StayingCalm vs Abbey with no CCA**WON**

[surfaceagentx20]

The answer would read:

 

1 Not admitted.

2 It is admitted that the Defendant has been supplied with some money by the Claimant. It is not admitted the supply was pursuant to the agreement sued upon.

3 It is admitted that the Defendant has repaid money to the Claimant. It is not admitted the repayment was pursuant to the agremeent sued upon.

 

The answer need not and should not assert the agreement is unenforceable. The answer should be confined to addressing the facts the admission of which is sought.

 

x20

[tinkerbell20]

The answer would read:

 

1 Not admitted.

2 It is admitted that the Defendant has been supplied with some money by the Claimant. It is not admitted the supply was pursuant to the agreement sued upon.

3 It is admitted that the Defendant has repaid money to the Claimant. It is not admitted the repayment was pursuant to the agremeent sued upon.

 

The answer need not and should not assert the agreement is unenforceable. The answer should be confined to addressing the facts the admission of which is sought.

 

x20

 

 

Thanks

 

Tinks x

[StayingCalm]

Thanks for your interesting comments x20.

On their N265 disclosure Restons stated:

This account was opened on 27.3.1998 at Abbey National and was acquired by the Claimant in March 2001. The Claimant is unable to access documents issued prior to March 2001 (including the original Credit Agreement dated 27.3.1998)

I have read on other threads on this site that MBNA do not have agreement details on any of these original Abbey accounts (and from the statement above, possibly no documents whatsoever). It would appear to me that only brief account details were transferred electronically from Abbey to MBNA.

I received from Restons yesterday the following:

1. Copy of Witness Statement

2. Copy of Default Notice

3. Copies of statements from Dec 04 to March 08

4. Copies of blank Credit Agreement, and blank Credit Card Application Form.

I will do as you suggest and chase a reply to the previous letter if one does not arrive soon.

sc

[surfaceagentx20]

The inadequacy of MBNA's disclosure is beginning to annoy me and I'm getting ruffled by the fact that the agreement began life as an agreement between you and Abbey.

 

There was clearly an agreement of sorts once upon a time. That agreement pre-dates the sale of Abbeys credit card wing to MBNA in March 2001. It was therefore an agreement between you and Abbey not you and MBNA. At the time of the agreement, MBNA and Abbey were two separate legal entities. At least, I'd be surprised if this was not the case. Only where there had been a change of name would this fact be of no consequence.

 

MBNA served a default notice which opens with this statement:

 

'We refer to the above agreement you have entered into with us. Clause 3 of that agreement provides ...'

 

Yet no agreement with MBNA was ever entered into; it was with Abbey.

MBNA do not produce the agreement. They are unable to produce the agreement with clause 3 written on it. Neither do MBNA produce any documents dealing with the agreement between them and Abbey by which they acquired the right to sue under the agreement. MBNA rely on just one witness in this case who says this about MBNA's acquisition of the right to sue:

 

2. The claim is for the sum of £11895.23 together with interest and arises from the outstanding balance due under an Abbey Rewards Card set up in March 1998. This card was acquired by MBNA. The account is in the name of the Defendant and he is solely liable although there is another authorised user on the card.

 

'This card was acquired by MBNA'? 'This 'card''?

 

In its PoC, MBNA make no mention of acquiring rights to sue from MBNA. They say this:

 

The Claimant claims payment of the overdue

balance due from the Defendant under a

contract dated on or about 27/03/1998

in the sum of 11921.30 inclusive of

interest to the date of this summons at

8% per annum from 14/04/08 to 24/04/08

 

MBNA do not plead that the contract was with them. They do not plead it was under a contract with Abbey either. They do not plead it was a contract regulated under The Consumer Credit Act 1974. They have made no disclosure of a kind which demonstrates a right to sue and since they are now restrained from adducing further documentary evidence, I'd like to keep it that way.

 

In the circumstances and on reflection, I think there is more to do in the area of the right to sue. I'm just not sure whether flagging all this up right now is for the better or whether, for reasons I've stated before, it would be better to leave it to the last moment. On the one hand it might kill the case stone dead. On the other flagging things up may cause MBNA to take corective action. As for killing the case stone dead, the fact that they were in breach of a section 78(1) request and served a defective default notice doesn't seem to phase them right now. If that doesn't phase them, perhaps saying 'you've no rigt to sue' wouldn't phase them either!

 

If anyone knows the legal framework by which MBNA acquired Abbey's card wing that would be useful to know.

 

x20

[StayingCalm]

Throughout this dispute I have addressed my letters to Abbey Credit Card, and most replies have been on Abbey headed paper, (in Abbey envelopes) and their address as:

Abbey Credit Card,

PO Box 30,

Chester Business Park,

Chester, CH4 9FD.

However the small print at the bottom states: The Abbey credit card is issued by MBNA Europe Bank Limited.

 

Statements received are headed Abbey, but payments to be made to MBNA.

 

As you say the Default Notice was headed MBNA.

 

Other items received:

 

Our Commitment to You

MBNA Europe Bank Limited, the issuer of your Abbey Credit Card, is a company of people commited to providing the finest products backed by consistently top quality service (haha !!!)..............................

....our address is:

Customer Service

Abbey Credit Card

Stansfield House

Chester Business Park

Chester

CH4 9QQ

MBNA Europe Bank Limited

Registered Office: Stansfield House

Chester Business Park, Chester CH4 9QQ

Registered in England number 2783251

and

 

Contact US

Occasionally, we may not live up to our promises to provide you with a high quality sevice. It is our commitment to you as a customer that if you have a complaint , it will be dealt with fairly and promptly. (!!!!!!!!!!!) ......................................

........ you may contact us at the following address:

Customer Advocate Office

MBNA Europe Bank Limited

Chester Business Park

Wrexham Road

Chester

CH4 9FB

I also have a MBNA credit card and some correspondance received refers to two account numbers (one the abbey account no., and the other the MBNA account no.), and this was on MBNA headed paper.

 

sc

[BlueSquirrel]

Did you get a new card when it switched from just Abbey to Abbey via MBNA. MBNA have just swallowed up the Beneficial card that I used to have, it was a Beneficial Mastercard, now it is MBNA visa with a new account number - same expiry date. Are they obliged to send anything with the new card, I just got a "here it is, you're with MBNA now" letter. Just wondered if it would help you at all, if they were supposed to do something!

 

I closed an MBNA account years ago as I disliked them, now they seem to be taking over everything including this one and my Bank of Scotland card.

[tinkerbell20]

Did you get a new card when it switched from just Abbey to Abbey via MBNA. MBNA have just swallowed up the Beneficial card that I used to have, it was a Beneficial Mastercard, now it is MBNA visa with a new account number - same expiry date. Are they obliged to send anything with the new card, I just got a "here it is, you're with MBNA now" letter. Just wondered if it would help you at all, if they were supposed to do something!

 

I closed an MBNA account years ago as I disliked them, now they seem to be taking over everything including this one and my Bank of Scotland card.

 

 

 

My mum had one and it stayed as a Abbey card - renewals had MBNA in small print on back

[tinkerbell20]

The inadequacy of MBNA's disclosure is beginning to annoy me and I'm getting ruffled by the fact that the agreement began life as an agreement between you and Abbey.

 

There was clearly an agreement of sorts once upon a time. That agreement pre-dates the sale of Abbeys credit card wing to MBNA in March 2001. It was therefore an agreement between you and Abbey not you and MBNA. At the time of the agreement, MBNA and Abbey were two separate legal entities. At least, I'd be surprised if this was not the case. Only where there had been a change of name would this fact be of no consequence.

 

MBNA served a default notice which opens with this statement:

 

'We refer to the above agreement you have entered into with us. Clause 3 of that agreement provides ...'

 

Yet no agreement with MBNA was ever entered into; it was with Abbey.

MBNA do not produce the agreement. They are unable to produce the agreement with clause 3 written on it. Neither do MBNA produce any documents dealing with the agreement between them and Abbey by which they acquired the right to sue under the agreement. MBNA rely on just one witness in this case who says this about MBNA's acquisition of the right to sue:

 

2. The claim is for the sum of £11895.23 together with interest and arises from the outstanding balance due under an Abbey Rewards Card set up in March 1998. This card was acquired by MBNA. The account is in the name of the Defendant and he is solely liable although there is another authorised user on the card.

 

'This card was acquired by MBNA'? 'This 'card''?

 

In its PoC, MBNA make no mention of acquiring rights to sue from MBNA. They say this:

 

The Claimant claims payment of the overdue

balance due from the Defendant under a

contract dated on or about 27/03/1998

in the sum of 11921.30 inclusive of

interest to the date of this summons at

8% per annum from 14/04/08 to 24/04/08

 

MBNA do not plead that the contract was with them. They do not plead it was under a contract with Abbey either. They do not plead it was a contract regulated under The Consumer Credit Act 1974. They have made no disclosure of a kind which demonstrates a right to sue and since they are now restrained from adducing further documentary evidence, I'd like to keep it that way.

 

In the circumstances and on reflection, I think there is more to do in the area of the right to sue. I'm just not sure whether flagging all this up right now is for the better or whether, for reasons I've stated before, it would be better to leave it to the last moment. On the one hand it might kill the case stone dead. On the other flagging things up may cause MBNA to take corective action. As for killing the case stone dead, the fact that they were in breach of a section 78(1) request and served a defective default notice doesn't seem to phase them right now. If that doesn't phase them, perhaps saying 'you've no rigt to sue' wouldn't phase them either!

 

If anyone knows the legal framework by which MBNA acquired Abbey's card wing that would be useful to know.

 

x20

 

 

RBS disclosed to my friend under disclosure a computer print out saying default notice issued but no data. They haven't disclosed a copy of the default notice (which my friend never received). So there is no way to see whether it had prescribed terms & remedies , correct amount etc.

 

Should she make application for disclosure of actual document coupled with unless order or would it be a waste of time?

[surfaceagentx20]

A bank faced with a defence that the default notice was never served, let alone served in a way which met the prescribed terms etc will be burdened with the task of having to demonstrate there was delivery and there was compliance with prescribed terms.

 

On the bank's case there will have been at least one copy of the DN; the one that was sent to the debtor.

 

It would be astonishing if the bank released their only version of the DN. In all likelihood they retianed a copy. A copy may be in paper form or electronic form.

 

If the bank's paper copy of the DN was foolishly destroyed prior to commencing the case, to properly deal with their disclosure obligations the bank will need to include the document within Section 3 of their disclosure list and say what becmae of it. I say, that in a proper case it is right the creditor should be tested on such a claim. It is the easiest thing in the world for a bank to say 'oh we binned it', without there then being serious repurcussions in terms of the prejudice that selfish act has caused to the Defendant and to the court in pursuit of its task to do justice. In such circumstances there should be disclosure of the bank's policy on the destruction of documents and a paper trail beginning with the instruction to destroy an ending with the record confirming destruction. I'd want all that lot disclosed as documents to be disclosed in Section 1 of the ban's disclosure list. If it wawsn't, I'd head off seeking specific disclosure under CPR 31.12.

 

If the bank's electronic copy of the document has been destroyed, the same as above will apply.

 

If the bank never retained a copy whether on paper or electronic and all they did was send out the only paper copy they ever had, they should say so in Section 2.

 

If the bank should seek to make a reconstruction of the document, they will need to disclose the paper and/or electronic components on which they rely to base their reconstruction. The bank will not, or at least in my opinion ought not, to be allowed to base a reconstruction on any material which is not recorded. If there is no record that the DN was issued on a specfic date, the DN will be dateless. If there is no record that the DN required compliance by a specific date, the date for compliance will be dateless. The person or person's making the reconstruction will need to give oral evidence as to the method adopted for reconstruction. They can be expected to be beateen up on cross-examination.

 

x20

[tinkerbell20]

A bank faced with a defence that the default notice was never served, let alone served in a way which met the prescribed terms etc will be burdened with the task of having to demonstrate there was delivery and there was compliance with prescribed terms.

 

On the bank's case there will have been at least one copy of the DN; the one that was sent to the debtor.

 

It would be astonishing if the bank released their only version of the DN. In all likelihood they retianed a copy. A copy may be in paper form or electronic form.

 

If the bank's paper copy of the DN was foolishly destroyed prior to commencing the case, to properly deal with their disclosure obligations the bank will need to include the document within Section 3 of their disclosure list and say what becmae of it. I say, that in a proper case it is right the creditor should be tested on such a claim. It is the easiest thing in the world for a bank to say 'oh we binned it', without there then being serious repurcussions in terms of the prejudice that selfish act has caused to the Defendant and to the court in pursuit of its task to do justice. In such circumstances there should be disclosure of the bank's policy on the destruction of documents and a paper trail beginning with the instruction to destroy an ending with the record confirming destruction. I'd want all that lot disclosed as documents to be disclosed in Section 1 of the ban's disclosure list. If it wawsn't, I'd head off seeking specific disclosure under CPR 31.12.

 

If the bank's electronic copy of the document has been destroyed, the same as above will apply.

 

If the bank never retained a copy whether on paper or electronic and all they did was send out the only paper copy they ever had, they should say so in Section 2.

 

If the bank should seek to make a reconstruction of the document, they will need to disclose the paper and/or electronic components on which they rely to base their reconstruction. The bank will not, or at least in my opinion ought not, to be allowed to base a reconstruction on any material which is not recorded. If there is no record that the DN was issued on a specfic date, the DN will be dateless. If there is no record that the DN required compliance by a specific date, the date for compliance will be dateless. The person or person's making the reconstruction will need to give oral evidence as to the method adopted for reconstruction. They can be expected to be beateen up on cross-examination.

 

x20

 

 

They hadn't listed either default notice or notice of termination on list of documents. have introduced it on exchange of witness statements. hadn't disclosed under sar either

[surfaceagentx20]

Well that's bad. On their case they plainly had at least one DN. If they never had a DN at any time then they can't say they served one!!

 

I suspect they're re-constructing. This then comes back to what I was talking about earlier in this thread about 'timing' and the risk that flagging up a scenario may cause the oponent to take corective measures.

 

Has the Defendant's data suplied in response to the SAR request been disclosed in the Defendant's disclosure list? If not it might be opportune to do so under the 'continuing disclosure' obligation. Once that's in, it might then be appropriate to submit a CPR 18 Request for clarification of the witness statement.

 

With the benefit of the disclosure of the Defndant's SAR data, it might be possible to gwet the bank to squirm in a way where 'corective measures' would be impossible without destrying credibility.

 

x20

[The GodMother]

i would ask for disclosure of it

[tinkerbell20]

Well that's bad. On their case they plainly had at least one DN. If they never had a DN at any time then they can't say they served one!!

 

I suspect they're re-constructing. This then comes back to what I was talking about earlier in this thread about 'timing' and the risk that flagging up a scenario may cause the oponent to take corective measures.

 

Has the Defendant's data suplied in response to the S.A.R - (Subject Access Request) request been disclosed in the Defendant's disclosure list? If not it might be opportune to do so under the 'continuing disclosure' obligation. Once that's in, it might then be appropriate to submit a CPR 18 Request for clarification of the witness statement.

 

With the benefit of the disclosure of the Defndant's SAR data, it might be possible to gwet the bank to squirm in a way where 'corective measures' would be impossible without destrying credibility.

 

x20

 

They still haven't complied with the SAR request either and they're well out of time on that or my friend would have disclosed it.

[The GodMother]

u could ask the courts via a n244 to make them comply.

[StayingCalm]

I have now received the following reply from Restons.

WITHOUT PREJUDICE SAVE AS TO COSTS

Dear Sir

Re: MBNA v …………

Overdue Credit Card ………….

We refer to the above matter and in particular to your letter to Mr …… dated 10th Sept 2008

At various points in your Defence and Witness Statement you allege the Bank is now obliged to provide an exact copy of the consumer credit agreement which you signed.

There is no legal duty to provide this.

The legislation gives a specific meaning to the word ‘copy’. Section 180 of the Consumer Credit Act 1974 expressly provided Parliament with the power to prescribe the meaning of the word ‘copy’. This is done by Regulation 3 (2) of The Consumer Credit Act – (Cancellation Notices and Copies of Documents) 1983 – which makes it clear that any copy agreement provided by the creditor can omit ‘any signature box, signature, or date of signature …..’ . We can forward you a copy of the regulation if this assists.

To repeat the point, the Bank is under no obligation to provide a copy of the agreement containing signatures of both parties.

Enclosed to the bank’s witness statement is a proforma of the Agreement which you would have signed. This contained all the prescribed terms which the Consumer Credit Act and Regulations made under it, require for this specific type of account.

We note your comments about the default Notice and your reference to the case of ‘Swain v Woodchester Leasing’. You will be aware from that case the creditor was able to recover the arrears quoted in the Default Notice together with interest – if not the full amount. This is because there is no requirement on a creditor to serve a Default Notice if it simply wants to claim arrears. The requirement arises only if the creditor wants to recover the full outstanding balance under the Agreement.

This means that your comments about the Default Notice do not provide a Defence to the Bank’s claim for the arrears of £xxxx together with contractual interest.

As neither the witness statement nor the defence deny the existence of the account or spending on it, then it is open to our Client to simply serve a new Default Notice or commence a new set of proceedings in order to claim the full amount.

In light of the fact that there is no requirement on our Client to provide an exact copy of what was signed, we fail to see how you can continue to defend this claim.

The purpose of this letter is to enquire in light of the above you are prepared to reach an amicable settlement to this matter. Our client will consider any sensible offer of payment but will not accept merely a nominal offer.

This letter should not be regarded as an acknowledgement of any weakness in the Bank’s case but an attempt to try and resolve matters.

They seem to forget they do not have a signed agreement for Court !!!

 

sc

[citizenB]

I have now received the following reply from Restons.

 

 

 

WITHOUT PREJUDICE SAVE AS TO COSTS

 

 

 

 

 

They seem to forget they do not have a signed agreement for Court !!!

 

sc

 

StayingCalm.. I rather think they are trying to play down the fact that they will need to provide a signed copy for the court. It is interesting to see they have covered their BTMs with the Without Prejudice insertion.

[surfaceagentx20]

How about this as a reply:

 

Thank you for your letter dated (date).

 

For the avoidance of doubt, I maintain the bank has an obligation to provide a true copy of the agreement within the meaning of Regulation 3 of Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 and which obliges your client to provide a ‘true’ copy of the executed agreement to me.

 

I accept that there are savings in regard to this obligation and of the kind set out in Regulation 3(2) to include under regulation 3(2)(b) an ability to provide a true copy without the same bearing signatures.. However, it is clear from the evidence given by your client’s witness, that the witness would be unable to say under cross examination that the document purporting to be a true copy minus signatures has ever been compared with the original and is in consequence a true copy of it. On the contrary, it is clear that the witness seeks to comply with the obligation imposed under regulation 3 by means of a re-construction exercise without any first hand, direct knowledge of the appearance of the original agreement. The witness merely surmises. Further it is evident that for reasons which have not been explained, the original document is and has for some time, been unavailable for comparison purposes and it is therefore perverse to maintain as fact that a document is a true copy of another document if neither the original nor a genuine reproduction of that other document can be produced to substantiate the evidence of the witness.

 

Moreover, the savings under regulation 3(2)(b) in relation to the production to me of a true copy relate only to my request under section 78(1) of The Consumer Credit Act 1974. They have no wider application. The savings could not for example, be relied upon to excuse a failure to bring the original agreement into court.

 

I am well aware that in Woodchester v Swayne the court limited the claimant’s recovery to just the correct amount of arrears set out in the default notice. However, I beg to differ with your suggestion that my comments in relation to the default notice do not operate as a defence. The delivery of the default notice in circumstances where your client was in breach of its obligation to deliver a true copy of the agreement following a request under section 78(1) of the Act served to prohibit your client from enforcing the agreement for so long as it neglected to comply with the request. Your client can not rely on the default notice if, as was the case, your client was in default of its obligation to comply with my request under section 78(1). The default notice was clearly a step taken to enforce the agreement. It incorporated the words ‘enforce’ and informed me that if I failed to comply ‘further enforcement’ would follow.

 

I further beg to differ with your suggestion that your client might subsequently deliver a second default notice. Apart from its continuing failure to comply with my section 78(1) request, your client has now terminated the agreement and it is evident from both the default notice leading to termination and the proceedings that your client has already evinced an intention to recover what it says is the full outstanding balance. Your client may not serve a second effective default notice in prescribed form post-termination of the agreement. Any such second default notice will necessarily state a date by when I would be required to comply after which in default the agreement would terminate. The second default notice would therefore contain the fiction that the agreement endured when as we both know, it was terminated by your client long ago.

 

You appear to recognize that within the current proceedings your client’s position at best is that it will recover only arrears stated on the default notice. That best case scenario is advanced without regard for the provisions of section 78(6) of the Act. Rather than demonstrating the existence of a valid claim, your letter serves only to reinforce that at the date of the commencement of this case your client had no immediate right to be paid any of the sums it now claims.

 

y/f

 

x20

[bazaar]

Quite brilliant

[pt2537]

You appear to recognize that within the current proceedings your client’s position at best is that it will recover only arrears stated on the default notice.

im not entirely sure i agree with that statement, unless they can satisfy the court that a document was signed by the debtor and that document contained as opposed to embodies the prescribed terms then the courts powers are nullified by s127 so the agreement is unenforceable and no monies can be recovered

[surfaceagentx20]

PT, that would be to presuppose there were proceedings under section 65 and brought by the Claimant for an enforcement order which could be dismissed under section 127. There aren’t any section 65 proceedings.

The extract you have highlighted from the proposed response is in the context of the claimant’s solicitor referring to an imagined power to deliver a second DN where its recovery in the present ongoing case was limited to just the arrears stated on an earlier DN. The ‘best case scenario’ so called is ‘best case’ as the claimant sees it on the matter of DNs, not as the defendant does. In the context of a trial, the admissibility of the agreement in reconstructed form is dealt with earlier in the letter.

 

x20

[mcuth]

it is clear from the wording of the Act and furthermore the regulations (Consumer Credit (Enforcement, Default and Termination Notices)

Regulations 1983 (SI 1983/1561)) that the wording must be reproduced in the form as laid out in the regs, and furthermore it is clear that no exceptions are permitted.

 

Hey Paul, could you do me a favour and send me one of those handy copies of this please??

 

Cheers

Michael

[surfaceagentx20]

Michael,

 

You can grab it all here.

 

x20

[mcuth]

Michael,

 

You can grab it all here.

 

x20

 

Blimey, I've been here ~2.5 years and not seen that yet!

Thanks for pointing that out x20

 

Cheers

Michael

[supasnooper]

I just can't believe Restons ignorant attitude to the Consumer Credit Act.

 

Keep up the good work and Good Luck SC.

[StayingCalm]

Thanks snooper.

 

Yes, Restons rely on the ignorance of most of their victims :(, but they have meet their match here with the fantastic help from CAG.

 

I'm now waiting for a reply from them to that superb letter that x20 put together for me!! :grin:

 

 

Thank you for your letter dated (date).

 

For the avoidance of doubt, I maintain the bank has an obligation to provide a true copy of the agreement within the meaning of Regulation 3 of Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 and which obliges your client to provide a ‘true’ copy of the executed agreement to me.

 

I accept that there are savings in regard to this obligation and of the kind set out in Regulation 3(2) to include under regulation 3(2)(b) an ability to provide a true copy without the same bearing signatures.. However, it is clear from the evidence given by your client’s witness, that the witness would be unable to say under cross examination that the document purporting to be a true copy minus signatures has ever been compared with the original and is in consequence a true copy of it. On the contrary, it is clear that the witness seeks to comply with the obligation imposed under regulation 3 by means of a re-construction exercise without any first hand, direct knowledge of the appearance of the original agreement. The witness merely surmises. Further it is evident that for reasons which have not been explained, the original document is and has for some time, been unavailable for comparison purposes and it is therefore perverse to maintain as fact that a document is a true copy of another document if neither the original nor a genuine reproduction of that other document can be produced to substantiate the evidence of the witness.

 

Moreover, the savings under regulation 3(2)(b) in relation to the production to me of a true copy relate only to my request under section 78(1) of The Consumer Credit Act 1974. They have no wider application. The savings could not for example, be relied upon to excuse a failure to bring the original agreement into court.

 

I am well aware that in Woodchester v Swayne the court limited the claimant’s recovery to just the correct amount of arrears set out in the default notice. However, I beg to differ with your suggestion that my comments in relation to the default notice do not operate as a defence. The delivery of the default notice in circumstances where your client was in breach of its obligation to deliver a true copy of the agreement following a request under section 78(1) of the Act served to prohibit your client from enforcing the agreement for so long as it neglected to comply with the request. Your client can not rely on the default notice if, as was the case, your client was in default of its obligation to comply with my request under section 78(1). The default notice was clearly a step taken to enforce the agreement. It incorporated the words ‘enforce’ and informed me that if I failed to comply ‘further enforcement’ would follow.

 

I further beg to differ with your suggestion that your client might subsequently deliver a second default notice. Apart from its continuing failure to comply with my section 78(1) request, your client has now terminated the agreement and it is evident from both the default notice leading to termination and the proceedings that your client has already evinced an intention to recover what it says is the full outstanding balance. Your client may not serve a second effective default notice in prescribed form post-termination of the agreement. Any such second default notice will necessarily state a date by when I would be required to comply after which in default the agreement would terminate. The second default notice would therefore contain the fiction that the agreement endured when as we both know, it was terminated by your client long ago.

 

You appear to recognize that within the current proceedings your client’s position at best is that it will recover only arrears stated on the default notice. That best case scenario is advanced without regard for the provisions of section 78(6) of the Act. Rather than demonstrating the existence of a valid claim, your letter serves only to reinforce that at the date of the commencement of this case your client had no immediate right to be paid any of the sums it now claims.