Small Claims Problem ?!?

[syvonne]

Brilliant, thanks so much for your help and advice ... very much appreciated.

[syvonne]

Just to update, had a reply from Moxhull Hall stating that the company we have the contract with is Annabella Catering Ltd, so I’m guessing this is now the entity to put the claim in against ?

[ostell]

No! Anabella Catering are reporting as a Dormant company ! They are officially not trading and the accounts show nothing. He would love you to claim against that. As none of your invoices receipts etc have mentioned Annabella Catering then you could not have a contract with them. Go ahead as a claim against him personally and a second defendant his wife.

If the claim goes in and his defence is the wrong entity is being claimed against then you show the court the Companies House page showing that it has been dormant since inception and your receipts that make no mention of the company. Here's a link to the companies house page Companies house might be interested in a dormant company actually trading, together with an error elsewhere in their filings.

Celestine

[syvonne]

Right ok, well spotted !! ... I’d have missed that as it does look like an active company yet upon looking it does say dormant ... So I will proceed against him personally trading as Moxhull Hall ? ... if it doesn’t give me the option of adding a defendant can I enter both names into the one field, ie; Name if Defendant: Andreas Kalavanas & Bobbie Kalavanas

[efpom]

I think the right thing to do is to sue the Andreas Kalavanas & Bobbie Kalavanas personallyAND Annabela Catering Ltd

In your WS you produce in your exhibits the correspondence from Kalavanas stating the your contract was with A C ltd and the companies house record that A C ltd was dormant at contract formation.

[ostell]

I don't know the answer to that one but putting 2 names in means they can't move things between them to get out of it. And just think of the things the bailiffs could remove from the hotel!

Looking through the Companies house listing they started off with 2,000 shares split evenly between them and the last return shows 1,000 shares. What happened to the 1,000?

[syvonne]

Ok, so I don’t get myself in a mess, are we saying that the suggested course of action would be:

a Sole Trader case against Andreas Kalavanas personally

a Sole Trader case against Bobbie Kalavanas Personally

a LTD company case against Annabella Catering Ltd

would all these have to be separate cases ?

as looking at mcol it only gives you the option of entering one set of details when issuing a “sole trader” case.

[ostell]

• You will claim against Andreas K t/a Moxhull Hall as he is the one sending the emails with his name and mentioning Moxhull Hall. Would be nice to get Bobbie in there.......
• At the moment forget Bobbie
• Forget any case at all against the Ltd company, they have no assets.

His defence will be that the claim should have been against the the catering company. Your response is that this is a dormant nontrading company with no assets. Or he responds that is wife is responsible but you can show he was sending the emails.

You get judgement and he does not pay then High Court in and lots to seize from the hotel.

[efpom]

There can be up to two defendants for claims issued via MCOL – for claims against more than two defendants you should contact the County Court Money Claim Centre.
https://courttribunalfinder.service....s-centre-ccmcc

[ostell]

Before you submit would you like to post up your Particulars of claim for critique before you send

[syvonne]

The below is pretty much the evidence from the CMA and what Moxhull have stated entitles them to keep the full amount of our £1,000 refund.

This is what I set out to him in an email which he simply replied to telling me I was wrong !!

Thanks





1.
The CMA therefore considers that, where a wedding was scheduled to take place between late March 2020 and late September 2020, before the original lockdown laws changed in July 2020 the parties were entitled to take the view that the wedding could not go ahead (i.e. that the contract was frustrated).
In those circumstances, the wedding contract would probably have come to an end without either party having to terminate or cancel it.
This section of this statement therefore applies to both:

• weddings scheduled for between late March 2020 and the date the original lockdown laws changed in the relevant part of the UK (see glossary of technical terms for the relevant dates in July 2020)
• weddings scheduled up to late September 2020 where, before the original lockdown laws changed, the parties took the view that the wedding could not take place

Local lockdown laws imposed subsequently in specific areas of the country may also prevent weddings in that area from going ahead on the agreed date, with the result that the contract is frustrated and entitling the couple to a refund.
2.
In the CMA’s view, where a key element of the wedding cannot go ahead without breaching a restriction imposed by the lockdown laws, or the business assesses that a key element cannot safely and lawfully be provided, the contract may be determined by a court to have been frustrated (treated by the law as having come to an end).
This is because the wedding would be radically different to what was originally agreed.
Where the number of guests who can safely and lawfully attend the wedding is radically different to that agreed in the contract, the CMA considers that the contract is likely to have been frustrated.

The above CMA statements from the Gov.uk website clearly show that the contract between the two of us is indeed “frustrated” as the wedding could not go ahead, and would be “radically different” to what was planned.
Our wedding day is not something we wanted to just get through, limp through, do on a limited basis without evening reception, without all the guests we planned to invite.

The fact that you have offered us different dates for the future is totally irrelevant, the contract was for the 10^th August 2020, that day could no longer go ahead “as planned” and even with relaxed restrictions would have still been “radically different” to what was planned.
The CMA guidelines are also very specific on the point of refunds:

Where lockdown laws prevent or prevented a wedding from going ahead on the agreed date, the starting point under the law is that the consumer should be offered a full refund (see section 1(2) of the Law Reform (Frustrated Contracts) Act 1943).
Consumers would be entitled to refunds even where they have paid what the business says are ‘non-refundable’ deposits or other advance payments.

And again, as stated above and backed up by the CMA, it is our choice as a “consumer” to decide if we want to go ahead with a reduced wedding with relaxed restrictions that would result in the wedding being “radically different” to what was booked & planned or pursue a different date for the future, we are under no obligation to proceed with these offers.

Furthermore, we certainly did not ignore communication made by yourselves, I had a back and forth conversation with Gary clearly stating why we did not attend our February appointment, and the communication ended with Gary messaging me on the 10^th March 2020 stating that we will arrange another time to meet up, so maybe the confusion is between you and your staff, as I can forward copies of these messages if required ?

I am hugely disappointed that you would even attempt to raise the issue regarding “charging for services already rendered”
You state that you have read the CMA report carefully, and go on to state:

“We are entitled to retain sums from the money you have already paid to cover our costs, and the goods or services we have already provided to you in preparation for the event”

Again, the CMA are very clear on what can & cannot be retained from sums already paid:

Unrecoverable costs
There are some costs which, in the CMA’s view, a court would not allow a business to retain when refunding consumers.
These include:

• costs which produce ongoing and re-usable benefits for the wedding business, such as general refurbishment costs for the wedding venue
• fixed costs of doing business
• duplicate costs (such as costs the business could recover from another source)
• the costs of administering a refund

Costs which produce ongoing and re-usable benefits for the business
In the CMA’s view, unrecoverable costs in this category include the costs of a venue’s general refurbishment and maintenance. These would not have been incurred for the provision of specific weddings, and the business would have the benefit of the refurbishments and maintenance under other contracts (e.g. for other weddings that do take place).
Fixed costs of doing business
The second category of unrecoverable costs which, in the CMA’s view, a business may not deduct from refunds are its fixed costs.
These include:

• costs associated with the right to operate the venue (such as depreciation or rental payments)
• general staff costs (other than those identified as potentially recoverable above)
• general IT system costs
• other general business costs (such as utility costs, bank charges and business rates)

Those are the costs a business incurs in any event, whether or not any particular wedding contract was entered into. In the CMA’s view, a court would not regard it as just to recover these from specific consumers whose weddings were prevented from happening.

The costs of administering a refund

In the CMA’s view, the business cannot charge the consumer an administration or other fee to cover the costs of making a refund required because the wedding could not go ahead.

Such costs fall outside the costs the law would allow a business to recover where a contract is frustrated.

In total, we had a 25 minute show round midweek and a pot of Tea for two !!

No other services were provided whatsoever, as addressed above, we did not even meet up for an initial appointment, so I am at a loss as to how you can deem that we “received something of value”.

We actually spent over £100 of our own money attending one of your Supper Club evenings so that we could get an experience the venue.
And even to retain such costs you would legally have to provide a detailed list stating specifically how much & what services had been paid for with “direct” connection to our contract.

Again, the CMA are very clear on this point.

If the consumer asks for a refund and disputes the amounts that the business has deducted, the consumer could take legal action to recover the remainder of the refund.

In certain circumstances, where a business tells a consumer that he or she is not entitled to a refund or refuses to refund the full amount owed, this may amount to a misleading action or aggressive practice which is in breach of consumer protection law.
Businesses, on whom the burden of justifying deductions to refunds lies, should give consumers clear and transparent explanations of how they have calculated refunds, including itemised breakdowns of costs incurred. This will help avoid unnecessary disputes.

Terms restricting refunds
A business might try to use terms and conditions which seek to limit its liability to refund consumers whose weddings cannot go ahead or to allow it to recover additional costs. The CMA considers that a court would be likely to find that such terms are unfair and unenforceable if they seek to prevent consumers obtaining refunds as set out in this statement.

[syvonne]

I have just looked at companies house and this Andreas Kalavanas is a director of a company called Annabella Catering Ltd & Annabella Ltd ... in his email he states that the contract we have is with "Annabella" ... this company appears to be active and trading ..... does this change things ?

https://find-and-update.company-info...mpany/04644507

[syvonne]

Just checked the email again and he stated that the company our contract is with is simply "ANNABELLA" but the address he has provided does not match the address listed on companies house for said company ??

[efpom]

Ask him to clarify that he says the contract is with "Annabella" - Company number 04644507

[ostell]

The catering company is dormant, is not trading has no assets, and would be pointless claiming against them

There is also no documents with the company name, apart from the last one suggesting that is the contracting party.

As suggested get him to give the company number.

Was this the address given "4 Broadoaks, Walmley" This is recorded as the correspondence address for Annabella Ltd, company number 04644507

The address for a claim can be the registered office of the company or where they do business or correspondence address

so when he comes back with a full definition of the company then claim against that, as long as it's not the catering.

Ask him for a full breakdown of the costs that he is claiming to justify retaining £1,000 for the frustrated contract. Just to show the court that you have asked the question. He may refuse or give reasons that are not allowed