Small Claims Court Action against builder

[abedegno]

Hi,

 

Looks like the bailiffs are unable to attend the warehouse unit where the debtor stores his plant and machinery, a separate court order would be needed and they would discuss next steps after a second attendance at his home/registered address.

 

I have also learned that 5 days ago the debtor has created a new Ltd company, but not yet tried to wind the existing one up - I fear I am a not going to succeed here.

 

My only option might be to bring court proceeding again, but against the individual. The quote, invoices and bank account details do not show a company name or registration number. I know this means paying court fees again, but the debtor has assets (including two houses). Is this possible?

 

Thanks

 

Abe

[BazzaS]

If you bring proceedings against the individual: expect him to refer the court to the previous judgment against the company.

He'll note that the company is a separate legal personality, and you'll have to "pierce the corporate veil"

 

If you argued to the court that the company was liable, how now are you going to say "oops, my mistake, it wasn't the company, it was him".

 

Who was any contract with? Whose account was the payment to?

[abedegno]

Hi,

 

Nothing was argued in court as it was a default judgement.

 

Payment was to a business bank account in the individual's name.

[abedegno]

Hi,

 

Just as an update, I'm still exploring addition means of enforcement without having the issue a new moneyclaim:

- I've issued a third party debt order against a corporate customer - property developer regarding some work recently completed by the builder which he kindly advertised on his facebook page. As this would likely be paid on 30/60 day net it's likely I am in time to enforce this.

- Having established the warehouse unit where the builder keeps the plant that he hires as part of his business the HCEO officers have agreed to attempt enforcement here as a trading premises.

 

Thanks

 

Abe

[abedegno]

Hi,

 

An update:

- I applied for the third party debt order form to the court - looks like they 'had a lack of judges due to the holidays' so it took them nearly 4 weeks to do, not particularly impressed with the court and as a result it was too late to 'intercept' payment before it was made to.

- The builder had gotten wind that HCEO were going to attend his warehouse unit and has moved everything linking him with the location.

 

So I'm unsure what I can do at this stage:

- Do I give up, I don't think I have any enforcement options left open to me?

- Do I attempt a money claim order against the owner personally, citing the invoice/quote/bank account details being in a personal name rather than business?

 

Thanks

 

Abe

[king12345]

You should have sued him as a sole trader.

I'm surprised he didn't defend by saying that there was no contract between you and his business.

Looks like you'll have to start again, unless you can find the company assets and they let the hceo take them (unlikely).

[abedegno]

I wish I had sued him as a sole trader - the Ltd company had a plant hire business assets, so a lesson learned.

 

He didn't defend, he's set up a new Ltd company and presumably transferred assets so by not defending seems to have been the right course of action for him whilst I wasted money.

 

I don't mind starting again, question is whether I legally can do - he may point to the CCJ against his now defunct Ltd company has defended?

[steampowered]

It sounds to me like issuing a new claim against the individual might be the best way to go - if you can back it up.

 

It sounds like there is a judgment to be made as to whether a claim should be made against an individual or a company. It isn't a black-or-white issue.

 

You need to weigh up the information you have which indicates that the contract was with the company; vs the information you have which indicates a contract was with the individual. A judge would have to weigh up both sides to determine who a reasonable person would conclude your contract was with.

 

You say that there was no company name on your invoices and that money was paid to an account in the personal name of this individual. That helps make an argument that you were contracting with the individual rather than with his company. The fact that you started a CCJ against the company first would help the builder make an argument the other way.

 

Are there any significant facts that might move the needle? After all, you sued the company to start with, you must have got the company's details from somewhere? Do you have any formal paperwork with the company's name on it?

[abedegno]

I got the details from Company House.

The builder has a Facebook page and website which showed the Ltd company name

[steampowered]

Unless there was anything at the time you entered into an agreement with this builder to say that he was contracting through a company, then I'd think you have a decent case for suing him personally. If he wants to contract through a company he has to tell you at the outset, he can't change the contracting party after the contract has been entered into.

[abedegno]

Sounds like it's worth a punt, I'll send him a LBA and he can ignore it again and get a default judgement, or I get my day in court...

[abedegno]

Just a follow up to this - the Third Party Debt Order didn't get challenged by the property developer and the interim order was made final by the DJ.

 

The property developed was given 14 days to pay myself - that deadline expired yesterday (20th July) so they appear to be ignoring court correspondence.

 

Do I now have any recourse against the third party - would I need to ask the court to begin contempt proceeding or some other action?

 

Thanks

 

Abe

[steampowered]

To be clear - you have a third party debt order, ordering the property developer to pay you?

 

If that is the case, and I could be wrong, then I would have thought you should be able to enforce the order in the same way as any other court judgment. Perhaps speak to a HCEO firm to see if it is something they can enforce?

[abedegno]

Hi - that's correct a final third party debt order instructing the property developer who had hired my builder (and would have owed money to them).

 

That's what I'm not sure about, whether the I can now enforce against the Third Party as a TPDO is a means of enforcement itself. I suspect not as I have no cause of action against them, the court does.

I think my only recourse is to ask the court to initiate contempt proceeding - but I'm unsure how I do that.

[steampowered]

The TPDO is enforceable in its own right. It is a court order requiring the third party to pay you (rather than the defendant). You don't need a separate cause of action.

 

I would try to find out if bailiffs are able to enforce the TPDO directly.

 

Contempt proceedings are long, complicated and fall outside the small claims track costs regime. In short contempt proceedings are not a good idea.

[abedegno]

Hi Steampowered, by bailiffs do you mean County Court Bailiffs, HCEO or both?

 

Thanks

[steampowered]

Both. HCEO should be able to tell you pretty quickly what they need to enforce a TPDO if you give them a ring.

[abedegno]

I already have HCEO engaged to try to recover assets from the judgement debtor. They were a bit slow and he was able to hide/move them, but that's another story...

I will ask the HCEO and see what they say.

 

Thanks

 

Abe

[steampowered]

In this case the HCEO would be enforcing the TPDO against the third party which was ordered to pay you by the TPDO. Not against the judgment debtor directly.

 

Hopefully the third party is less likely to hide/move their assets.

[abedegno]

Hi,

 

So I contacted the HCEO, they advised that they can only enforce against the entity named on the Writ of Control and as such, would be unable to take enforcement action against the third party named on the Third party debt order.

 

To enforce against the third party it means going back to court, more expense, and I would need to prove that the property developer acted unreasonably by receiving and defying the order.

[steampowered]

Can you get a new warrant of control against the third party, based on the TPDO? If so, that is the easiest route.

 

I also wonder if it is worth writing to the third party with a copy of the order, explaining what it is and asking for their cooperation (as otherwise they might find themselves in court too).

 

You might also think about whether you need to apply to convert the interim TPDO into a final TPDO.

 

It may even be worth using a solicitor just for the enforcement of your judgment. Some should offer a reasonable fixed fee for handling enforcement of the TPDO against the relevant individual.

[abedegno]

Hi,

 

I cannot get a warrant of control on the basis of a TPDO - I have to first get a judgement order, which means going back to court.

 

I will try writing a letter to the Third Party and see how I get on.

[abedegno]

Hi,

 

I've not quite given up here....

The builder has created a new Ltd company (similar to the old one I have a CCJ against) and is continuing the use the original trading name.

The old Ltd company now has overdue accounts and has received the first notice to strike off from Companies House for non-filing.

 

From what I understand, I may be able to make use of section 216 and section 2017 of the Insolvency Act which specifically prohibits what he is doing (using a name similar to the old Ltd company and trading style) which is a criminal offence, and would make the him (the director) personal liable.

 

Am I correct in my understanding, does anyone understand this area?

 

Thanks

 

Abe

[BazzaS]

“Similar” is permitted.

Identical isn’t allowable.

 

Have you opposed the strike-off on the grounds of the unsettled judgment?

[abedegno]

Trading name is identical.

 

I’ve not yet written to companies house, I assume I should do?