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Previously on "small claims court versus non-UK resident"

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  • scooterscot
    replied
    Thank you - that seems more than fair to me.

    Leave a comment:


  • Incognito
    replied
    Originally posted by scooterscot View Post
    A draft small claims summons addressed to Glasgow sheriff court
    Okay they've raised it correctly. It's Scots law so your argument has to be that their actions were in effect a repudiation of the contract (they didn't uphold their part) allowing you to rescind the contract which you did in writing. If the court agrees with you that the contract was rescinded then they can't rely on that term. If the court doesn't agree with you then you will be liable.

    You don't need to get all the legalese correct. Simply state on your defence that you are a consumer whereas the agency is acting as a business (show the imbalance in power), you have no legal representation and that you believe the following acts (list their actions in detail) were tantamount to a repudiation of the contract and that you rescinded this, in writing, on (date) therefore there is no contractual agreement between yourself and the agency which they can rely upon.

    Again, always seek your own legal opinion.

    Leave a comment:


  • scooterscot
    replied
    Originally posted by Incognito View Post
    And they've raised this in an English county court, not the Sheriff court?
    A draft small claims summons addressed to Glasgow sheriff court

    Leave a comment:


  • Incognito
    replied
    Originally posted by scooterscot View Post
    Scotland
    And they've raised this in an English county court, not the Sheriff court?

    Leave a comment:


  • scooterscot
    replied
    Originally posted by Incognito View Post
    Ah wait a minute, quantify please. English or UK, I.e Scotland?
    Scotland

    Leave a comment:


  • scooterscot
    replied
    Originally posted by Incognito View Post
    In my opinion, that is how you will wish to construct your defence. You will need to say that their actions were a material breach of the contract between you, you communicated this fact to them therefore there is no contract and their action should fail.

    I will qualify this by stating it is not provided as legal advice and you should seek professional advice from a solicitor.
    Thank you. They're claiming the 2nd bullet point.

    "Right to Terminate Our Agency
    In respect of an active tenancy arranged through Our Agency:
    • You may terminate Our Agency by giving Us 1 months' written notice, but
    • Where You continue letting to a Tenant or Occupier who We introduced then You will be liable to pay Us a Tenant Finding
    fee calculated on a notional 6 month tenancy term starting on
    the date that Our Agency ends with the fee becoming payable on that day. If the tenancy terminates sooner than 6 months after Our Agency ends then We will make a pro-rata refund of the fee.
    • We may terminate Our Agency by giving You 1 months' written notice, or immediately at the end of a tenancy."


    Which would be fair. However I fired them for breeches, some trivial some not.

    One would be failing to pay rent 1-2 months.

    Installing equipment, for example a TV antenna my neighbour's bedroom window instead of the roof (2 story building). I then had to pay for the job all over again.

    All trivial, but so many. Death by a thousand cuts. That was why I terminated their contract.

    Leave a comment:


  • Incognito
    replied
    Originally posted by scooterscot View Post
    UK

    My old UK address at which I no longer reside.
    Ah wait a minute, quantify please. English or UK, I.e Scotland?

    Leave a comment:


  • Incognito
    replied
    Originally posted by scooterscot View Post
    UK

    My old UK address at which I no longer reside.
    Civil Jurisdiction and Judgments Act 1982


    Jurisdiction over consumer contracts

    F97(1)In matters relating to a contract concluded by a person, the consumer, for a purpose which can be regarded as being outside his trade or profession, jurisdiction shall be determined by this rule and rules 8 and 9, without prejudice to rule 3(e) and (h)(ii), if
    ...
    The provisions of rules 7 and 8 may be departed from only by an agreement—
    (a)which is entered into after the dispute has arisen; or

    (b)which allows the consumer to bring proceedings in courts other than those indicated in those rules; or

    (c)which is entered into by the consumer and the other party to the contract, both of whom are at the time of conclusion of the contract domiciled or habitually resident in the same part of the United Kingdom, and which confers jurisdiction on the courts of that part, provided that such an agreement is not contrary to the law of that part.
    They can raise proceedings in the County Court, if they win their action they can then enforce that judgment through the German Courts or if they know you have resources in the UK they can seek recovery of those.

    Your best action is to defend the action over their breach of contract (failure to pay). I can't really comment in detail as I haven't seen the agreement.

    See Terminating contracts for "material breach" - Lexology

    In Dalkia Utilities Services Plc v Celtech International Ltd (2006) 3, the contract concerned the supply of energy services by Dalkia to the paper manufacturer Celtech, and it provided Dalkia with the right to terminate with immediate effect in the event Celtech was in "material breach of its obligations to pay…". Celtech defaulted on 3 consecutive monthly payment installments out of a total of 174 installments and Dalkia sought to terminate the contract. The English court expressly confirmed that "material breach" does not have the same meaning as "repudiatory breach", and the court went on to hold that the continued and repeated failure to make payments due under the contract in question was "material", and Dalkia was therefore entitled to terminate the contract.
    In my opinion, that is how you will wish to construct your defence. You will need to say that their actions were a material breach of the contract between you, you communicated this fact to them therefore there is no contract and their action should fail.

    I will qualify this by stating it is not provided as legal advice and you should seek professional advice from a solicitor.

    Leave a comment:


  • scooterscot
    replied
    Originally posted by Incognito View Post
    Where were you domiciled when the contract was originally taken out between you and the agency? What address did they have down for you on the original contract, English or other?
    UK

    My old UK address at which I no longer reside.

    Leave a comment:


  • Incognito
    replied
    Originally posted by scooterscot View Post
    A small claims court form has been filled out by my old letting agent from two years ago. They claim I owe them money for taking 'their' tenant and owe them a £700 finders fee.

    I terminated their services for negligence, and have not replaced them. They missed two months of rental payments toward me and quality of some jobs I had to re-order with others to get the job done right. I've not used another agency since.

    Would a small claims court peruse a non-UK resident UK citizen living abroad?

    I'm prepared to defend my claim and feel the agent is clutching at straws.

    This agency is Martin & Co. - Truly awful.
    Where were you domiciled when the contract was originally taken out between you and the agency? What address did they have down for you on the original contract, English or other?

    Leave a comment:


  • northernladuk
    replied
    Agents taking people small claims. Could be the start of a worrying trend.

    Leave a comment:


  • SueEllen
    replied
    If you have evidence of incompetence - letters, bank statements, emails or photographs then counter sue them.

    They are relying on the fact you don't want your credit file ruined so will pay up.

    Leave a comment:


  • scooterscot
    replied
    And if the defendant continues to have assets in the jurisdiction? Might the SCC seize assets in my absence should my defence crumble?

    Leave a comment:


  • NotAllThere
    replied
    With a county court judgement, the (alleged) creditor can then go to a court in your country of residence (if in the EU or Switzerland), and persue the debt there. Effectively he has to go to court twice and prove his case twice.

    Leave a comment:


  • scooterscot
    started a topic small claims court versus non-UK resident

    small claims court versus non-UK resident

    A small claims court form has been filled out by my old letting agent from two years ago. They claim I owe them money for taking 'their' tenant and owe them a £700 finders fee.

    I terminated their services for negligence, and have not replaced them. They missed two months of rental payments toward me and quality of some jobs I had to re-order with others to get the job done right. I've not used another agency since.

    Would a small claims court peruse a non-UK resident UK citizen living abroad?

    I'm prepared to defend my claim and feel the agent is clutching at straws.

    This agency is Martin & Co. - Truly awful.

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