2 judgements on one claimfrom builder within 4 days ** SUCCESS**

[intree]

I am hoping that someone can help me with a problem builder.

 

I have had problems when the builder left the job, and I had to employ other builders, before I was made redundant, the builder was sent several letters (which he says he has not received) the last one was to inform him that due to his non response to complete the works, we employed other builders to complete the works and sent him a bill for the amount paid, which was over £4000, we gave him 7 days to pay or would take court action.

 

In June no payments were received so a claim went in through MCOL, this was acknowledged by the builder and he had 28 days to defend, but went on holiday, so we waited until after the 33rd day and reuqsted a default judgement, this was issued and on the same day he put in a defence.

 

We did not receive this until after lodging a issue for a warrant, the bailiffs went round and discovered that he has some relatives private house as his company address, so the warrant was not fulfilled, the matter was then passed to Hight court enforcement officers, as the builder has already said he is going to declare hi company insolvent, however he has 3 jobs on the go and just moved into a £2000 per month rented property.

 

on 4 Septemeber the court received and acknowledged and tranferred the claim to the local courts, for a set a side of the judgement, as he has put in his defence that we owe him some money (which is a lie) he also said he was on holiday so could not put in his defence earlier that the date we received judgement.

 

I am not very happy as we have been trying to sort this matter out for 3 years with him and now he says he did not receive the letters sent to him, until he received the court claim, we have photographs of the work he left and also the council has confirmed that he never contacted them for inspections of the final work.

 

I am at a loss as to which way to go on this as we are owed this money by him and he has dodged and ducked his way out of his responsibilities, so I was hoping to get advise on how to object to his set aside application and if it would be wise to disclose all the documents to court that we sent to him now, or wait.

 

I appreciate all help and assistance as always.

[BankFodder]

There is very little hope that you will manage to resist his set aside application if he can show that he has an arguable defence.

 

However, you are in great danger of costs. The judgement will be set aside and so will all enforcement proceedings but the enforcement officers will want to be paid to any work that they have done so far. They will look to you for the money and it can be very expensive.

 

I suggest that when you go to court prepared to object to his set aside application if you think you have a good basis -- but mainly, be prepared for the set-aside to be granted and prepare to ask the judge for an order for all costs which you have reasonably incurred as a result of his dilatory behaviour.

 

I think that you will need to prepare very carefully, try to give the judge a little bit of background, but not so much that the judge that you are trying to argue the case there and then. Take the judge very carefully through the steps that you have taken on the basis of the judgement which you were granted. Explain to the judge that you acted reasonably on the basis of the judgement and especially because the builder had informed you that he would soon be closing down his business. Explain to the judge also that the builder clearly did not take the claim very seriously because although he had the time to acknowledge the claim, you then simply went off on holiday knowing that he would miss the deadline and he only filed a defence once he returned from holiday and it was convenient for him. Say to the judge that you feel that it would be unfair that in the circumstances you should be obliged to carry costs which have been caused by the poor attitude and unreasonable behaviour of the builder. Ask the judge whether in granting the set aside he might also grant you an order for costs.

 

Additionally I think that you are in a very good position to ask the judge to make it a condition of any set aside order that the builder pays money into court.

 

I think that you should ask the judge to consider that it seems to be highly likely that the builder may close his business before a further hearing and a judgement and enforcement can take place. Say to the judge that if he is minded to grant set aside that he might also be minded to make the set aside conditional upon payment into court of the sum claimed plus all wasted costs so far including the cost of the claim and also enforcement costs incurred to date.

 

If you have got any evidence that the builder has actually said that he may be closing his business then produce this in court. This will help a great deal. If you have a witness who has heard him say this then get a witness to write up a statement and to sign it as a statement of truth. Produce a statement at the set aside hearing and have the witness present in case the judge wants to question him.

 

If the judge accept is that there is a possibility that the builder will go out of business then I would say that you are 90% likely to get an order of payment into court. This will secure your position. This kind of order typically says that money must be paid into court within two weeks in which case the judgement will be set aside by failing which the judgement will stand.

[BankFodder]

I should addthat it seems to me that you have contributed to your predicament. It is a mystery to me that anyone should allow something like this to continue for as long as three years. Also when you issue proceedings you should observe the deadlines and move very quickly at their expiry.

 

I suggest that you change your style of litigation

[intree]

Thank you for your advice I appreciate it very much, I

[intree]

I did not take the litigation of this lightly, it is that this builder always said he would do the work and we waited for him and this never occured, the other reasons for the delay were the investigation by the council, which he made, and were unfounded, and they appointment of new builders, who quite correctly did not wish to do his work for him.

 

As a last resort and working through all the avenues we came to the conclusion that this builder was not going to pay or or do the work, hence the action taken.

 

I will take your advice but any other comments to see this matter through are greatly appreciated.

[intree]

should we also send all the documents or wait until there is a final hearing at court

[intree]

I have spoken to the High court enforcement officers and they said they are going to put the enforcement on hold until after the set aside application has been completed, they have said there are no fees and that if the action is aborted there will be a £60 fee, but they can be instructed at any time, within the next 6 months and they will not charge the fee.. god I am glad you advised me to get that bit sorted.

 

so now I have just this hearing to deal with, and would be grateful for advice regarding pist 5 and 6 if at all possible...........in that should I send in my documents or wait until a full hearing, and just give a outline of what has occured to date in a letter?

 

Thank you

[intree]

Just as a matter for further advice, the enforcement officers have informed me that the Builder was never registered for VAT, despite him charging us nearly 8000 in Vat on the build, so this matter is not as clear cut as the builder had tried to make to court in his set aside application.

[intree]

Thanks for all the advice - i attended the Hearing to strike out the defendents application to set aside and also applied for costs.

 

The builder never turned up as usual he stated he was on holiday yet again, so his application was dismissed, I also took along a schedule of costs to date, and was awarded 240 pounds, I dont know how he is going to defend now, but the Judge told us, after looking at all the evidence we submitted that we should now enforce the judgement after 14 days.

 

The problem is he now owes over 5300 pounds, but he is not making payments, so the next step is to take this matter to enforcement through the High Court,

 

My Question, is what happens if he is still not going to pay, is his bankruptcy a option I know this is drastic, but this builder is very evasive, he has also charged me £8000 in VAT when the HM CUSTOMS have advised he was not registered to do so.

 

I have won the judgement against this dodgy builder, but what now?

[42man]

Garnishee order ?

[intree]

Hi 42man thanks for your advice, is there anywhere I can find how to do this, I would be most grateful, also I wish to make a donation soon do I do this via this website or just cheque.

 

Thanks

[42man]

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/206739-help-required-enforce-ccj.html - ill see if I can find some more info for you...

[intree]

I am hoping for some more advice :

 

Just called the court today to ask when we would get the Judgement Order which dismissed the builders application to have the judgement set aside, and they said they were 4 weeks behind, however the court went on to advise that there had been a Hearing on 9 November 2009 (which we were advised by the judge on the 4th November 2009 Hearing was vacated) where the builder attended and there are now directions for the set aside application for the Builder to be heard again and the order which was made is dismissed as it had not been typed up.

 

I think this is disgraceful as the builder did not turn up at that hearing and then 4 days later has his application re-instated and our application is not even considered.

 

Is this how these courts work?

 

I am just lost for words and can not even think what the directions will now say, we have been advised to wait until friday as the file is still with the judges chambers.....................any advice appreciated

[intree]

I am just so furious - why are these courts so incompetant and is there anything I can do, not to get the original judgement thrown out of 4 November which dismissed his application to set aside ?

[supasnooper]

I'd be inclined to put your last two posts into a polite letter to the Court Manager asking for an explaination as to what has gone on.

[intree]

thanks again supasnooper - we thought it had been dealt with and the Judge told us to enforce the order, we have sent it to the enforcement officers and now this, would writing to the manager assist or would they just make excuses - I have just about had enough of this builder and his antics since 2006, we seem to move one step forward and 2 back and the courts dont know or seem that they dont read the notes on file, before they make orders................or is it me being paranoid?

 

sorry for my rant

[palomino]

Be patient. Losing your rag is the worst thing you can.

 

You will have to go through all this in court yet again I'm afraid. The only consolation is that your costs will have increased proportionately.

I would very gently point out to the judge that the builder appears to be 'playing the system'. If you do this carefully you will get the judge on your side and maybe get a final resolution to all this.

 

Two things I would do -

1. Write to the Clerk of the Court as suggested above to find out what the heck is going on. Maybe the Judge and Clerk don't talk to each other...

2. Lodge a formal complaint with HMRC. The VAT people can be mighty vengeful when crossed, especially when VAT collected is not paid. What your builder appears to have done is criminal and he could be be put away for this. If you don't get much satisfaction on your own case then you can at least make sure the builder cops a packet from HMRC.

[intree]

thanks so much for that I will write tomorrow, to the court, I have reported the builder to the Inland revenue but as yet they have not done much and he is such a pain in the neck................I understand about the court but can not understand why they make judgements and then change them at will - this must be keeping them in well paid jobs or keeping the wheels of "JUSTICE" moving.

 

Thanks

[supasnooper]

Court Fees perhaps ?

[intree]

so the "overiding objective" is NOT something I should bring up in my letter or would it assist in keeping the original order?

 

you know wasting court time etc etc - only it appears the court can waste its own and our time but still abide by the overiding objective.........just makes me angry...............

Edited December 2, 2009 by intree
claim reinstated against builder

[intree]

UPDATE: sent this fax to the court, now had a phonecall as they are unable to locate the file or the order, however it is recorded that we attended and also the outcome - what a shambles the system is

 

 

I will post any developments and thank all who responded:D

 

Following our Application dated 21 October 2009, we were given a Hearing date for 12 Noon on 4 November 2009, by court notice dated 29 October 2009. Which, we duly attended before a honourable District Judge. The Defendant failed to attend, despite being sent a notice of the above said Hearing.

 

 

The Hearing was set to strike out Defendant's Defence/Application to set aside the Judgment. The Hearing was set following documents being re-submitted by us on 19 October 2009, as the originals had been misplaced and were not on our file, on 16 October 2009.

 

 

The District Judge confirmed that our application, was not relevant as the defendants application to set aside the judgement was to be dismissed at this Hearing, the Hearing of 9 November 2009 was to be vacated.

 

 

The Judge asked us to note the Order as follows:

 

• Defendants application to set aside judgement is dismissed

  
  

• Costs to be paid by Defendant assessed at £230.25 to be paid within 14 days of the date of the Order.

  
  

 

We called the Court last week on two occasions and were told the Order has not been typed up as there was a months backlog. In the meantime High Court enforcement has commenced, based on the Hearing and Judgment made on 4 November 2009.

 

 

My concern was raised yesterday when we contacted the Court, to obtain the order of 4 November 2009, when we were advised that a Hearing on 9 November took place and the Defendant attended. The Judge has set Directions to a further Hearing to hear the dismissed Application, which has already had a judicial order by a District Judge.

 

 

We have spent a considerable amount of time in trying to deal with this matter with xxxxxxxx Build Ltd who have failed to resolve the matters amicably and failed to attend the Hearing on 4 November.

 

 

Please can the Court Manager assist us, in explaining what is happening with our case. We thank the court for its assistance and await the Order of 4 November 2009, as soon as possible and a explanation as to why there is some confusion as to the Order dismissing the defendants application to set aside the Judgemen

[intree]

court can not find file, advised me to call back on monday afternoon.

 

what a shambles!!

[intree]

update:

 

I just can not believe what the court has done, They made judgement on 4 November 2009, dismissing claim, and they have made a further judgement on 9 november 2009 (we were advised this was now vacated) allowing the set aside of our judgement.

 

IS THIS REAL

 

The excuse is : they were part time judges and the latter judgement, was made when the defendant attended and we did not (despite the fact that this hearing was vacated)

 

I have now go to wait until a set aside Judge, who deals with these matters on Wednesday looks at the claim and makes a decision.

 

How stupid and time wasting is this ??

 

I just dont know what to do as the judgement has been sent to the High court for enforcement on 5 November 2009.

 

Any help appreciated..

[intree]

polite bump for advice

[intree]

Court has now informed me that the Judgement has been set aside and the costs order is also set aside against the builder, that his application to set aside will stand as his defence.

 

What a waste of time 3 years of trying to deal with this matter - builder is sent all documents to confirm what action we will take, he acknowledged claim then went on Holiday, returns off holiday and puts in his defence 4 days after deadline, we get judgement - start enforcement, then go to a hearing to have our application hear, which is not heard, claim is struck our with costs - then week later another judge, sets judgement aside.

 

Now we have a order for AQ completion and submitting to the court and also paying more to get the claim to court again.

 

WHAT A JOKE THIS WHOLE SYSTEM IS.....