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Joshua
Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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Morning, I have received a claims from the county courts for

Resolved Question:

Morning,
I have received a claims from the county courts for a cheque that I cancelled.
I have had an on going dispute with a window fitting company for approx. 4 years. During that time they have made numerous visits to the property to make adjustments and replace products that were not up to standard or supplied incorrectly. The products have been breaking down on a regular basis and they have been having to attend site to make repairs. during the original installation they managed to damage my patio slabs of which I held back a payment to them until it was rectified, however they delayed repairing the damage so long that they were unable obtain the correct slabs and fitted some of totally different colour and I deemed this a being unsatisfactory and refused to pay them the balance of what I owed them. After further communication and visits, we settled on a figure that I would pay them of £1000 in full and final settlement.
It was agreed they would attend site and carry out a schedule of snagging works that was agreed and I would pay them 50% on the day and the balance when I was happy that the work they had carried out was satisfactory. The agreed date to do this was on the 9th April 2014, the fitters arrived carried out a few of the jobs took payment and before completing the full list of jobs left site. I upon being told this I made several calls to their office left messages and received no response. At this stage I decided I would cancel the £500 cheque and the following day sent them a letter explaining why I cancelled the cheque and that they should contact me to discuss. I have received absolutely no communication from the until I receive a court summons suing me for the cancelled cheque.
I intend to contest the claim and issue a counter claim for the damage they have caused to my property and the fact that the windows they have installed have had to be adjusted numerous times and are still not of a an acceptable standard and I deem them as being not fit for purpose as it seems that no matter how many times they adjust they are not able to make them draught proof.
your advise please on if I have a claim against the fitting of the patio doors and the damage to my property.
Regards
Les Algar
07956 850731
Submitted: 3 years ago.
Category: Law
Expert:  Joshua replied 3 years ago.

Joshua :

Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.

Joshua :

From what I understand there has been a long running dispute but this has been distilled down to a dispute about £500 which you agreed to pay in advance on the day they were to attend to carry out work with a further £500 on satisfacotry completion of the works agreed.

Joshua :

The company is from what you say not claiming the other £500 but only in relation to the £500 you gave them a cheque for. Do you have your agreement between the company and you in writing that the money would be paid in two tranches on the basis that they carried out a shcedule of works agreed?

Joshua :

Do you have correspondence or documentation showing that many of those works were not carried out?

Joshua :

What proportion of the works agreed for £1000 overall were carried out?

Customer:

The director from the company attended my premises and made a schedule of works, I have a copy of the letter I sent to them back in MAY 2013, I attach this letter and a further letter confirming our agreement, however I was advised verbally to give the cheque to the fitter when he attended site.

Attachment: 2014-05-23_095920_astral_security_windows_limited_______10-04-2014.docx

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Attachment: 2014-05-23_100004_astral_security_windows_limited____03-05-2013___________________________________________________________8_glen_gardens.docx

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Attachment: 2014-05-23_100027_astral_security_windows_limited____13-06-2013___________________________________________________________8_glen_gardens.docx

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Joshua :

Thanks. Just reviewing the attachments...

Customer:

Joshua,

Customer:

I have so much correspondence I have sent to this company over the last four years trying to get them to resolve the issues we have wit there products.

Joshua :

Do you have any written agreement from them as to your proposal or have they never committed anything to writing and maintained verbal communication only?

Customer:

The schedule of works was a list the director made on a note pad, nothing issued in writing, however you can see from the letters I have issued to them that the Patio doors are the main issue, however I do not think they can fix the problem this is why they were left on their last visit.

Customer:

SORRY MISS TYPE ,I DO NOT THINK THEY KNOW HOW TO RESOLVE THE PROBLEM.

Joshua :

Thanks. The initial issue you have is that giving a cheque to a contractor creates a prima facie position that you agreed you to pay them and the effect of this is to shift the burden of proof to you to demonstrate that you do not owe them what you paid.

Joshua :

This was established in Barclays Bank v WJ Simms & Cooke (Southern) Ltd

Customer:

I paid them on the understanding that they would carry out the agreed schedule of works, they failed to do this. I tried numerous times to contact them to find out why and they refused to return my calls. This is when I wrote to them explaining my action. I would like to issue a counter claim for the damage caused to my property am I in a position to do so.

Joshua :

Sorry for the delay in reverting to you - one of my colleages keeps locking the post accidentally which prevents me from posting...

Joshua :

The other case that is relevant is Nova (Jersey) Knit Ltd v Kammgarn Spinnerei GmbH 1977

Joshua :

These cases and in particular the Nova case form something known as the "cheque rule" and the defences to a cheque being dishonoured are very limited - fraud and duress.

Joshua :

These defences are very high interms of test and based on what you say I do not think you will be able to meet their test. However although it seems unlikely you would be able to defend against the cancelled cheque, this does not mean you still do not have rights under the Supply of Goods and Services, and accordingly rather than a defence, a counterclaim would seem to be in order for breach of contract for failure to carry out works.

Joshua :

A failure to carry out works would amount to a breach of contract and any unsatisfactory work would amount to a breach of contract under the terms implied into your agreement under the Supply of Goods and Services Act and providing you have clear evidence of the works not carried out/unsatisfactory works of which your above correspondence forms part, you should have a reasonable basis for a counterclaim.

Joshua :

There is a potential defence under the cheque rule known as failure of consideration. i.e. although you gave the cheque, there was a complete failure of any work carried out as consideration for the same. Case law has shown however for this defence to be successful there must be a complete failure of consideration -- i.e. no work carried out at all. You could attempt a defence on this basis but as they have carried out some works from what you say this defence would likely be weak, though as above this does not prejudice your right to counterclaim

Customer:

One last request. would you be able to advise when what I should write in the defence to the claim. I can counter claim on the same form or would you recommend I issue a counter claim once I have received a quote to replace the doors.

Joshua :

The only defence that you could potentially raise that is likely to succeed would be a failure of consideration - that they carried out no work for the cheque. A counterclaim should be made at the same time as any defence or you need to ask permission of the court which is a slightly cumbersome additional step. You can always amend the amount of your counterclaim at a later date if you wish following your quote

Joshua :

Is there anything above I can clarify for you?

Customer:

the following is my proposed defence any comments.This amount claimed of £500 is a part payment of an on going
dispute I have with Astral Windows.
Astral agreed to carry out a schedule of works on doors and
windows fitted to my property approx. four years ago. I agreed to
pay them a £500 in good faith that the fitters would complete
this agreed schedule, this was not adhered to and some of
snagging work was not carried out, they resolved the smaller
issues and left site after receiving the payment not having dealt
with the on going problem we have with the patio doors to the rear
of the property. This work was carried out on the 9th April 2014.
I wrote to Astral on the 10th April 2014,explaining why I took
this action and had received no communication from Astral to
discuss this until the 17th May 2014, when I also received this
claim.
I plan on counter claiming from Astral Security windows on the
following grounds. They have smashed a freshly laid garden patio,
destroying 8/9 slab while fitting patio doors, leaving it so long
to replace they could not get the correct slabs, now to bring
back to original condition the remainder of the slabs need
replacing. I have a quote to do this of £2150.00 plus VAT. Second
issue Astral fitters without our consent used a Bissell Carpet
Cleaner to hoover up debris, damaging the machine beyond repair.
(£199.00)
The patio doors they have fitted to the property are not fit for
purpose, Astral have made many adjustment to these doors and have
not been able to bring them up to a standard so they perform for
the use they have been sold for.

We are currently in a position where a pair of the doors off of
the kitchen do not open, the lock has jammed and Astral have
refused to deal with because of this dispute. We have no escape
route from the kitchen in case of fire. And I am concerned that if
I arrange to third party to carry out this work it will void any
warranty we may have on the doors.

Joshua :

Although the defence is perfectly reasonable, legally I do not think it will succeed because it fails the test laid down in the Nova case which is the legal precedent. You admit some work was carried out and for a defence of no consideration you have to show that no work was carried out. However your counterclaim should have a reasonable chance of success based on what you say

Joshua :

Is there anything else i can help you with?

Customer:

Thank you for your help, I will issue as is and await courts response. Kind Regards XXXXX XXXXX

Joshua :

If I can assist any further as the situation develops please do not hesitate to revert to me

Joshua :

Good luck with yout counterclaim. If you have no further questions for now I should be very grateful if you would kindly take a moment to rate my service to you today. Your feedback is important to me. If there is anything else I can help with please reply back to me though

Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
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