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    • I unexpectedly had a couple of hours free this afternoon and thought I would have a bash at helping simeon drafting his counterclaim.  Everybody please feel free to comment on and - hopefully improve it!  (In particular I am not sure if I've got the terminology correct vis a vis counterclaimant and defendant - so that may need correcting).   I am aware that Andyorch and BankFodder often stress the importance of keeping POCs to the bare minimum so as not to give away your case too much.  Whether I've given too much detail - or not enough - here, I don't know.  As I say, it's free to be pulled apart, but simeon seems to have nothing else.   Paras 1 - 16 (in black typeface) are simply a precis based on what has gone before and I've used them to put the counterclaim in context. Paras 17 - 19 (in red typeface) are simply my attempt to provide a basis for simeon's counterclaim.   At the end of the day this is simeon's documant - nobody else's.  simeon has to satisfy himself that it is both accurate and true, and also says what he wants it to say.  He will also have to order and sort out any attachments.  As I said earlier, I'm NOT giving legal advice!   Here goes... ===================================================================================================== Counterclaim   1.      The defendant agreed to undertake building work (Project 1) at the counterclaimant’s property in relation to 3 specific areas of work for an agreed price of £4300.  The work was:   a. To underpin the bay window at the property, b. To replace and repair a previously removed chimney breast and, c. To install a new beam to the patio door.     2.      It was agreed that Project 1 was to be carried out under the instructions of a structural engineer engaged by the counterclaimant and that the defendant’s work would be as a result of instructions received following the structural engineer's assessment of the property.   3.      Between June and July in 2020 the counterclaimant provided the defendant with a full copy of the structural engineer's report which detailed instructions to the defendant for the works to be carried out.   4.      It was agreed between the parties that the works would commence on 13 August 2020.     5.      It was agreed between the parties that payments for Project 1 would be made in three instalments. The first payment would be made at the start of the defendant's work. The second payment would be paid at the halfway point of the defendant's work. The final payment would be made on completion of the total works.   6.      The defendant commenced work on 13 August 2020 and the first instalment due was paid.     7.      On 24 August 2020 the defendant asked the counterclaimant to arrange an inspection of his work by the Building Control Inspector.  The defendant also stated that Project 1 was approaching mid-way and the counterclaimant paid the second instalment due.   8.      The Building Inspector arrived to inspect the defendant’s work but the defendant was absent.  The inspector was obviously very displeased by the standard of the defendant's work.  The inspector spoke to the defendant by telephone, asking him why he was absent and interrogating him about the work he had done.  The inspector then gave him some instructions over the telephone and also left a list of instructions with the counterclaimant to be passed on to the builder.  The building inspector then said he would be getting in touch with the counterclaimant’s structural engineer with his findings and the counterclaimant should hear from the engineer soon.   9.      The counterclaimant passed on the Building Inspector’s instructions to the defendant who agreed to follow them.   10.  The structural engineer visited and recommended piling to complete the underpinning for Project 1.  The defendant explained that he could not undertake this work. The structural engineer then suggested an alternative company to the counterclaimant to do the necessary work and this company was engaged by the counterclaimant to complete the necessary piling at an additional cost to the counterclaimant of £3300. (See receipt at Attachment1).     11.  The defendant asked if the counterclaimant needed any more work to be done and, despite the problems encountered on Project1, the counterclaimant agreed on 7 September 2020 to have more work done (Project 2) at an agreed price of £2580 and on similar payment terms to Project 1.     12.  As work commenced on Project 2 and was continued on the remaining work for Project 1, the counterclaimant had occasion to make several complaints to the defendant regarding the standard of his work.   13.   Barely a week after starting on Project 2, the defendant demanded payment for that work.  After a period of negotiation the counterclaimant agreed to pay him £2000 on 18 August 2020.    14.  The counterclaimant subsequently paid the defendant  £1500 in cash.  Both parties agreed that this left a balance outstanding on Project 2 of £1080.     15.  It later came to the counterclaimant’s attention that the defendant had removed material (including a steel beam) from the counterclaimant’s property that the counterclaimant suspects either belonged to him or had been paid for by him in connection with Project 1.  When challenged the defendant admitted he had done this.  The counterclaimant has included the value of this material in his counterclaim detailed below.   16.    On 21 September 2020 the counterclaimant highlighted and sent a snagging list to the defendant (Attachment 2).  Over a month later the defendant sent an employee to attend to this work.  It was not carried out satisfactorily and resulted in an updated snagging list being sent to the claimant (Attachment 3).  All of this snagging work remains undone by the defendant.     17.  Apart from the outstanding snagging work referred to in para 16 above, the defendant also left other work from Projects 1 and 2 uncompleted.  That work which was not completed is listed at Attachment 4.   18.  During the course of carrying out work on Projects 1 and 2 the defendant also negligently caused substantial damage to the counterclaimant’s property (as itemised in Attachment 5) by not executing the work with the skill expected of a reasonable tradesman.   19.  The counterclaimant seeks an order from the court directing the defendant to pay to the counterclaimant the sum of £nnnnnnn {Simeon - put in the actual total amount here} in respect of:   (a)   the cost of the piling referred to in para 10 above which the defendant could not undertake and another contractor had to be paid to complete; (b)   the cost of completing work the defendant had left undone from Projects 1 and 2; (c)   the cost of remedial work to put right the damage negligently caused by the defendant and referred to in para 18 above; and (d)    the cost of the steel beam referred to in para 15 above.   A receipt in respect of item (a) - see Attachment 1 - and two priced quotes in respect of items (b) and (c) - see Attachments 6 and 7 - are attached in support of this counterclaim.     =================================================================================================================   What I'm not entirely clear about are two points.   First, it's not 100% clear to me whether simeon can properly claim the £3300 in paras 10 and 19(a) or not.  What I mean is, simeon is arguing that this work required by his structural engineer was always within the agreed scope of Project 1.  But it's not clear to me if it was within scope or whether it was entirely new and unforeseen work.  As I see it simeon can only counterclaim this amount from the builder if it had already been incuded in Project 1.   Second, the basis of the counterclaim still seems extraordinarily thin to me.  Is it sufficient at this stage just to allege that the builder caused any damage negligently and is therefore liable to pay to put it right.   That's it from me I think...    
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CLI/IRD Claimform - Australian Visa Fees relating to potential Employment


Ginni1062
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Yes anything you have connected to the new evidence they have disclosed...shut it down.

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Am I ok in stating that discussions were made regarding how the money would be paid back but this was just a discussion via email and nothing agreed or signed for and that Dongara didn't even reply to my email with regards to my options?

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Yes if you feel a small intro will assist and improve your response by all means....but try not to add anything they can use against you or assist them in their claim.

 

At the end of the day if they dont have a signed agreed consent agreement...they will struggle to get this over the line.

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See point 2 of the court order ......." the parties shall send each other "

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Yes if you have their address email or if you have previously corresponded electronically 

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So now you submit your statement in response to the above...file and serve no later than Wed 3rd Nov 4.00pm.

 

Have you prepared anything ?

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Hiya Andy,

 

Sorry I've been working nights, yes I submitted to CLI and the court this morning my witness statement with a couple of exhibits, along with an introduction to defend my case against what CLI have put in their 2nd witness statement. 🤞

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Excellent ....didn't want you to miss the deadline. If you would upload a copy here for reference then we can refer to it if necessary.

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  • 2 weeks later...

Hi guys,

 

A quick update, I have just been to the hearing resolution and again it couldn't be resolved so it's going to county court for a face to face. 

 

We have confirmed that the Dongara haven't a leg to stand on with the money and contract with the agreement for fees etc but the issue is now down to the emails and me owing Dongara the money.

 

Also, CLI said that Dongara didn't sign the immigration agents agreement so, I questioned why do I owe them money then as if they didn't sign the agreement surely they didn't pay it so why do I owe them money?

 

Also, if I haven't signed anything or there wasn't an agreement between me and Dongara how can I owe them the money? Also in the emails they never confirmed arrangements for the money to be paid back it was literally one email saying that I could pay $200 a week back. I then replied with potentially I could pay with the sale of my house? How does this stand me as after this email they never responded or acknowledged this to agree or disagree it was only a week later that I received the immigration agents agreement with the fees on and stating that the sponser was 100% liable. 

 

Surely for me to owe somebody money I would have needed to sign some sort of agreement?

 

TIA,

Ginni

 

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On 03/11/2021 at 16:37, Andyorch said:

Excellent ....didn't want you to miss the deadline. If you would upload a copy here for reference then we can refer to it if necessary.

 

Still waiting.

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  • 2 weeks later...

Received this letter off the courts for the final hearing in person for the 16/02/2022 🙄

 

Also, I'm just checking but I thought at the beginning it were discussed on here that CLI weren't eligible to take claims to court?

 

I'm so nervous now as the judge on the resolution hearing stated at the end "she finds it difficult how this case is going to be defend but it won't be me being the judge on the day" was that aimed at me?

 

TIA Ginni.

imgtopdf_2811211845004.pdf.pdf

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The Judge at the previous hearing was possibly commenting that you had entered into a process of moving to Australia to work with Dongara and as part of that process it would be necessary to apply for a work visa.  And you had agreed to repay them out of wages when you started working for them.  The fact that you did not actually start working for them, does not mean you are not liable to repay Dongara.

 

Suggest that you look at every communication you had with Dongara or with the visa application company where the issue of fee repayment is mentioned. 

 

Did you tell Dongara they could proceed with visa application process  on the understanding you would repay them ?    If you did, is the main point of your defence that repayment was subject to you starting work with them and the fact that you did not start working with them, means you are not liable ?

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This is it, they was only 1 email stating that if I didn't have the funds then they would pay it for me and then I could pay it backat $200 a week. I replied with potentially this could come from the sale of my house. I then got no reply as to confirm anything I just received an email from the visa agent with an agreement that stated the sponser is 100% liable for the funds.  Ok the funds were probably between the visa agent and Dongara but what I don't get is they were no agreement between me and Dongara in regards to oweing them money etc. They have said in there previous witness statement for CLI that we discussed that even if the visa didn't go through I would still owe them the money. (There isn't any evidence of this) Seriously do you think I would of gone ahead with it if this was the case? (I wouldn't of risked that)

 

I just don't get how no agreement has been agreed or signed and 1 email that slightly discussed it to which I replied and didn't get a response from is me entering an agreement for the money?

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There is no where in writing where it states I would pay them back when I started work but this is what Dongara said to me in person as I met the HR women in the UK when she visited and we discussed this. That's why I mentioned the option of when I sell my house so I could potentially pay them from the sale of my house when I start work as we discussed in person. If we apparently agreed $200 a week why hadn't I started paying this back straight away and why did they wait for me to say I'm not starting work untill they asked for the money. (Because we discussed I person when I started work they wanted to take $200 a week from my salary).

 

Also, the question has never been raised as to why I didn't start work? Maybe I should put this in my next witness statement? So I flew out to Australia and worked for Dongara for a week (all paid for by myself) the health and safety were non existent and I worked with no safety wear (boots or mask bare in mind this were fibreglass) I were told climb on top of boat roofs with no harness and just a step ladder that wasn't attached to anything. The manager didn't once come to see me and see how I were getting on for the full week so I didn't feel welcome at all. The job was not carbon fibre which I were told and it was fibreglass. It was mostly wood work which wasnt my skillset so I were kind of worried this wasn't the job for me, so I asked a couple of the employees who were not Australian residents and they told me of you couldn't do the job when I arrived in Australia that the manager would shout at me and dock my wage like he had with them in the past and they adviced me to not leave my job in the UK for the one in Australia. This were a big shock to me and they were no way I was going to sell up and take my family of 3 children to the other side of the world for a job opportunity like this. So when I arrived back to the UK I emailed  Dongara telling them about my decision to not follow the job opportunity through. 

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I think the communication where you are talking about selling your house and repaying them needs to be explained, by putting this into a wider context. 

 

So you might want to explain that working for Dongara was not certain at the time of them contracting with the visa company and you had not agreed to pay the visa fees in all circumstances.

 

The point you need to be really clear about is that you only agreed to repaying the visa fees, if you accepted the employment contract offer ( subject to spending a week with Dongara), moved to Australia and started the employment.  Then go into the information briefly about why you could not accept the employment offer.

 

 

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Keep your eyes on the dates Ginni and you must comply with points 4 and 5 by the dates stated within the Notice of Allocation.

 

Andy

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Also,

 

I'm away on the 16th February on holiday abroad (subject to COVID).

 

Looking at the bottom of the letter in the notes section it says that the court will still go ahead in my absence 🙄

 

Obviously I need to send in a letter at least 7 days before but I will do that this week. Also I will need to do a third Witness statement in due course to try and stress my points the best I can 🙄.

 

 

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Did you state that you would unable on your Directions Questionnaire N180 ?

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When you submitted your Directions Questionnaire N180, subject to the date you filed it ,there was a section at point D4

 

Are there any days that you will not be available in the next 6 months to attend court for the hearing ? 

if yes give details.

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