⚖️ Syed Waseem’s flawed 10(4)b appointment and costs imposed on the BO

📌 Matter: Appointment of Adjoining Owner’s Surveyor and Validity of Award leading to unproportionate costs for the building owner.

Parties

Building Owners (BOs)
Adjoining Owner (AO)
Building Owners’ Surveyor (BOS): Mr Syed Waseem, Civils Consulting Ltd 35c Northbrook Road, llford, Essex, lG1 3BP
Purported AO’s Surveyor: Mr Murad Bokhari Adamo Estates, Kemp House 160 city Road London EC1V 2NX
Adjoining Owner’s Surveyor (valid): Mr Lee Kyson
Third Surveyor (3S): Mr Alistair Redler FRICS

Notice (s.1, s.3 & s.6)
On 20 October 2020, the BOS served notice citing works notifiable under:
- Section 1 (new walls at the line of junction) was mentioned in the cover letter but a section 1 notice was not attached.
- Section 3 (party structure notices)
- Section 6 (adjacent excavation within 3m).
No Response
The AO did not reply within the statutory 14-day period (s.5).
10-Day Request (s.10(4))
On 10 November 2020, the BOS issued a request under section 10(4) requiring the AO to appoint a surveyor within 10 days.
Premature Action
On 12 November 2020, only two days later, the BOS informed the AO he had already “found” a surveyor for him. This was procedurally premature, as the 10-day period had not yet expired.
AO Appointment (s.10(1)(b))
On 21 November 2020, the AO validly appointed Mr Kyson as his surveyor. The Letter of Appointment was posted 22 November and received 24 November.
Purported Appointment by BOS (s.10(4)(b))
On 23 November 2020, the BOS claimed to have appointed Mr Bokhari as the AO’s surveyor under section 10(4)(b).
Invalid Award
Despite notice of the valid AO appointment, the BOS and Mr Bokhari issued an Award on 3 December 2020, which was ultra vires.

The dispute as to validity of appointments was referred under section 10(9) to the 3S.
On 22 January 2021, the 3S awarded20693 2021-01-05 Third Surveyor…:
- Mr Kyson was the properly appointed surveyor under section 10(1)(b).
- The AO’s statutory right of choice must prevail.
- The LoA dated 21 November pre-dated the BOS appointment of 23 November.
- Allegations of “backdating” were unfounded.
- Costs of the referral followed the decision: BOs were liable for both the AO’s surveyor’s referral fees and the 3S’s fees, consistent with section 10(13).

The Award of 3 December 2020 was therefore invalid for want of jurisdiction.

Premature Action under s.10(4)
- The BOS acted under s.10(4)(b) before expiry of the statutory 10 days.
- This pre-empted the AO’s statutory right of appointment under s.10(1)(b).
Unlawful Award
- The BOS and Mr Bokhari knowingly issued an Award despite a valid prior appointment being in place.
- Jurisdiction under s.10(1) requires validly appointed surveyors; absent this, the Award was void ab initio (Onigbanjo v Pearson).
Failure to Progress (s.10(10))
- After the 3S determination, the BOS failed to co-operate in progressing a lawful Award.
- Instead, he advanced a conflicted replacement 3S, frustrating resolution and escalating costs.

The BOs incurred approximately £9,000 for modest domestic works, including:

No valid Award has ever been produced. The BOs were left unprotected by statute yet burdened with disproportionate expenditure.

The escalation of costs stems directly from the conduct of the BOS. His shortcomings were:

Failure to Observe Statutory Procedure
- By acting under s.10(4) prematurely, the BOS deprived the AO of their statutory right to appoint a surveyor.
- This set in motion a parallel and invalid appointment process that led directly to jurisdictional dispute.
Issuing an Award Without Jurisdiction
- Despite clear evidence that the AO had already appointed Mr Kyson, the BOS and Mr Bokhari pressed ahead and issued an Award.
- This forced a referral to the 3S, incurring avoidable fees for both the AO’s surveyor and the 3S.
Disregard for the 3S’s Determination
- Even after the 3S confirmed that Mr Kyson was the validly appointed surveyor, the BOS did not accept or act upon the decision.
- This obstruction prevented resolution under the Act, necessitating further professional time and costs.
Advancing a Conflicted Replacement 3S
- Following the 3S’s retirement, the BOS proposed a replacement with whom the AO’s surveyor had a known conflict.
- This further frustrated the statutory mechanism and prolonged the matter unnecessarily.
Misleading the Building Owners
- The BOs were never advised that the Award of 3 December 2020 was void.
- They were presented with fee demands by both the BOS and Mr Bokhari, leaving them under the false impression that their surveyors had acted lawfully.

Onigbanjo v Pearson [2008] EWCA Civ 9 – Awards without jurisdiction are void ab initio.
Freetown Ltd v Assethold Ltd [2012] EWCA Civ 1657 – Strict compliance with statutory steps is mandatory.
Gyle-Thompson v Wall Street (Properties) Ltd [1974] QB 139 – Premature action invalidates statutory steps.
Power v Shah [2023] EWCA Civ 239 – Failure to adhere to notice/appointment provisions strips surveyors of jurisdiction.

The BOS’s mishandling of procedure created a dispute where none need have arisen.
His premature appointment under s.10(4), coupled with issuing an Award absent jurisdiction, caused the referral to the 3S and the bulk of the avoidable costs.
His failure to accept the 3S’s determination prolonged the dispute and further increased costs.
The BOs were misled, left without a valid Award, and financially prejudiced.

It is respectfully submitted that:

The Award of 3 December 2020 was void ab initio and must be disregarded.
The fee claims of the BOS and Mr Bokhari, being founded on an unlawful Award, are irrecoverable.
The ~£9,000 in unnecessary costs were the direct result of the BOS’s statutory failings and professional shortcomings.