credit corp/Stevensdrake claimform - Aus Card Debt ***WON***

[Rebecca H]

I have already looked at the terms and conditions and can't see anything about enforcement overseas but I'll look again .

I'm going to find out what legal proceedings if any have taken place in Australia. Stevensdrake have never mentioned that there has been any legal proceedings in Australia. I would have thought that there would have been documents relating to this in all the copies of everything they sent me.

 

I am also going to look into going bankrupt in Australia then there is nothing they can do here. Very drastic and I really don't want to but if it's the nay way then I will.

[krios]

Hello Rebecca,

I don't get here often these days but have read your posts.

I might be wrong but it used to be the case that you can only go bankrupt in Aus if you are resident and present in the country.

You still have the asic to contact and jurisdiction to contest.

[Rebecca H]

Thank you Krios, yes, I think you are right re resident in Australia. What I'd really like to do is stop them being able to open the case again. We'll see.

[Andyorch]

And Summary Judgment

[Rebecca H]

Yes, indeed.

[Rebecca H]

I've been trying to find out more about Jurisdiction as the court case is looming and I want to be prepared.

 

I have been looking back at the witness statement of Stevendrake and it refers to case law of Maharanee of Baroda v Wildenstein.

 

From what I can understand the English court ruled that as he had been residing in the UK, then the court had jurisdiction to decide the case.

 

I also found a case of Owusu v Jackson.

 

I have done some research and the European Court of Justice has stated that where the Defendant is domiciled in the UK the convention requires that the case be heard here even if the courts of a non EU country would be more appropriate.

 

How can I argue that they have no jurisdiction to hear my case here?

 

Any help greatly appreciated,

 

I've also found this article on jurisdiction.

 

http://www.clarkslegal.com/article/783/determining+jurisdiction+under+english+law

 

Am I right in saying that Stevensdrake are claiming they have jurisdiction because I have lived in the UK for more than 3 months but I am arguing that because the case is based on an Australian credit agreement then the UK court cannot hear the case as it would be unfair to me because they cannot judge on Australian consumer law?

[citizenB]

I would have thought if the debt was subject to Australian Law, then a UK court could not judge it ?

[Rebecca H]

I am just trying to really clarify that, I have had lots of help on here and the general opinion os that it can't, but as I may have to argue this in court very shortly I am trying to get as much information and help as possible.

[unclebulgaria67]

I am just trying to really clarify that, I have had lots of help on here and the general opinion os that it can't, but as I may have to argue this in court very shortly I am trying to get as much information and help as possible.

 

If you search there are numerous articles by Solicitors on foreign debt enforcement in the UK and arguments about jurisdiction. If the debt issue is straightforward with no disputes that would need to be decided in the Aussie courts, then I am not sure how a UK court would handle it, particularly if an Aussie court has not even heard a case about the debt . This is the reason why I have said before that you need to identify legal issues/disputes in Australia that would lead to a UK Judge saying that they would not touch it, until the Aussie issues/disputes had been resolved.

 

If you cannot find any real issues in Australia that would help you, because you may have left Australia before an Aussie court had a chance to even hear any case, then I expect a UK Judge would accept that it is reasonable to hear a claim in the UK where you are resident.

 

Is the debt being chased for a definite sum which is for the debt left behind on the credit card/bank account ? No fees/charges added that would be seen as a penalty ? If there were penalty charges included within the claimed amount, this could be a possible issue to raise.

 

Then there is the issue of the debt ownership and the rights of credit corp to bring the court claim. Have you received notice of assignment from NAB confirming that credit corp now own the debt or have right to take any legal action to recover the debt ?

[Rebecca H]

Thought I would let you know that the Judge decided that my case could be heard in a UK court.

 

As I didn't have a more up to date case concerning judgements on jurisdiction than the one referred to in Credit Corps witness statement, [which was the Maharanee of Baroda Wildenstein [1972] QB 283] the judge had to base his decision on the one given.

 

He didn't give Summary Judgement as he said that he felt that based on the little information he had I may have a case to go to court. The credit card agreement had all kinds of tailor made bank jargon which would not stand up in court and that I am still married and he suggested that that is an avenue to pursue.

 

He suggested I try and fine a No Win, No Fee solicitor to help me.

He also suggested that we mediate after the hearing.

 

The Credit Corp agent said he didn't have any authority to negotiate but suggested that I write a Without Prejudice Letter to them saying that I did not any money etc etc.

 

He said they would not want to go to trial and then find that I couldn't pay them back anyway.

He very clearly wasn't impressed with Credit Corps agent and gave hime quite a hard time.

He has given me until July 2nd to file a defense.

I haven't heard anything from Credit Corp or Stevensdrake as yet.

 

Any suggestions on what next appreciated.

[unclebulgaria67]

Rebecca

 

If there is a chance for a local Solicitor to you to win an easy fee for helping you on a no win no fee basis, they will do so. Just google (city where you are based) no win no fee solicitors) and you will find one. I suspect a Solicitors with access to a good library resource will just look up Maharanee of Baroda Wildenstein [1972] QB 283] and find another case that is more useful to you.

 

The Judge has been very helpful in giving you a few hints. It sounds like they are giving you every opportunity to win this. I don't know what your financial position is like, but if you own any property in the UK, I suspect Credit Corp will want a good portion of the debt paid or agreement to pay or they will want to continue in court. Hence advice to see whether a local Solicitors can help get rid of this, with the help of the court.

[unclebulgaria67]

Just read a bit more of the Maharanee of Baroda Wildenstein [1972] QB 283 case. This seems to be just about whether a UK court can hear a foreign debt and appears to still be the current case precedent.

 

As far as I understand it, if credit corp want a UK court to look at the debt, they will have to accept the UK standards in regard to consumer credit. From what has been said, the credit card agreement does not appear to contain all the relevant information for a UK court to want to enforce the debt here. You really could do with a Solicitors looking at this.

[steampowered]

Hi Rebecca, as your arguments on jurisdiction were not accepted, the case will now proceed through the English courts. It will be very difficult to try and contest that now.

 

Australian law will apply to the debt itself. English law will apply to the procedure of the case. English law will apply to any enforcement action taken if a CCJ is issued and English regulations will apply to the conduct of chasing the debt.

 

The English courts are able to apply to foreign law, especially for something like Australian law which is very similar to English law and Australian cases are often cited as examples by the courts. If there are difficult Australian legal issues in your case the English courts will accept evidence of Australian legislation/case law. If its very difficult an Australian law expert can be called in but that sounds unlikely here.

 

I haven't read the whole thread so others might have better advice, but personally I would take the judge's advice of writing a 'without prejudice' letter to the other side setting out your financial position to explore the possibility of reaching a settlement.

 

The other thing that needs to be done is writing a Defence ... if you want input it would help if you could summarise what are the grounds you have at the moment for contesting the debt.

[krios]

Don't know if this will help but judge stated they did not have jurisdiction on a USA claim

 

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?321375-Received-court-summons-from-US-company-for-Milton-Keynes-CC-Help-**-WON-**/page4

[unclebulgaria67]

From what I understand a UK court will look at most debts incurred in other countries.

 

In the Maharanee of Baroda Wildenstein [1972] QB 283 case, the lady concerned was a resident of France with I think the debt incurred elsewhere in the world.

 

The claimant served a claim on the lady, when she was visiting a horse race for one day in England and the court found this to be acceptable to hear the claim in an English court.

 

I think the situation is a lot different in some countries courts, where they do not want to hear about debts incurred in other countries. Perhaps those in debt should think about whether it is a good idea to come to the UK, as the debt may follow them.

[Rebecca H]

Hi everyone,

Just wanted to let you know that I sent in a defence to the court and part of that was that both parties had to mediate to try and settle the matter out of court. I heard nothing until 2 days before the time limit was up and I am very pleased to say that Credit Corp have dropped all proceedings with both parties to bear all costs. I agreed to this, asked for a consent order form the court and the matter is now over!!

 

So, don't give up, it's a numbers game and the last thing they want is to go to trial as it costs them money and if have nothing then it's not worth their while.

 

Thank you for all the help I received on this site.

[unclebulgaria67]

Good news and hope this is the last you will hear. It would be interesting to know the basis of the contract between Stevensdrake and Creditcop. It is not unknown for Solicitors to do deals with creditors, where they profit share from what they get back from debts, after costs. If they were going to incur costs and may have ended up not getting much of a settlement, it was probably not worth it for either Stevensdrake or Creditcorp.

[Andyorch]

Excellent news Rebecca...I am delighted that this has been resolved...seems to have gone on forever.

 

Well done and well done on your persistence...thread title amended to reflect the outcome.

 

Regards

 

Andy

[citizenB]

Excellent news -

[krios]

Good news and well done on seeing it through. Gives hope to others in the same situation.