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Help with defence please!

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  • Help with defence please!

    Anyone out there able to help with my ex's problem?

    She has drafted the below defence, but i don't know enough about this type of thing to help. This is what she has sent me.

    Hi ....

    Thanks for seeing what you can do to help. The solicitor is really busy and haven't got back to me to let me know whether or not they can help. It's nearly time for me to submit my defence, and im at a loss as dont want to be caught out with not having submitted a response in time.




    1. I, ............,the Defendant, is a leaseholder in a building containing .... flats ,at............ and which is now a Tripartite Lease.

    2. Save as specifically admitted in this defence, the defendant denies each and every allegation set out in this particular of claim.


    3. the defendant, received the claim form, Claim No: ................. from the.................... on ...........2019.


    4. the defendant denies that monies are owed to the Claimant as alleged in the Particulars of Claim


    5. The Claimant states in the Particulars of Claim that their claim is based upon the defendants failure to pay ground rent


    6. The defendant denies that they have breached the covenant referred to in paragraph (a) of the particulars of claim in that monies are owed in ground rent. On the .....19 an invoice was sent to the defendant by the claimant for ground rent/maintenance/insurance and misc etc. this document does not state that any ground rent are owed or in arrears.

    7. The defendant is unable to admit or deny the claim of breach the covenant referred to in paragraph (b) of the particulate of claim as The Claimant has failed to provide adequate information in response to the changes in the variation of the section 20 schedule of works.

    8. Under section 19(1)(a) and section 19 (1) (b)The Claimant has failed to provide details of how the service charge has been varied to enable me to properly assess my position with regards to the determination of the reasonableness of and liability of this claim.

    9. At the date of filing this Defence the Claimant has 'signed off 'on works never undertaken but specified as part of the section 20 schedule of works, and billed for.

    10. Section 19 of the Landlord and Tenant Act 1985 states that a service charge is only payable in so far Section 19 of the Landlord and Tenant Act 1985, which states that a Service Charge is only payable to the extent that the works or services are carried out to a ‘reasonable standard’ and in so far as reasonably incurred and represents value for money.

    11. Further section 19 of the landlord and tenant act states that if a leaseholder can provide sufficient evidence to suggest that costs were not incurred, but formed part of a service charge demand, then the burden of proof lies with the claimant to provide evidence that these costs were actually incurred.

    12. Having varied the schedule of works bill by at least 10% in breach of section ……(?) the claimant did not have good reasons for the decisions they made in including any such cost on the basis that these costs have not been incurred as the works were not carried out, and/or carried out all works to a reasonable standard or reasonably incurred and or that in order for works to be classed as a ‘repair’ they must be a response to ‘disrepair’.

    13. On the ........2019, the defendant made the Claimant aware in writing and provided photographic evidence of poor workmanship/work not completed/damage to my sole demise area to date not all of my concerns and queries have been responded to

    14. From the 1st October 2014 all professional property managers are equired to join one of the three Government approved statuary Redress Schemes:

    despite repeated request the Claimant has failed to provide information on their complaints procedure and information on which redress scheme they have been obliged to register with.


    15. Under Civil Procedure Rule 16.5 (4) Where the claim includes a money claim, a defendant shall be taken to require that any allegation relating to the amount of money claimed be proved unless he expressly admits the allegation. Therefore, it is expected that the Claimant be required to prove the allegation that the money is owed as claimed. further if a Lease allows for a type of cost to recharged, that does not automatically mean that the amount which is charged is reasonable.

    16. The defendant requests the court orders the Claimants to provide the necessary documentation/evidence in response to my original queries in order for me to fully plead my case else the Claim should stand struck out.


    I7. In the event that the relevant documents/evidence are received from the Claimants I will then be in a position to amend my defence, and would ask that the Claimants bear the costs of the amendment.

    18. It is denied that the Claimant is entitled to the relief as claimed or at all.

    Statement of Truth

    I believe the facts stated in this defence are true.
    Tags: None

  • #2
    I have added in/amended the following.


    13. On the ........2019, the defendant made the Claimant aware in writing of ‘unreasonableness’ breach of section 20 and tort interference …….. of my sole demise


    14. on the ……….2019 the defendant provided photographic evidence of poor workmanship/work not completed/repairs not undertaken/damage to my sole demise area to date not all of my concerns/queries/complaints have been responded to and remain outstanding

    15. from June 2019, the Claimants has refused to accept further monies properly paid to the claimant via standing order since 2001 and covering service charge costs.

    Comments/pointers appreciated




    Comment


    • #3
      You'd need to post up to particulars of claim to know if the defence responds. She's defending a claim to pay ground rent and a share of cost of works ( which were undertaken but unsatisfactorily) ?

      ( your additions are more for a witness statement)


      “We may not win by protesting, but if we don’t protest we will lose. If we stand up to them, there is always a chance we will win.” Hetty Bower

      Any support I provide is offered without liability, if you are unsure please seek professional legal guidance.

      Received a Court Claim? Read >>>>> First Steps

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      Find Solicitors offering fixed fees on our sister site - JustBeagle.com

      Comment


      • #4
        Do you know the issue date of the claim? And did she acknowledge with intent to defend?
        “We may not win by protesting, but if we don’t protest we will lose. If we stand up to them, there is always a chance we will win.” Hetty Bower

        Any support I provide is offered without liability, if you are unsure please seek professional legal guidance.

        Received a Court Claim? Read >>>>> First Steps

        If we have helped you we'd appreciate it if you can leave a review on our Trust Pilot page

        Find Solicitors offering fixed fees on our sister site - JustBeagle.com

        Comment


        • #5

          Hi Amethyst

          many thanks for you help.

          OK i have some more information

          Claim acknowledged
          defence due in by 22/8/19

          she needs to pose her defence to show unreasonableness of the service charges so that the judge refers the case to FTT(?) instead of the case being heard in county court.

          this is what she has emailed

          Please bear with me, im not the best of this IT stuff. below is copy paste

          body of POC

          the claimant is the freehold owner of a building consisting of residential flats at.......

          by a lease dated.... and made between......

          the lease contains the following covenants
          (a) by clause... that the lessee will pay the ground rent to the lessor
          (b) by clause...that the lessee will pay a service charge to the lessor
          (c) by clause... that the lessee will pay on demand all costs charges and expenses incurred by the lessor, under or in contemplation of any proceedings in respect of the flat under section 146 of the law of property act 1925, or in the preparation or service of any notice thereunder, notwithstanding that forfeiture is avoided otherwise than by relief granted by the court

          in breach of covenant referred to in paragraph 4(a) and (b) of these particulars of claim, the defendant has failed to pay ground rent and service charge in the sum of £..... a statement prepared by the claimant is attached to these particulars of claim showing how the aforementioned sum is arrived at.

          further as a result of the said default, the claimant has incurred legal costs falling with the terms of the covenant referred to in a paragraph 4(c) of these particulars of claim. as at...... this costs were........

          the claimant claims interest upon the unpaid ground rent and service charge pursuant to section 69 of the county court act 1984 at the rate of 8% pa.

          the claimants claim
          judgement for unpaid ground rent and service charge in the sum of....
          judgement for legal costs in the same of....
          judgement for interest pursuant to section 69 of the county courts act 1984 in the initial sum of
          further costs pursuant to the terms of the lease and cpr part 44.5

          statement of truth
          the claimant belies that the facts stated in these particulars of claim are true. i am duly authorised by the claimant to sign these particulars of claim on its behalf

          signed
          full name
          address for receiving docs
          ref
          dated


          The above is the total document.

          the POC is a lot shorter than my ex's response, but she is saying that she need so show the court why she has with held payment to date and wants the matter referred. (which she thinks the courts have the power to do?)

          she apparently has been told its a lot harder to get redress for the poor work/work not done and charged for (i said that i thought this was fraud?) and interference/impedment of her sole demise areas (which apparently they have semi acknowledged and that they failed to supervise the works properly which is why there were all the problems) if she pays and tries to fight them after???

          anyway i digress...







          Comment


          • #6
            Hi again

            Yes she stated on the return claim form that she intended to defend, hence the draft.

            I think she needs to counterclaim for the demise interference stuff that she has photograph evidence of (before/ during and after) if the judge will not refer to the FTT - but i don't know.

            The only bit of advice i have been able to give her so far is that i suggested that she gets a surveyor in of her own, and she has now arranged this.

            i will continue to copy/paste what she sends if that's OK?

            Comment


            • #7
              Hello

              This question is linked to another thread, but not sure if this should be merged or can stand alone for ease for others with the same type of query if this bit is separated out?

              If a claim has been received, but there are grounds to counterclaim

              can you include your counterclaim arguments without making a formal counterclaim (which incurs a fee) as part of the defence?
              or must a separate counterclaim always be made and fee paid?

              when is the latest time that you can state a counterclaim case. i.e if there are grounds for a counterclaim must this be done by the/or at least at the same date that the defence must be returned to the courts?

              my apologies if this is not entirely clear - its been a long night for me providing support.

              It is not my intention to cause unnecessary work for the administrators of this site, as i wholehearted appreciate and value all their hard work and input. i apologise now and accept any reprimand if i have acted inappropriately by asking this question as part of this thread and also separately.

              Comment


              • #8
                OK update and sharing of information

                For those who may find themselves in a similar situation note the following

                LEASE have a template later on their website which should be sent to the court and/ or attached to the defence. Their template is not instead of a defence as a defence must still be submitted alongside.

                Is Amethyst or another Mod about to help guide drafting/amending the above defence?

                Comment


                • #9
                  Hi

                  Anyone about at the moment to help with this Please?

                  Comment

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