No we have not seen any contract. If we had seen the contract we would know what was in it. Without wishing to go into too much detail, briefly the managing agent had been appointed as director of the members' management company way back in 2006, when the block of flats was built. We recently held a members' meeting wishing to get rid of this managing agent, so appointed one of our members as director, and gave them notice that we would terminate their contyract from 31st May 2014
The articles state that a director must be a member of the members' company, and the director (initially the director was the managing agent !) had been changed to an employee of the managing agent in 2010 when the law said that a body corporate cannot be a director of a company. Our solicitor advised us that that appointment was 'ultra vires'.
They claim to have a contract until March 2015, but will not respond to our requests for them to provide details of that contract. Nor will they hand over documents and records to the new managing agent. So where do we go from here ?
"Ok but won't they provide a copy, if they are considering making a claim?".. I don't think you have understood. They are NOT considering making a claim. They just won't communicate with us. They say they have a contract until March 2015. We ask for details of it, and can they prove that they have a contract. But they just don't reply at all. So my point is: if we appoint another managing agent, can they later sue us for breach of contract if they then, at that time, produce a (valid) contract ?
Right, thank you. If we apply to court using form n244, what would be the situation re court costs ? Would we incur any even if it turns out that they do NOT have a valid contract ? Also by refusing to communicate with us, is that not a breach of the assumed contract ? They manage the properties on behalf of the members (management company) - if the members wanted, for example, to discuss or review their performance in managing, then there has to be a communication between the two parties, and if the managing agent just won't communicate, then is that not sufficient grounds to claim that they have breached the (assumed) contract ? [Also : I keep receiving emails "Please rate my service" 14 so far ! I cannot rate your service until it is complete.
This link: http://hmctsformfinder.justice.gov.uk/courtfinder/forms/n244eng.pdf - did not work
If you in the application you can ask for costs.
If they refuse to provide the document then they could be in breach of a Court order - contempt of Court.
By refusing communication does not necessarily mean they are in breach - if there was no term saying they needed to reply, then it can't be a breach.
But if they are not doing the work or things they say they would that would be a breach - but that does NOT mean it automatically ends.
The contract would still be in existence.
Does that help?
"If you in the application you can ask for costs." meaning: If we ask for costs when we apply for a court order ? But we can't be sure that we would get costs ? I tried the link you sent - see above - but as I said before it does not work. So are the costs on a set scale according to the money involved ? Because if we applied for a court order it would be to get them to produce evidence of the contract, so we cannot be sued for breach. What costs would apply ? (there would not be a sum of money)
Yes you can apply for costs when you get the Court order. No, you can't guarantee getting costs, these are always at the discretion at the Court.
Costs will be summarily assessed on the day.
Therefore if you had Solicitors doing the work, the Court would assess whether those costs are reasonable.
If you do it yourself the court allows £18 an hour, but again time spent must be reasonable.
A Judge can allow or reduce costs
Does that clarify?
Yes thank you