Sale of property — Boundary dispute — County court judgment declaring boundaries — Repeated relitigation of issues — New purchasers obtaining planning permission for development of disputed land Whether claimant entitled to injunction for demolishing houses — Whether applying for injunction abuse of process — Application dismissed
In 1976, the claimant purchased a property from Milton Keynes Development Corporation (MKDC). The boundaries were agreed and incorporated in the plan attached to the contract of sale and the conveyance. Within two or three years of the sale, the claimant alleged that MKDC had incorrectly redrawn the boundaries when preparing the adjoining sites for sale. He started proceedings against MKDC and the dispute had continued ever since.
In 2004, the claimant commenced an action against CNT, the statutory successors to MKDC, alleging intrusion upon his land. CNT counterclaimed that it owned the land and that the claimant had trespassed by erecting walls, fences and other structures. The county court rejected the claim and declared the boundaries in CNT’s favour. The Court of Appeal dismissed an appeal in which the claimant argued that the judge had failed to appreciate that MKDC had dishonestly sought to usurp land that had already been sold to him.
In 2004, the second defendant housing association purchased a site, which included the disputed land, and obtained planning permission to erect 12 houses on the land. The first defendant undertook the building work. The claimant had objected to the planning permission on the basis that part of the land in question belonged to him and he subsequently applied for an interim injunction against the defendants, requiring the demolition of the houses that had been erected and that allegedly encroached either upon his land or over land that he had an option to buy.
The defendants argued that the claimant was bound by the declaration as to the boundaries made by the county court and that his application was therefore an abuse of process.
Held: The application was dismissed.
The claimant could not challenge the finding as to the location of the boundaries as had been declared by the county court. He was bound by that judgment since it was a final judgment, which had been made on the merits and within the jurisdiction of the court. The judge had considered his evidence and had rejected it and there was no proper basis upon which the claimant could now assert that the judgment had been obtained by fraud, nor had he produced any fresh evidence upon which to base such an allegation.
Moreover, the judgment was also binding upon the parties’ privies, which included a privy in estate or interest such as a vendor and purchaser. The title had to be the same in both actions and the purchaser must have acquired the interest subsequent to the judgment in the earlier proceedings. In the present case, the title was the same and the second defendant had acquired its interest after the county court judgment.
Accordingly, the claimant’s application was without merit and constituted an abuse of the process of the court by seeking to relitigate matters that had already been determined and unsuccessfully appealed against.
Although separate considerations might have applied to the section of land that the claimant had an option to purchase, since the option had not been exercised within the requisite time, it had lapsed and the claimant had no further rights under it.
The claimant appeared in person; Lawrence Jacobson (instructed by Phillip Kaye & Co) appeared for the second defendant; the first defendant did not appear and was not represented.
Eileen O’Grady, barrister
