Small Claims enforcement..can I make the Managing Director pay up?

[Madeira99]

Hi everyone!

My first posting, but I'd be glad for any info on this.

 

I bought a resale-timeshare week for an apartment in Madeira but it was shabby etc when I viewed it a week after signing the contract.

I cancelled within the 14 days cooling off period which is my right, but the company involved (in the UK), won't repay, saying that my cancellation was outside 14 days etc. My solicitor confirmed that the contract in fact contravened the Timeshare Acts and was not enforcable anyway.

I have been through Small Claims and have been awarded Judgement last week. The company (defendents) are not going to pay as only 2 days left of the 14 day payment deadline and they have dragged out the whole thing for almost a year now. They did not show up at the hearing, and unusually, the judge awarded my solicitors costs in addition , on account that the defendeant had acted unreasonably!

I am going to take out a Warrant of Execution but am not optimistic.

 

If this goes on and the company refuse to pay up, can I transfer the judgement to the Managing Director? It seems to be a husband and wife operation only with a couple of clerks as employees. he is operating as a limited company.

 

I think I have read somewhere that this can be done to secure the debt owing? Any advice would be appreciated.

It is driving me mad that the law appears not to have any teeth against these sharks.

[Trilby274]

Don't think you can as the judgment was against the limited company. Had a similar case about 15 years ago and the MD simply put his company into liquidation. As they had no assets and the building was owned by his father, I got nothing, including the £6.400 legal fees awarded. Hope you have better luck.

 

Somebody more knowledgeable than I will be along to put you right in due course.

[Madeira99]

Cheers Trilby,

Thanks for your reply. I despair of the Small Claims procedure. The law seem to let debtors get away with murder.

 

I definitely read somewhere that this transfer to an individual can happen, but for the life of me I wish I'd "bookmarked" it. My omission. And I can't afford to throw any more money at my solicitor, otherwise the costs will outweigh the money owed.

The court make you jump through hoops to make the claim and pay up at every stage, although you may never get back even your court fees.

 

I am afraid that the defendent in my case may use the same tactic as yours, as there are no assets. He acts only as an agent on a resale transaction for a fee, and just uses the clients' funds. I'll just have to keep my fingers crossed that a CCJ will affect his business.

Fortunately, I can report him to Trading Standards for contravening the Timeshare Acts and there is a sustantial penalty I understand from the solicitor, but we'll see.

Thanks

[Madeira99]

"Somebody more knowledgeable than I will be along to put you right in due course".

 

Can anyone enlighten me futher please?

[MARTIN3030]

I have some thoughts but would like to be sure.I am alerting the site team,hopefully we can clarify.

[MARTIN3030]

DUTIES AND LIABILITIES OF DIRECTORS OF PRIVATE COMPANIES

 

The aim of this note is to provide a basic explanation of the main responsibilities and liabilities of directors of UK private limited companies. The information in this note is not exhaustive and not sufficiently detailed to apply to the circumstances of any particular situation. Although a company is a legal person in its own right and as such can own property and enter into contracts with others, it can only make decisions through those that own or control it. The day to day management of a company is usually entrusted to its directors. As a general rule if a person acts as a director, the law treats him or her as a director (a "shadow director") even if he or she is not called a director and has not been formally appointed as a director. A director is an officer of the company but not automatically an employee. Where a director is also a full-time employee he or she is often referred to as an "executive director". A "non-executive director" is usually part-time and is often appointed for his or her specialist knowledge and experience and/or to provide the board of directors with an impartial opinion.

A director of a company may in certain circumstances be made liable for the debts of the company of which he is a director. This might result in the director being personally required to pay some or all of the company's creditors. Directors can be found guilty of wrongful trading if he or she carries on business when the director knows that it will not be possible for the company to avoid an insolvent liquidation. It is a defence for a director if he can demonstrate that when he became aware of the likelihood of an insolvent liquidation he took all possible steps to minimise the loss to creditors. However, resigning as a director does not necessarily absolve the director from responsibility.

[MARTIN3030]

Directors are being targeted by disgruntled shareholders, regulators, auditors and other claimants. The cost of defending these claims aside from the eventual damages award is often beyond the pocket of all but the wealthiest individuals. Recent changes to the Companies Act 1985 have removed the uncertainty over whether insurance cover taken out by companies to meet such claims is void. Such cover is referred to as Directors and Officers (or D&O) Insurance and increasingly companies are taking out such policies. Directors should take note.

[MARTIN3030]

Enforcing Your Judgement

If a court has decided that someone must pay you an amount of money (you have 'obtained judgment against the debtor'), and you have not received a payment, you can try and get your money (called 'enforcing your judgment') by asking the court for any of the following:

 

 

• A warrant of execution
  
• An attachment of earnings order
  
• A third party debt order
  
• A charging order
  

In addition, if the amount you are owed is more than £750.00, you can also apply to make the debtor bankrupt. Alternatively, if the debtor is a limited company and seems unlikely to be able to pay the judgment quite quickly (say, in three months), this may be an indication of cashflow problems. In these circumstances, you may wish to consider winding up (Insolvency) proceedings. However, both bankruptcy and winding up proceedings can be complex and expensive.

[MARTIN3030]

2 questions.

What is the company called?

How much is the Judgement entered for ?

[Madeira99]

Hi Martin

Thanks for your help. I just have doubts that even sending the bailiff will recover the money owed as he has prevaricated for almost a year, sending in late defences, not appearing at either hearing etc. On his website, he says he has been in business for the past 20 years.

Briefly as I can, my friend and I bought two consecutive weeks in a resale timeshare. She has also pursued a Small Claim through her own local court, and has also been awarded judgement with a different judge, which seems to speak for itself. The defendent is a company, Brantridge Park Sales Ltd, the timeshare resale side is called "Time Travellers, a division of Brantridge Park Sales Ltd".

I have spoken in the past to the Timeshare Consumers Association who name this company as one of their recommended sellers! This I will take up with them later, as I will with Trading Standards who I also consulted at the beginning of the claim.

 

Without setting out the long history of the claim, as I said in my initial post, the contract I signed was deemed invalid as it did not comply with the requirements of the Timeshare Acts. (I can go into more detail if you need it).

 

I paid by cheque £2,800 which was cashed on 11th Dec 2007.

The court judgement was for this amount, plus court fees, plus my legal costs which totalled £3,575.75. Now, also he must pay the Bailiff's fees.

 

He may buckle and pay the bailiff, but he has resisted so far, so who knows?

[Madeira99]

Martin

Is there any feedback you can give me on the details of the two questions you asked me?

The defendant has paid up promptly to my friend, but the cheque has yet to clear through the court. He has not paid me although warrants were served within two days of each other (18th and 20th Nov), and my friend received notification on 28th Nov of a cheque being paid.

Any advice would be appreciated.