boundary was minor concrete associated with the fence, rather than foundation concrete.

The appeal concerned whether the judge had erred in his factual findings, his treatment of the concrete, or his conclusion that the claim pursued at trial was not properly pleaded.

1. Appeal standard. Under CPR r 52.21, the appellant had to establish that the decision was wrong. The authorities confirmed that an appellate court should not interfere with primary factual findings unless the trial judge was plainly wrong. That includes a conclusion unsupported by evidence, based on a misunderstanding of the evidence, or one which no reasonable judge could have reached.
2. Excavation and boundary. The trial judge was entitled to reject the allegation that six inches of the appellant’s land had been excavated. The allegation depended on an incorrect boundary identified by the appellant’s expert. The judge accepted the respondents’ expert evidence and the evidence from the trial pits establishing the true boundary.
3. Concrete and alleged trespass. The judge was entitled to conclude that the foundations, pile cap and wall were within the respondents’ site. The possible extension of 100–150 mm of concrete beyond the boundary did not constitute the pleaded trespass by building foundations. The evidence supported the conclusion that the concrete was either accidental overspill or a fence base, and that the distinction between a single pour and separate concrete made no technical difference. The appellant’s contractors had, in any event, adopted the concrete as a fence base on the appellant’s behalf.
4. Pleading point. The claim eventually advanced on appeal, based on overspilled concrete, was materially different from the pleaded allegation that the piled foundations extended beneath the appellant’s premises. The appellant could and should have sought permission to amend its pleading.
5. The appeal was dismissed.

• High Court (King’s Bench Division): Appeal from the order of HHJ Raeside KC dated 9 November 2022, amended on 24 November 2022. The appeal was dismissed.