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Jo C.
Jo C., Barrister
Category: Law
Satisfied Customers: 30929
Experience:  Over 5 years in practice
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25th January 2016 We attended court today to try to have

Customer Question

25th January 2016
We attended court today to try to have a Statutory Demand Set Aside due to the fact that the claim is still under dispute. they have a ccj for £10000!
The judge believed that we had already defended the claim at the CCJ set aside hearing but this hearing was just to ask for it to be set aside due to it being served at the wrong address and in the wrong name..ie Countryside Maintenance. By some strange means the claimants managed to get the court to add Henry’s personal name without further recourse to court? he had no paperwork about this as it was heard in a different court as well. the application today also asked the claimant to respond to the application for the set aside of the stat demand within 7 days but they failed to do this. he asked them why and they just said it was an oversight and he let them off?
There has therefore been no actual defence of the claim in court and as the customer is now claiming £9700 on a job he had already paid £12000 for we cannot understand how this figure was arrived at.
The customer had a survey done and this stated that there was remedial work required to complete the deck!
We believe that he customer decided the deck was too big and had it re-designed and is attempting to get us to pay for it by disputing the quality of the original work.
The original quote was £14000. They paid £12000 and there were relatively small amounts of finishing to do.
They are now claiming it cost them £9700 to have the remedial work done and that no builders would take it on unless it was rebuilt.
They also claim they have not used any of the “old” materials but this is a lie as we have seen the “new“deck and the materials are the same ones as we supplied.
The judge today did raise his eyebrows about the level of the claim being made but insisted that as we had been to court to try to set the judgement aside we would have presented the above facts and had made a defence. This was definitely not the case. as we simply applied to have it set aside because it was served on the wrong address as my son moved twice in this period.
We now need to put in either a counter claim or an appeal or defence to the original claim as because the judge does not accept the fact that the claim is in dispute he is allowing them to make the statutory demand albeit they will have to pay around £1200 to instigate the bankruptcy petition. we understand that if a claim is under dispute they cannot use a stat demand as a means of debt collection but this is the sherriffs office we are talking about!
There are absolutely no assets or capital of any kind to claim against but it will cause considerable hardship for Henry and his family and disqualify him from being a director of his own company.
Submitted: 10 months ago.
Category: Law
Customer: replied 10 months ago.
original ccj was by default
Expert:  Jo C. replied 10 months ago.
Hi.
Thank you for your question. My name is ***** ***** I will try to help with this.
How can I help with this please?
Customer: replied 10 months ago.
well the claimants next action could be to apply for the bankruptcy but that will cost them £1200.
what is the best route for us to take to get the actual cllaim back to court to defend it properly? and prove that it is in dispute
Customer: replied 10 months ago.
?
Expert:  Alex J. replied 10 months ago.
Hi
Thank you for your question and welcome. My colleague has asked me to assist you.
Were all invoices made in favour of the company only?
What justification did they have for adding the director personally?
Have you now submitted a defence to the claim?
Kind regards
AJ
Customer: replied 10 months ago.
hi he was a sole trader t/as countryside maintenance and the invoices had the business name on them. they issued the original claim in the name of just countryside maintenance but thne later they got the court to add the personal name.
we hadnt issued a defence to date because we were trying to get it set aside as it was sent to wrong address and indeed the ccj is still at the wrong address!
H now has a ltd company and is a director and the original business as a sole trader has ceased trading.
Customer: replied 10 months ago.
so far little to go on from you?? and you have taken my money although i havnt had answer ?
Expert:  Alex J. replied 10 months ago.
Hi, Thank you. My apologies for the delay. Now you have set proceeding aside you will have to issue a defence otherwise you will end up with another default Judgment. Was the invoice for the services sent from his trading name (i.e his sole trader name)? He will only be disqualified as a director potentially if he is made bankrupt - worst case scenario could he settle the proceedings and afford to repay anything?
Customer: replied 10 months ago.
no have you read the above?
the judge didnt set the stat demand aside as he said the original claim when we tried to set that aside must have been defended at that point but it wasnt! he didnt have any of that paperwork to look at either - he just presumed!
also we checked and apparently if he refused to set the stat demand aside he should have given the claimant an order to immediately or by a specific date to apply for the bankruptcy- he didnt do that either he just dismissed us all.
Customer: replied 10 months ago.
and no he cant afford to pay and we dont believe he owes anything anyway.
we need to know the best way to counterclaim or put our own claim in or??
Customer: replied 10 months ago.
We think the judge acted properly as it was very clear that the claim was still in dispute and there is a case which disallows stat demands as a means of debt collection where the claim is still in dispute?
Expert:  Alex J. replied 10 months ago.
Hi, Thank you. The whole purpose of statutory demand is that it is a pre cursor to show some one cannot pay their debts when they fall due. You are correct if the debt is in dispute the statutory demand should not be served - if it is served it could be set aside.I have read the facts above, but I am slightly unclear about a few points (i) The Judge did not set the order aside - if that is the case are the claimants demanding payment? (ii) Are you saying that your son has a counter claim for his invoice?
Customer: replied 10 months ago.
Hi they havent yet demanded payment or served bankruptcy petition.
its not really a counterclaim its just that he doesnt owe them what they have managed to get the default judgment for.
it was only in court yesterday and it was only then we found out they had rebuilt the deck and thye allegedly used new materials! they didnt as we have visited the site and they are the same ones we supplied!
they had their own survey done which we have a copy of and that stated only remedial works were required which as there was still £2000 of the original contract o/s that should have been enough to finish the job.
they are claiming £9700!!
we never had a chance to defend as the claim went to the wrong address but when we applied to set it aside the judge all but called my son a liar! It obviously was served at the wrong address as the ccj is not even registered against his address now.
Expert:  Alex J. replied 10 months ago.
Hi, Thank you. If your son has no funds to pay this, then it seems unlikely they will petition for his bankruptcy as this is as substantial cost. Your son could consider appealing but again this would also take time and money. Do you have any dialogue to negotiate with the claimants?
Customer: replied 10 months ago.
not really we sat in the court room and we basically didnt speak!
how can we prove to them he has no assets or savings?
or how will they know not to petition for bankruptcy becasue he has no money or assets. he rents a house, leases all cars etc all his equipment is in his ltd company.
they are trying to get him to pay for a redesign and build of their decking because they didnt like the original! how unfair is that.
I am a builder as well (25 years) and at the time i even offered to go and help sort it out and finish it off to their satisfaction but they obviously had other ideas.
also just realised this public info so could you remove the names i put in the first few emails?
thanks
Customer: replied 10 months ago.
an idea
could he swear an affidavit with a solicitor to say he has no assets etc and put that to the court and send them copy?
Expert:  Alex J. replied 10 months ago.
Hi
Thank you - I will report it to the site admins and state that personal info needs to be removed.
Have you actually received a demand for he judgment are they waiting for 28 day payment terms to expired?
Kind regards
AJ
Customer: replied 10 months ago.
no we have had no 28 day demand only the statutory demand? is that not the same? We applied to have the stat demand set aside within 18 days as per instructions. stat demand was issued 26th November 2015
the judge was supposed to tell them a date to send petition by or order them to do it immediately but he didnt.
he was a stand in judge and another solicitor was asking the usher was he trained!! we didnt even get his name.
Expert:  Alex J. replied 10 months ago.
Hi, Thank you. if the stat demand has been issue, then it will contain a penal notice of 21 days - after that notice is expired, they could potentially petition for bankruptcy. Unfortunately you cannot challenge the validity of the stat demand at this moment as they have a Judgment supporting it. If the original invoice was never paid, has your son considered suing for that invoice?
Customer: replied 10 months ago.
ok as they have told the court that they bought all new materials then could my son not ask for all of his materials back which were £6000! he quoted £14000 they paid 12000 and now they say they have spent another £9700! We know they re-used his materials as we have seen them so some of the £9700 is certainly bogus. in any case their own expert said they only need to spend £2000 to finish the deck to a good standard.
if he could countersue them for an amount that reduced the so called debt to less than £5000 then they couldnt use bankruptcy anyway could they?
what we want to know from you is how we do this and which type of application we use.
we would prefer a brand new claim against them as wont the court throw it out as it is so far down the road?
Expert:  Alex J. replied 10 months ago.
Hi, Thank you. If it is a straight forward claim for the cost of the materials you need to prove that your son is owed the money for the materials. The only way to do this would be with a contractual obligation to pay the materials - can you prove that there is £6k in materials that have not been paid for? Kind regards AJ

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