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Everlasting Boilers Claimform - ***Claim Struck Out ***Now a 3rd and 4th Claim


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When the abuse of process was mentioned he said it could be compared to a Landlord / Tennant scenario where the landlord is after evicting the Tennant and sometimes it goes to court again and again and that isnt an abuse of process

 

Even the Claimant said they didnt have the correct paperwork last time (Ie send me a formal default) but he still allowed it to be looked at again

When i mentioned Res Judicata his answer was that because the case didnt have the correct paperwork before it was only struck out on because of the no default notice sent to me and because no evidence of any kind was given it dosnt count (Even though i will be relying on the same evidence as last time)

Also the Claiment stated that "as per the judges order the case has been dismissed and the arrears are to date are to be waivered in an attempt to resolve this"

THIS WAS NOT THE CASE AND THE JUDGE NEVER SAID THAT Todays judge said that if the claimant has said that and it isnt true (Which is isnt) then this needs picking up ASAP

So i presume it is just a case of waiting to see what drops thru my letterbpx from them next

 

should the claimant Amend the POC i presume i can use the Res Judicata again if they are similar?

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" When the abuse of process was mentioned he said it could be compared to a Landlord / Tennant scenario where the landlord is after evicting the Tennant and sometimes it goes to court again and again and that isnt an abuse of process "

:???:

 

So this Judge thinks there are different levels of strike out...some final and some that can be reconsidered after the claimant has had time to correct their claim:-)

 

Res Judicata

 

A Latin term meaning "a matter judged". This doctrine prevents a party from re-litigating any claim or defence already litigated. The doctrine is meant to ensure the finality of judgments and conserve judicial resources by protecting litigants from multiple litigation involving the same claims or issues.

 

 

You can do a mix of defence 1/2 and 3

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He asked the Claimant if the New claim was for any Monies due before 3/11/2017 (When last claim was struck out) to which they said "NO"

They he asked if a default letter had been sent and they said Yes dated 8-1-18 and he made sure to make it clear to them that the New Amended POC should state this!

Im in shock to be honest as it dosnt seem very fair at all like you say it is on the same agreement number same boiler same boiler serial number and same Refrence number

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" He asked the Claimant if the New claim was for any Monies due before 3/11/2017 (When last claim was struck out) to which they said "NO" "

 

So you had the boiler fitted after 3/11/2017 ? :-)

 

The particulars are quite clear...same as claims 1/2.....they have simply added arrears and service contracts to pad it out and look different...but its still the same particulars of claim.

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Just what is your end game / desired outcome, though?

 

If you are keeping the boiler system, will the supplier have been paid a reasonable amount (“quantum meruit”), and, if not : how will you show is is just and equitable for you to keep the boiler?

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Well what i was going to do after the previous claim was Struck out was to go get a boiler properly fitted to both gas safe standards and also Building regulations

This boiler has been more problems than the one it replaced

 

the reason we went for this one was because we were told that it would be no bother and that we would never have to pay any extras for repairs while in truth they didnt even fit the damn thing properly in the first place and when i query this they just go straight down the court route

they are wanting £3859 for a boiler that will cost £1159

 

theres been no mention yet of the breach of there own contract for not completing the fitting or any services and the general way they have behaved the agreement was made up of part Maintanence costs and part costs for the boiler all rolled into one amount

 

I have found out today that they have even put a charge on my property 3 months after fitting which i wasnt aware of !

 

After the threats of them gaining access by saying they are coming to do work on it and all the other things (Like sending a High court enforcment officer after the first discontinued case) have left a very sour taste in my mouth and for that i no longer want to deal with them

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So, what would your proposed solution be?

 

That they remove the boiler (and at no cost to you), or that they pay for someone else to remove the boiler, or

that the boiler stays?

 

If the boiler stays, who is to get it to an adequate standard, and who is to pay for that??

 

You need to avoid looking like you are being unjustly enriched .....

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" I have found out today that they have even put a charge on my property 3 months after fitting which i wasnt aware of ! "

 

How did they manage that without a judgment ?

We could do with some help from you.

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I said many posts ago about enrichment and I don't think the op understands that.

The original claim you defended and won. Quite rightly too.

 

Now you either let them put right what was wrong..... And then pay

Or

Let them remove the boiler leaving you in a position you were before and you get another company to fit a boiler..... And pay.

 

 

At the moment you have a boiler albeit not to standard and paid nothing. That's enrichment

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I appreciate what you are saying but i have a boiler that is not fitter properly or working properly

Fitted not to standard

My previous boiler albeit very old worked perfectly i just want this sorted out fitted correctly and working properly like i was promised

 

I Have this morning recieved the New POC Am I OK to put it here Sometime over the weekend to me it still reads similar to the other on and some advice would be appreciated

This is still what i cant understand WHY is this Not Classed As Res Judicata

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I appreciate what you are saying but i have a boiler that is not fitter properly or working properly

Fitted not to standard

My previous boiler albeit very old worked perfectly i just want this sorted out fitted correctly and working properly like i was promised

 

 

Then put to them (in mediation, or as a formal offer) that the boiler gets removed, by them, at their cost.

If you don't trust them to do it, agree with them that a third party can do it (perhaps by a new firm installing a new boiler), and agree who pays what beforehand.

Once that has been done, each side drops any claim (unless you believe they then owe you money for money you have already paid?)

 

 

Alternatively, get the existing boiler brought up to scratch. Then you are going to have to settle with the original firm, for what the boiler would have cost if they'd installed it correctly, less what it cost to fix the faulty installation.

How else do you intend to avoid 'enrichment'? (and 'enrichment' WILL give the original firm a reasonable prospect of a successful claim, unless you get lucky with 'res judicata', as it is equitable that you aren't unjustly enriched ......)

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appreciate what you are saying but i have a boiler that is not fitter properly or working properly

Fitted not to standard

 

 

 

Then let them ( or a third party as suggested above) remove it.

You cant have it both ways.

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Id be quite happy for a third party to do that if im honest get rid of it

We tried mediation they just want costs for boiler and not to put it right

 

Below is the amended POC which has come today

 

Previous strike out was on 3-11-2017 and the first letter i got from them was on 8-11-2017 asking to restart my Direct Debit

 

ALso the default notice (If it is valid Is dated 8-1-2018 NOT 26th January as stated in new poc

 

PARTICULARS OF CLAIM

 

1. xxxxx and xxxxx (defendant’s) entered into a Boiler Replacement Agreement (BRA) with A Shade Greener (Boilers) LLP (Claimant) on the 29th November 2013. See Exhibit 1 (BRA).

 

2. Under the Conditional Sale Agreement of the BRA, specially Clause 10, it details the monthly prices for the agreement:

“The customer shall make 169 monthly repayments to the Company being 3 monthly payments in the sum of £22.95 commencing immediately after installation of the Equipment, follows by 21 monthly payments in the sum of £45.89 per month, followed by 144 monthly payments in the sum of £47.27 escalating at 3% per annum after the third anniversary of the date of installation”. See Exhibit 1 (BRA).

 

3. Along with this information under the Conditional Sale agreement it also details the total amount payable under Clause 6 and 8, being £8,832.37 (£4,109.89 for the Equipment and £4,722.48 for the Maintenance and Service). See Exhibit 1 (BRA).

 

4. The goods supplied under the BRA by the claimant are detailed under Section 1 of “Definitions”, Clause 5 of the Conditional Sale agreement and under Section 6 of the “Pre-Contract Credit Information”.

The goods detailed as being:

“A Grade ‘A’ condensing central heating boiler with parts and components necessary for the functioning of the boiler”. See Exhibit 1 (BRA).

 

5. The services provided by the Claimant are detailed between Clause 7 and 13 within Schedule 1 of the BRA – “The Company’s Responsibilities and Obligations”. See Exhibit 1 (BRA).

 

6. Upon the Defendant’s breaching the Conditional Sale Agreement of the BRA, specifically Clause 12 (Missing two or more monthly payments), the Claimant issued a formal default notice to the Defendant’s dated 26th January 2018, the Defendant’s received this as confirmed by the Royal Mail Tracking information. See Exhibit 2 (Default Notice).

 

7. The Default notice issued clearly state’s the defaulted payments commenced in November 2017. This is due to the previous claim (...) being struck out resulting in all previous arrears/charges being waivered. See Exhibit 3 (Court Order).

 

8. Following the previous claim (.....) being struck out the Claimant wrote to the Defendant’s in order to recommence the monthly payments and arrange an annual service of the equipment, this letter was sent on the 8th November 2017 and was received by the Defendant’s on the 10th November 2017 as per the Royal Mail Tracking information. See Exhibit 4 (Letter re previous claim).

 

9. The claim amount consists of the “Option to purchase” price of the BRA which currently stands at £3,762 inclusive of VAT which can be found under Schedule 3 of the BRA. There is then a £60.00 administration charge, the £185.00 court costs and £37.00 of VAT for the court costs which the Claimant is charged added to this making the total claim £4,044.00. See Exhibit 1 (BRA).

 

i now have

 

28 days from 8th May to :-

 

By 4pm 28 days the Defendant must file with the court and serve on the claiment the amended defence (And counterclaim) Which meets the following requirments

 

A) is in writing preferably typed and consists of numbered paragraphs;

 

B) it sets out concicisely all the facts the defendant relies upon ;

 

C) It responds in turn to each of the facts contained in the claimants amended POC stating whether each fact is admitted , Denied or neither admitted or denied by the defendant D)Is verified by a statement of truth

 

Thanks in advance

 

B y

 

10.

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So you would have paid “£8,832.37 (£4,109.89 for the Equipment and £4,722.48 for the Maintenance and Service).”?

 

And they are now seeking £4,044?

 

The difference is £4,788.37.

If you can get the boiler brought up to standard, and a service / maintenance plan (until 29th November 2027) for £4,788.37 (less anything you have already paid ....), then settle.

If not, then defend on those grounds (and any others you can come up with!)

 

That way you end up with what you contracted for (the boiler you wanted, correctly installed and then serviced / maintained), for the price you agreed- albeit that some of that price gets paid to the original firm, and some to a different installer / maintainer.

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This is what has Showed up on The registration At the Land Registry

This says that the application was completed on 20th March 2014 (Boiler was fitted on 5th Dec 2013) I have only come across this because some one told me to check i was unaware of this

What is it?

 

Id be quite happy for them to come take the boiler out (It dosnt belong to me until after the 14 year term when it is paid for)

Ive a boiler that hasnt been serviced is always losing pressure and going off and one that isnt fitted to Building regs or Gas safe Regs

 

I have limited time to reply to the above amended POC so any help appreciated

 

Thanks in advance

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They have secured their credit (the agreement) against your home...similar to a secured loan...check your T&Cs of the agreement and see if you agreed to this with your signature.

 

Did you not receive notification from TLR re Interim Charging Order ?

 

 

Andy

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JUst had a good read of the T&C and yes it does say they will do this (Ive also been told that the FCA have said that they are required to do affordability checks and not secure on my house like they have done )

At no time was i told they would do this

 

NO i never recieved anything from TLR it was in the Evidence pack that ASG sent me for the last Struck out case

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Have we got the T&Cs uploaded to this thread ?

 

 

Andy

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JUst had a good read of the T&C and yes it does say they will do this

..........

 

At no time was i told they would do this

 

 

 

Did you get the T's and C's before signing the contract?

Did you read the T's and C's before signing the contract?

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Was you drunk when you signed the agreement...9K for a boiler :-)

 

Conditional Sale Agreement :!:

We could do with some help from you.

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But, but, it includes boiler service and everything .... and after many years (12?) it becomes the householder’s

(Just in time for it to become obsolete / unable to be repaired, but only after the service agreement has expired too.....)

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But seriously.....I wasn't aware it was a conditional sale agreement or the amounts involved...no wonder you want shot of it.

 

Lets review were we are and hopefully get a draft for next week

We could do with some help from you.

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  • dx100uk changed the title to Everlasting Boilers Claimform - ***Claim Struck Out ***Now a 3rd and 4th Claim
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