PG Assignment and Property Act 136 & 196

[Eshezo]

Dear All,

 

I know there has been many threads on the Property Act section 136 and 196, however I can;t find anything in direct relation to my query.

 

I have a case where and original contract (PG) has been assigned to another company who has issued a statutory demmand in relation to it.

 

Set Aside action was filed based on the notice of assignment not being served pursuant to section 196(4) Of The Property Act.

 

In court the claiment apposed this by using Section 196(3) of the act which says :-

 

Any notice required or authorised by this Act to be served shall sufficiently served if it is left at the last-known place of adbode or business in the United Kingdom of the lessee, lessor, mortgagee, mortgagor, or other person to be served, or, in case of a notice required or authorised to be served on a lessee or mortgagor, is afixed or left for him on the land or any house or building comprised in the lease or mortgage, or, in the case of a mining lease, is left for the lessee at the office or counting house of the mine.

 

He also quoted case Kinch and another v Bullard and others where there is an instance of a notice being served by normal post and accepted, however on reading the case the only reason it was accepted was because the wife admitted to recieving the notice and destroying it before her husband recieved it !!, also in the case it says :

 

It appears to me that the natural meaning of section 196(3) is that if a notice can be shown to have been left at the last-know abode or place of business of the addressee, that that constitutes good service, even if the addressee does not actually recieve it.

 

I translate the above to the claiment still needing to show proof of delivery and therefore section 196(4) would apply.

 

The case is adjourned until next week but I would appriciate views on the position of section 196 3 'v' 4 and if there is room for the claiment to wiggle or if it's indeed as I see it and the claiment still having to show proof.

 

Of course I can put the to stricted proof but that won't wash if they can get away with saying it doesn;t have to be registered post or hand served.

 

Any definative help / replies on this would be appriciated.

 

rgds

[TweedleDee]

Unfortunately your view point does conflict with the authorities.

 

See this para from Kinch:

 

Kinch v Bullard [1998], s 4 is treated as a separate provision to s 3 and not as an add on:

 

“Section 196(4) is a separate and additional provision. It provides, in the first place, that if a notice is served by registered post or recorded delivery, then, even if it can be shown not actually to have been delivered at the relevant premises, the notice will none the less be deemed to have been served at the premises, unless returned undelivered.

 

Secondly, it provides that (assuming that it is not returned undelivered) a notice sent by registered post or recorded delivery is deemed to have been served at the time when it would, in the ordinary course of post, have been delivered. The use of the word 'also' near the beginning of s 196(4) appears to me to emphasise that, far from being intended to be a provision cutting down the generality of s 196(3), it is intended to be an additional provision.”

 

Also check Kinch again where the following para is relevant:

 

"So far as the principle is concerned, it seems to me that, by putting the notice in the post, Mrs Johnson effectively left it to the Post Office to serve the notice on her behalf. One therefore has to ask oneself whether the person who was, in effect, appointed by Mrs Johnson to serve the notice acted in accordance with the test propounded by Russell LJ in Newborough. In my judgment, by posting the envelope containing the notice, and addressed to Mr Johnson at the property, through the letter box of the property, the postman served the notice in accordance with that test. I do not think that it is right to test the matter by reference to what Mrs Johnson thought or intended, because she left it to the Post Office to serve the notice. Accordingly, subject to any other arguments, once the notice was posted through the letter box, it had been “served” in accordance with section 196(3), and therefore “given” in accordance with section 36(2), and, as I have mentioned, such a notice cannot be “un-served” or “un-given”."

 

That is only one but there are others such as:

 

Warborough Investments Ltd v Central Midland Estates Ltd and another (2006)

Haarlam v Kasner (1992)

Blunden v Frogmore Investments Ltd (2002)

 

I personally wouldn't use that as the sole point to defeat the SD.

[Eshezo]

But the only reason in Kinch v Bullard that the Post Office is referenced is because Mrs Johnson admitted to recieving the notice and destroying it prior to her Husband seeing it.

 

In my case the claiment simply posted the alleged notice by normal post and the defendant never recieved it. The Claiment is unable to "show" it was sent.

 

I'll look at teh other cases you have referenced aswell, thanks

[TweedleDee]

As mentioned, s 3 is separate from s 4. They don't need to send proof of delivery but a witness statement may suffice to show that it was posted. The point in Kinch is that the husband never received it so in essence it is the same as the situation you clarify.

 

Also in Van Haarlam and another v Kasner and another, the person being served under s 196(3) was in prison at the time for spying charges thus it seems he never received it and the lessers took possession of the premises a few weeks later.

 

Do not forget that an imperfect assignment is not fatal to their claim and even if they did not comply with the provisions of s 196, it only makes the assignment equitable and they may then send a notice of assignment to you to perfect it (may have a case on abuse of process) or join the original creditor in this SD.

 

As mentioned, I would concentrate on other aspects of the case for a set aside as an alternative in case they win that point.

[Eshezo]

As mentioned, s 3 is separate from s 4. They don't need to send proof of delivery but a witness statement may suffice to show that it was posted. The point in Kinch is that the husband never received it so in essence it is the same as the situation you clarify.

 

I don't completly agree here because my argument is regarding the service of notice, clearly in Kinch it was deemed served because Mrs Johnson admited recieving it and therefore regardless of any method used to deliver the notice it would be seen as served to the correct address and therefore forfilling the requirments of service.

 

Also in Van Haarlam and another v Kasner and another, the person being served under s 196(3) was in prison at the time for spying charges thus it seems he never received it and the lessers took possession of the premises a few weeks later.

 

Again in Van Haarlam irispective of the defendant being in prisonthe notice was served correctly in person and therefore can be shown as delivered.

 

I'm still on the fact that the claiment in my case has allegidly posted the notice by normal post and therefore cannnot show that it has been delivered, further up held with the appauling performance statistics of the Post Office, proven in their own report. s3 is clear in saying ......if the notice is left..... and in Kinch also clear in saying ....if it can be shown...., s4 of course clear in the method of delivery if not through s3.

 

 

Do not forget that an imperfect assignment is not fatal to their claim and even if they did not comply with the provisions of s 196, it only makes the assignment equitable and they may then send a notice of assignment to you to perfect it (may have a case on abuse of process) or join the original creditor in this SD.

 

I agree with this and the argument is that any assignment that may exist would only be of an equitable nature. given this the claiment cannot take action in isolation and therefore the SD would be setaside.

 

Of course in adition to the notice the claiment has not produced a copy of the alledged assignment yet which will be the second fall back because the notice itself doesn't constitute an assignment without the actual assignment deed and even then the dates need to tie in.

 

 

Interesting points and one that seems to be forever disputed in court.

[TweedleDee]

Unfortunately, I am only reciting what the authorities tell us so you may not agree with them but they are relevant.

 

In Kinch using the postal service is deemed served as in the paragraph highlighted in my earlier post where the post man is deemed to have served it.

 

In Van Haarlam, the spy did not take receipt of the notice.

 

Thus when you put those two authorities together, using postal service is a good way of serving even if there is no receipt of the notice if they can file a witness statement stating so. Remember that s 3 is separate from s 4 and that may not do your argument any favours but it is what the authorities tell us. You are focusing on s 4, but they are relying on s 3.

 

There are more authorities on this matter but I am sure you have already researched them.

 

Also regarding s 3, not having knowledge of the notice does not mean it has been not served (re-affirmed in Blunden para 26).

 

You can't read the authorities in isolation as each case is different thus you have to read them all together as each one is a piece of the jigsaw puzzle.

 

It all depends on the agency solicitors they use and if they are up to par with the authorities but on paper, they are right. Something you may not want to hear or agree with but it is what the authorities tell us.

 

If you are looking to differentiate your case from the authorities, you may need to look at actions which would nullify that such as an intention to hide that fact from you such as happened in Kinch (fraud).

 

On paper, the claimant does not need to produce the actual contract or deed of assignment to give you notice of assignment. As you stated, the dates (Stanley v English Fibres Industries Ltd (1899) / W F Harrison & Co Ltd v Burke and another (1956)) and the amount (W F Harrison & Co Ltd v Burke and another (1956)) needs to be accurate however if there is no date, it is not fatal to the NoA (Van Lynn Developments Ltd v Pelias Construction Co Ltd (formerly Jason Construction Co Ltd) (1969)).

 

In addition, there is no formal template or form for the NoA (Denney, Gasquet, and Metcalfe v Conklin (1912)).

 

I truly hope that the judge throws out the SD and if he/she does, you should be very happy with yourself as in theory they shouldn't.

[Eshezo]

I see your point and thanks for the additional case references, I'll look through them and post again after! At the moment what I'm looking for from the case is to have it accepted that its an equitable assignment rather than a statutory one perfected in law.

[Eshezo]

Hi, to update the thread, having just returned from court, the SD has been set aside.

 

The Claiments case failed on the statutory assignment of contract based on the assignment notice not being served.

 

The Claiment was relying on The Property Act S136(3) and the defendant on S136(4). The Claiment used the case of Kinch to try and say that service by normal post was sufficient, however in the same case it's very clear that S136(3) is a physical delivery or one that can be show to have been delivered, in other words if the service of a notice was not under S136(4) registered post then the although it would be acceptable to use another method it would need to be shown that whatever the method it was delivered.

 

The Claiment was put to strict proof of the delivery irrispective of the method and was unable to rely on even the witness statement because the notice of assignment was allegidly sent by the original finance company rather than that which it was assigned to.

 

So while a victory on one hand it still remains that the assignment of contract can still exist but in an equitable capacity and so would require the Claiment to join with the original contracting party to take action....who knows if they will or not.

 

I think the important thing here is for people not to rely 100% on S136(4) in the property act in isolation without having case authority (in particular Kinch) in preperation for any reference to S136(3).

 

Thanks TweedleDee for your input and case references which also helped in prior research.

[42man]

OP has started a new thread with an update on current action....

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?343783-PG-Assignment-SD-setaside-action-continuing-and-The-Property-Act-1925