Owner of ‘unmarketable’ property loses appeal against order to pay surveyors for services

About this case:

• Citation:
  [2025] SAC (Civ) 4
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Sheriff Principal N A Ross

Alias Smith & Garrett Ltd originally raised a Simple Procedure action for payment of £722.40 against Jean Golightly after they was asked to make a report on the issue. It was not disputed by the appellant that services were provided to her, and in response to the appeal the respondent argued that there was no credible reason why she should not pay the invoice.

The appeal was heard by Sheriff Principal Nigel Ross.

No use to her

In 2023, the appellant put her house up for sale. During the sale process it became apparent that there was a boundary discrepancy between the extent of the property she occupied and what was shown on the Title Plan. She instructed the respondent, whom she had previously instructed for an unrelated matter in 2020, to investigate and clarify her boundaries.

On Monday 3 July 2023 the respondent told the appellant via email that they would review and report on her title. Terms of Engagement were sent by the respondent to the appellant on 3 July 2023. These terms were accepted by the appellant. An estimate of fee had been given to her, and the invoice rendered on 31 July 2023 was in accordance with this estimate.

A report was sent to the appellant on 5 July 2023 which confirmed that the Title Plan did not coincide exactly with the boundaries on the ground. It also confirmed the area of ground which she had been told was included in her title was outwith the title. In refusing to pay, the appellant stated that this report and other supplementary questions did not resolve her original issue.

The appellant conceded at an evidentiary hearing that she refused to pay because the advice was “no use to her” and “not what she had paid them to do”. She complained that the sale of her property had been prevented due to the boundary difference, with a mortgage company refusing to lend against it. Her title was described as unmarketable, and she maintained she was entitled to compensation.

No credible link

In his decision, Sheriff Ross noted that the appeal raised new factual points, saying: “This appeal is an attempt to re-argue the case, on the basis of new material which was not argued before the sheriff. An appeal is not an opportunity for a second attempt at a better result. An appeal can only succeed if it is shown that the original court erred in some manner, whether in wrongly applying the law or reaching a conclusion on the evidence that no court ought to have reached.”

He continued: “Even taking the most generous view of the appellant’s position, the facts relied upon for the appeal are new. The sheriff made no error in considering the facts before him, was not invited to consider the effect of the 2020 contract, and indeed confirmed with the appellant that she had not paid the 2023 invoice because she did not like the result. No error is demonstrated.”

Noting that the result of the survey was not the respondent’s fault, Sheriff Principal Ross said: “The appellant’s complaint is that she is left with an unmarketable title. She makes no credible link with the performance of the present contract or, for that matter, with the 2020 contract. She blames the conveyancer, selling agent and others at around the time of purchase, namely 2016. It is entirely illogical to attribute any causal link to the respondent.”

He concluded: “The title, if it is truly unmarketable, was acquired in 2016. She has failed to show any breach of the 2023 contract.  Even if the 2023 contract had been breached, that does not render the 2023 invoice unenforceable. To justify non-payment the appellant would require to establish that she had suffered loss equal or greater to the contract sum. That would normally be by counterclaim involving retention and set-off. Counterclaims are not competent in Simple Procedure.”

The appeal was accordingly refused.