claimforms - dual MBNA CARDS with disputed MBNA sec 75 claims **WON**

[ZENTRIX9]

Thanks for all your help Andy, really appreciate it and will post up tomorrow what happened.

[caro]

How did it go Zentrix?

[ZENTRIX9]

Went to court and the judge was really helpfull. The brief was trying to make me say things to incriminate myself but i am pretty sure that i shot him down

 

Came to the closing arguments for us both then the judge said that there were 4 things the brief said that he wasnt happy with. He said he didnt want to pass judgement today but would like us both to send in our arguments for the 4 points, he would then send out his ruling and 14 days later we would attend court for his judgement. Towards the end he said that he thought that I knew what I was talking about as I knew a lot of points I made about section 75 and that he knew I would have prefered a judgement today but thought that I would feel better if it was done properly. He also said that hopefully a deal could be struck between us.

 

I was happy how it went to be honest, I think I put my points across and examined their witness ok.

I will post up the 4 items that need to be addressed tomorrow, I think I will need a bit of help with them. The brief kept trying to say that the money was a gift, not supply only but supply and fit, that it didnt come under section 75 as I owned the company and I couldnt profit by making the claim.

Edited August 7, 2013 by citizenB

[AndyOrch]

" he knew I would have prefered a judgement today but thought that I would feel better if it was done properly. He also said that hopefully a deal could be struck between us."

 

Sound very favourable Zen and sounds like you gave it a good run....well done.

 

Post up your queries tomorrow and I will take a look.

 

Regards

 

Andy

[ZENTRIX9]

Cheers Andy, I felt really good to be honest 10.30 - 3.10 was a long time but I wasnt nervous at all, I felt really good and thought that I have good posative answers when I was cross examined. He tried his best to get me to admit to things but I wasnt having it.

I will post up tomorrow.

If all goes well and I get judgement I will make sure CAG gets a donation for all the help.

 

Oh, just remembered that the brief bought up the matter of the stay on the claim they had, saying that if I won it would be unfair for me not to pay them even would expect an offset of debts from both parties

[caro]

Sounds like you did well and the judge was very fair. Good work Zen.

[AndyOrch]

" Oh, just remembered that the brief bought up the matter of the stay on the claim they had, saying that if I won it would be unfair for me not to pay them even would expect an offset of debts from both parties "

 

 

Unfair of them not to honour your section 75 and issue a claim...but such is life.

[ZENTRIX9]

When he came in he said that he had read my bundle in full but glanced through theirs. Mine was thinner he said and theirs had a lot of paperwork already dealt with.

He asked if they had recieved my bundle and they sain no! I sent then an email copy 1 week before trial and a hard copy by courier!

I told him I got their skeletal argument 3pm friday afternoon by email and by post saturday. I also said I was up till 2am and up by 6am so I could get to court on time because of getting it late.

[ZENTRIX9]

Here are the 4 issues that the Judge had :-

 

1. Wether or not the payment of £xxxxx was made prematurely should be seen as voluntry so there is no cause of action on the contract.

2. Such payment not in sections 11 & 12 of the act

3. The position between me & the Company just before liquidation and wether the contract had expired by fluctuation of time or breach of goods to be delivered in reasonable time as contractual obligation.

4. Wether the company/bank rely on equitable principal so I dont profit from by own wrong to an order to avoid a contractual liability.

 

I had to write it down quickly so I didnt get every word perfect.

I have to exchange my views on the above by 4pm 16th august.

 

Any ideas.

Remember I was MD at the time 4 weeks after my father died but I made the claim after the company was put into liquidation. The company was put into liquidation approx 9 months after ordering.

There ar etwo sets of T&C that I sent them, Trade and Retail so they could differentiat ebetween the two, they say i only sent the retail one and that because it wasnt made and fitted in good time it isnt covered under s75. It says payment in full after fitting so they say the rest of payments are a gift. On the Trade T&C it states payment in full within 30 days of order, which all the payments were.

i will post them up tomorrow. I have noticed that on the Retail T&C it states "Failure to honour the contract within 12 months of the contract date will be deemed as cancellation of the contract by the purchaser and will incur a cancellation fee" which may address number 3 above

Edited August 6, 2013 by ZENTRIX9

[ZENTRIX9]

[ATTACH]45740[/ATTACH]

 

Here is the contract, the retail T&C and the Trade T&C, In this order.

[ZENTRIX9]

Anyone had a chance to have a look yet as I need to reply by Friday 4pm

[AndyOrch]

The T&Cs of your ex company Zen mean very little to me so I cant comment or tie the them to the 4 points you raise above.I would of thought you being the ex MD would be able?

 

Regards

 

Andy

[ZENTRIX9]

Ok Andy, I will post up my arguments for the 4 points, if you could advise on what I post I would be grateful.

[AndyOrch]

Ok Andy, I will post up my arguments for the 4 points, if you could advise on what I post I would be grateful.

 

That I will be able to advise on:wink:

[ZENTRIX9]

Here is my answer to the 4 points that the judge wants us both to send by 4pm 16/8/2013

 

1. Whether or not the payment of £xxxxx was made prematurely should be seen as voluntary so there is no cause of action on the contract.

2. Such payment not in sections 11 & 12 of the act

3. The position between the Defendant & the Company just before liquidation and whether the contract had expired by fluctuation of time or breach of goods to be delivered in reasonable time as contractual obligation.

4. Whether the company/bank rely on equitable principal so I don’t profit from by own wrong to an order to avoid a contractual liability.

 

1. The Claimant claims that the payment was made voluntary. The Claimant base their defense on the point that the payment was made before the conservatory was fitted and base this on the "Retail Terms and conditions". They are wrong, the conservatory was never to be fitted by the company, it was to be personally fitted by the defendant in his own time, independently from the company where it was purchased. This was a "Trade Sale" denoted by the "Trade Terms and conditions"(Page 339). Payment was to be made in full within 30 days, which it was. The contract states "Pro-forma", it mentions nothing about fitting, it has a drawing of the frames and roof diagram. The contract does not list any power points, window boards or electric fan, all of these items would have been selected if the conservatory would have been supplied and fitted by the company and details of internal finishing would have been added to the contract.

Like most contracts, if it is not listed on the contract you are not entitled to it.

If you buy a car and want alloy wheels as an extra it will be listed on the contract. If the car is delivered without alloy wheels and you complain and it is not written on the contract you will have to pay extra for them. The same applies to this contract, fitting is not listed so it is not included.

The “Retail Terms and Conditions” (Page 290) that the Claimant relies upon, Clause 3 at the end of the paragraph states:-

“Pro-forma invoices must be paid in full before any work commences”. The contract states “Pro-Forma” on it and all monies were paid before any work was to have commenced. This being the case, no monies were paid prematurely or as a gift.

 

2. The “Retail Terms and Conditions” (Page 290) that the Claimant relies upon, Clause 3 at the end of the paragraph states:-

“Pro-forma invoices must be paid in full before any work commences”. The contract states “Pro-Forma” on it and all monies were paid before any work was to have commenced. The defendant states that the Trade Terms and Conditions (Page 339) set out that payment terms, payment should be made in full within 30 days of ordering. Payments were made in full within 30 days so payments were not made prematurely so sections 11 and 12 do not apply.

The “Retail Terms and Conditions” (Page 290) that the Claimant relies upon, Clause 3 at the end of the paragraph states:-

“Pro-forma invoices must be paid in full before any work commences”. The contract states “Pro-Forma” on it and all monies were paid before any work was to have commenced. This being the case, no monies were paid prematurely or as a gift, payments were not made prematurely so sections 11 and 12 do not apply.

 

3. The position between me & the Company just before liquidation was the same as when I purchased the conservatory.

I was a consumer buying goods personally from the company. I cannot find anything in the Consumer Credit Act 1974 that states that you are not covered by the said act if you purchase goods from a company that you are a Director and work for. The Claimant states that the contract had expired by fluctuation of time or breach of goods to be delivered in reasonable time as contractual obligation. The Claimant insists that the Terms and conditions relevant to the contract are the Retail T&C (Page 290). At the end of clause one it states:-

 

"Failure to honor the contract within 12 months of the contract date will be deemed as cancellation of the contract by the purchaser and will incur a cancellation fee"

This gives a period of 12 months for the contract to expire which is a reasonable time, the company was put into liquidation approx 9 months after the contract date so the 12 month period had not been reached so the contract could not have expired by fluctuation of time or in breach of the goods to be delivered in a reasonable time.

 

4. The Defendant has done no wrong the Claimant has no proof that the Defendant has done any wrong, all their so called evidence is hearsay. The Defendant paid the company in accordance with both Retail and Trade Terms and Conditions and when the company was put into liquidation the company was signed over to the liquidators. The Claimant needs to prove beyond a shadow of doubt that the Defendant ordered the conservatory to "inject cash" into the business (as they imply), if they cannot then it cannot be said that the Defendant did profit from his own wrong to avoid contractual liability. The defendant does not think that the Claimant has produced any hard evidence to backup their accusation, only hearsay.

Edited August 16, 2013 by ZENTRIX9

[ZENTRIX9]

Just sent the above to the court by email, is this acceptable? I used the email address I was given to send a document by email while I attended the trial 2 weeks ago. Or is there another I should use.

[ZENTRIX9]

Well, I sorted everything out to send to court, done that by email.

 

Also had to send a copy to Optima as well.

 

The letter from the court said that I had to send it all in to court and to the claimant by 4pm.

Sent it to Optima to the person I am supposed to deal with and it bounced back saying they were not available and to send it to some other person.

 

Good job I checked as this happened last time and I almost missed the deadline.

 

I think this may be a tactic that they use to their advantage so you miss the court deadline and fail to comply with the court order.

 

However, I have not recieved anything by email, post or carrier pidgeon!

so they have not complied with the court order in full,

 

I will checkout with the court on Monday to see if they have sent their letter to the judge.

If they havent sent anything at all then they havent complied with a court order

 

Do you think that the judge will then side with me because they havent complied?

[ZENTRIX9]

I got a delivery today, the info from Optima that I should have had 4 days ago.

I rang the court and they said that they had received the info from Optima in time.

 

I have sent an email to the court saying that Optima have not complied with the court order because they didnt send me their info before the date and time on the court order and have asked the court to strike out their arguments

. I wonder if the judge will do so?

[caro]

I very much doubt it zentrix, even if you'd sent in a proper application and fee to do so. No harm trying though.

[AndyOrch]

Agreed Caro but the matter must be brought to the courts attention at the first opportunity.....the claimant is deliberately frustrating matters and trying to get an advantage by sending them late.....will affect costs!!!!

[caro]

True Andy.

[ZENTRIX9]

Well its Judgement Day tomorrow so will post up how it goes.

 

Any tips on what to do if I lose? or if I win what can I claim or ask for?

[caro]

Well its Judgement Day tomorrow so will post up how it goes.

 

Any tips on what to do if I lose? Go to the pub and drown your sorrows

 

or if I win Go to the pub and celebrate

 

what can I claim or ask for?

 

 

I'll leave others to give you sensible answers!!

 

Good luck!!

[ZENTRIX9]

Cheers Caro, if I lose I have 4 bottles of red wine waiting, if I win I will make sure a donation is paid to CAG for all its help.

[caro]

Have you got all your paperwork in order so that you can easily find anything you need to refer to?