Carter & Anor v Cole & Anor

Carter & Anor v Cole & Anor

Clause 3.2 of the Transfer Deed does not exclude the Carters' right to repair the roadway; both parties are entitled to repair and to claim the stipulated contribution from the other, provided the work is done to the specified standard. Contribution can only be claimed as and when sums become payable for works, not in advance based on estimates.

Parties
Claimant/respondent: Terence Carter; Claimant/respondent: Jane Carter; Defendant/appellant: Jeffrey Cole; Defendant/appellant: Jacquelyn Cole
Jurisdiction
England and Wales
Judgment Date
11 April 2006
Procedural Posture
Civil Appeal / Appeal From County Court Judgment
Outcome
Appeal dismissed with minor variation to the order
Legal Topics
Easements, Rights of Way, Repair and Maintenance Obligations, Construction of Deeds, Contractual Contribution
Property Law Contract Law Easements Rights of Way Repair and Maintenance Obligations Construction of Deeds Contractual Contribution

Case Brief

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Parties

Terence Carter

Claimant/respondent

Jane Carter

Claimant/respondent

Jeffrey Cole

Defendant/appellant

Jacquelyn Cole

Defendant/appellant

Procedural Posture

Civil Appeal / Appeal From County Court Judgment

Legal Issues

  1. 1 Whether both dominant and servient owners are entitled to repair the roadway under clause 3.2 of the Transfer Deed
  2. 2 Whether either party can claim contribution to repair costs before incurring the expense
  3. 3 Whether the Transfer Deed alters the common law position regarding rights to repair and contribution

Ratio Decidendi

Clause 3.2 of the Transfer Deed does not exclude the Carters' right to repair the roadway; both parties are entitled to repair and to claim the stipulated contribution from the other, provided the work is done to the specified standard. Contribution can only be claimed as and when sums become payable for works, not in advance based on estimates.

Court Disposition

Appeal dismissed with minor variation to the order

Orders

  • Paragraph 8 of the judge's order varied to allow contribution claims as and when sums become payable for works
  • All other parts of the judge's order upheld