Kuligowski v Kuligowski

Kuligowski v Kuligowski

The proper construction of the plan fixed the boundary 600mm from the rear (Plot 7 side) of the retaining wall, meaning the gabions encroached onto Plot 8. However, proprietary estoppel was established because the original owner acquiesced in the installation of the gabions, and it would be unconscionable for the claimants to assert trespass. The claim in nuisance failed for lack of proof of imminent danger or actual damage.

Parties
Claimant/appellant: Edward Peter Kuligowski; Claimant/appellant: Sharon Lorraine Kuligowski; Defendant/respondent: Peter Kenward; Defendant/respondent: Maureen Olive Emilia Kenward
Jurisdiction
England and Wales
Judgment Date
11 December 2003
Procedural Posture
Civil Appeal / Appeal From Bury County Court to Court of Appeal
Outcome
Appeal dismissed
Legal Topics
Boundary Disputes, Proprietary Estoppel, Trespass, Nuisance
Land Law Equity Tort Boundary Disputes Proprietary Estoppel Trespass Nuisance

Case Brief

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Parties

Edward Peter Kuligowski

Claimant/appellant

Sharon Lorraine Kuligowski

Claimant/appellant

Peter Kenward

Defendant/respondent

Maureen Olive Emilia Kenward

Defendant/respondent

Procedural Posture

Civil Appeal / Appeal From Bury County Court to Court of Appeal

Legal Issues

  1. 1 Proper construction of a conveyancing plan to determine the boundary between two plots
  2. 2 Whether the erection of gabions constituted trespass
  3. 3 Whether proprietary estoppel prevented the claimants from asserting trespass

Ratio Decidendi

The proper construction of the plan fixed the boundary 600mm from the rear (Plot 7 side) of the retaining wall, meaning the gabions encroached onto Plot 8. However, proprietary estoppel was established because the original owner acquiesced in the installation of the gabions, and it would be unconscionable for the claimants to assert trespass. The claim in nuisance failed for lack of proof of imminent danger or actual damage.

Court Disposition

Appeal dismissed

Orders

  • Claimants to pay 80% of the defendants' costs both in the Court of Appeal and below
  • Order as per agreed minute