statutory demand dismissed how to challange

[steveeasy]

Re: statutory demand dismissed how to challange

Hi,
I understand it is a little odd, we went to see this solicitor today. we told him the truth in what happened. he said, the landlord entered in to a partnership kind of thing when we started applying for funding. because of this, something called (a spone) protected us from claims regarding arrears. the landlord had more than an obligation to tell us what happened to the funding, he should have askedus, discussed with us. what he did was lie and hide the fact he had kept it.


he believes the creditor ?landlord knows if he bankrupts my parntner she will have no claim whatsoever. this right would go to the trustees. silly thing is my partner has no interest in takeing him to court. she just wants to work to survive, not be made bankrupt.

thanks

steveeasy

[Debt Camel]

Re: statutory demand dismissed how to challange

Hi,
I understand it is a little odd, we went to see this solicitor today. we told him the truth in what happened. he said, the landlord entered in to a partnership kind of thing when we started applying for funding. because of this, something called (a spone) protected us from claims regarding arrears. the landlord had more than an obligation to tell us what happened to the funding, he should have askedus, discussed with us. what he did was lie and hide the fact he had kept it.

So what does your solicitor say you should do?

[steveeasy]

Re: statutory demand dismissed how to challange

Hi,
to recap. we had a landlord. we spent four years applieing for funding,we did all the work. the landlord got the money and then told us he had given it back. we found out a year later he had kept it. he was made to give it back.

this very expensive solicitor that we can no way fund, says we entered in to a quaza partnership. we had every right to the money as he did. he said something about a spon (that prevents a partner from seeking rent arrears. he was shocked it was not set asside, but blamed me from representing my partner.

he has told us we should appeal the judges decision. it will cost 7=10,000 with a barrister. if we dont we cant sue the landlord for the above. he suspects the landlord knows only too well and that is why he is trying to bankrupt my partner.

Incidently the police are hopefully going to look at it briefly. Im still not sure what to do, ive been told if successful we will probably get 60=70% of costs back. so it is risky for us, we dont have anything, and its risky for the landlord cos he might just backfire on him.

what do you think ?

the landlord is part of a few farmers who have committed fraud and is still being covered up, Id so like to expose them and potentially get the gallows out.

steveeasy

[steveeasy]

Re: statutory demand dismissed how to challange

hi,
this is starting to make sense unless im wrong. how many people enter in to an agreement with a joint goal only to be done other through no choice.

what I think im being told is. both the landlord and tenant entered in to a quazi partnership with a goal at the end. not a proper partnership. this gives each party rights. in our case that partnership was breached by takeing the money. then the landlord tries to recover arrears he earlier waived verbally to obtain the finding.

still have no idea what the spon is(it was very important though. this is why they think we need a barrister.

[Amethyst]

Re: statutory demand dismissed how to challange

Thanks, have been reading the report you send me.

For this Stat Demand and Bankruptcy petition we need to step back from that though and look at it clearly.

Take it back to the basics as the Judge would have done.

The Stat Demand stated £43k. You provided bank statements proving you had paid it.

What was the argument in response to that ?

How much were the arrears as you understand it at the time the Stat Demand was issued ? (ignoring all the other issues/partnerships/counterclaims etc)

I do not know what a Spon is either I'm afraid. I have asked someone to come have a look.

[steveeasy]

Re: statutory demand dismissed how to challange

Hi,
i wish I had copy of stat demand. it was very simple.

A lease dated april 2011-2014 total rent due 105,000

arrears 43,000

we provided proof we had paid the rent in full during that lease with bankstatements.showing every month we had paid.

we explained in righting we had an earlier lease 2006=2011. we had arrears in that period. and that they were waived.

the landlord agreed tp waive them as we were preparing a joint application for funding for 400,000. he could not get it without us.

as well as this we had a counter claim triable in a court with evidence. our landlord committed an act of fraud in accepting 123, 000 to support our business and told us he had given it back. we found out a year later he had kept it. he was made to give it back.

the link is the farmer agent was the AGENT THAT PREPARED THE APPLICATION THAT YOU ARE READING ABOUT. INVESTIGATED FOR FRAUD. ANOTHER FARMER IS IN THE LINK TOO.

STEVEEASY

[steveeasy]

Re: statutory demand dismissed how to challange

Hi,
the judges view was I acknowledged my partners arrears in an email. he would not consider the counter claim as I had not done anything since 2012. however he was happy to accept with no form of evidence arrears going back to 2006.

I reiterate the stat demand was 2011-2014 only

steveeasy

[Amethyst]

Re: statutory demand dismissed how to challange

So were the £43k arrears those from 2006-2011 ?

okay crossed posts.

Is the Landlords case that part of the rent payments (that evidenced you had paid in full 2011-2014) were going towards paying off the arrears from 2006-2011, thus leaving you with £43k arrears in the 2011-2014 period.

[steveeasy]

Re: statutory demand dismissed how to challange

Hi,
yes. these arrears that as yet we have not seen any account off. in 2009 he agreed to waive, as my partner had had enough and wished to assign her tennancy on. he did not want that as he wanted a grant of nearly 400,000. you will have seen this in the report as an unsuccesful application.

we then again applied and was offered 123,000. he then told us he did not want it and had given it back.. we found out nearly a year later he had kept it.

Cutting through the mess. if a real dispute exists over debt then the judge should set it aside. even if the debt did exist by shifting it from one lease to another. what is so wrong with the counter claim. my partner spent 4 years to obtain funding for her business, and then she was lied to. it should be dealt with in a court. the arrears were a consiquence of the application. keeping staff on to support an application when she could easily laid them off. its triable case and the judge would not consider it. should a stat demand set out when the debt actually occured.

thanks

steveeasy

[steveeasy]

Re: statutory demand dismissed how to challange

hi,
equitable estoppel, sometimes known as estoppel in pais, protects one party from being harmed by another party's voluntary conduct. Voluntary conduct may be an action, silence, Acquiescence, or concealment of material facts

quasi partnership, formed when to parties participate in an activity with an outcome that is mutually benificial. The estoppel acts as a shield to protect a party from being harmed by the other.

does not mean much to me. but if two parties work together to obtain funding and ultimately one of them uses thier position to the detrement of the other, this law provides a remedy for the other.(the solicitor was not interested in the word fraud, he said we entered this quasi partnership that never needed to know of because of the objectives of each party being similar)

could save our bacon. this is why a barrister is needed. why this princible could not apply to many different types of situations when people get ripped of is probally due only to awareness.

Thanks for all the respnses. i will update on this as it could well proove helpful to others. then it could just be mumbo jumbo.

steveeasy

[righty]

Re: statutory demand dismissed how to challange

If your partner is made bankrupt then any savings they may have will probably be sequestered by the trustee in bankruptcy Best to spend it now getting the judgment set aside

[steveeasy]

Re: statutory demand dismissed how to challange

hi,
Its a guessing game. its not a normal creditor. my partner has nothing, no assets. the creditor knows this and will have to pay for everything to be done. I would like to appeal the judges decision and not have my partner made bankrupt. but logic tells me why waste the money to loose an appeal.
fact is we think we have a good justified counter claim. I also have read the trusties review why the person ended up being bankrupt. my partner has worked really hard and paid everyone except this landlord who misslead us over 123,000. its not we cant pay its we will never pay.

we have nothing to loose so it is not really a very big big issue. I feel though for people who do have something to loose and with life being tuff for most it must be hell on earth for them. I wish them all good luck.

steveeasy

[righty]

Re: statutory demand dismissed how to challange

May I suggest you read this judgement of the Supreme Court
http://www.out-law.com/en/articles/2014/october/taxpayers-should-not-bear-the-cost-of-bank-failure-says-bank-of-england-as-final-resolution-framework-published.

Below is a summary of the decision. The remarks I have highlighted in red may be of some help in preparing your appeal
Supreme Court overturns liquidator's challenge to pre-liquidation security granted over golf club
08 Jul 2014The Supreme Court reinstated the decision of the Outer House of the Court of Session in Scotland in favour of Foxworth Investments Ltd, which had been granted a standard security over the Letham Grange hotel and golf course by its new owners as the previous owners went into liquidation. The Supreme Court reversed the decision of appeal court the Extra Division , which had found that the Outer House was "obviously wrong" to conclude that the hotel had not been sold at significant undervalue, removing it from the insolvent company's assets.

"The Supreme Court's decision will come as a particular blow to liquidators seeking to challenge pre-liquidation transfers for the benefit of creditors - especially where there is, as is often the case, a trail of inadequate or unsatisfactory documentation," she said. "For litigants more generally, the message could not be clearer – ensure you succeed at first instance as chances on appeal are getting markedly slimmer."
The outcome of the court proceedings hinged on whether the sale of a hotel and adjoining golf course by Letham Grange Development Company Ltd (LGDC) shortly before it was placed in liquidationwas what is known in Scots law as a 'gratuitous alienation', meaning a property transaction conducted for significantly less than market value. Under the 1986 Insolvency Act, a liquidator may challenge any transfer of property by a company within two years of its winding up and that transfer will be set aside unless it was made for "adequate consideration". However, any rights granted over the property to a third party "in good faith and for value" will be preserved.
LGDC purchased the property in November 1994 for just over £2 million. It sold it on to Nova Scotia Ltd (NSL) for £248,100 in February 2001. When LGDC went into liquidation in December 2002, the value of the property was estimated at about £1.8 million.
In January 2003, NSL granted a standard security over the property in favour of Foxworth. This effectively gave Foxworth the right to the property if NSL defaulted on its debts. Later that same year the liquidator of LGDC, Mr Henderson, began proceedings against NSL challenging the 2001 sale on the grounds that it was a gratuitous alienation. He obtained a decree by default in 2009 when NSL failed to appear in court. He then tried to challenge Foxworth's security on the grounds that Foxworth knew that LGDC was in liquidation when it obtained the security and so therefore could not claim that it had obtained it "in good faith and for value". All three companies shared a common director and 'directing mind', Mr Liu.
In the Outer House, Lord Glennie accepted NSL's argument that it had assumed debts of £1.85m owed by LGDC to Liu and his family along with the sale. This meant that there had been no gratuitous alienation. On appeal, the Extra Division overturned this decision because of the inadequate documentation surrounding the transactions. The court said that Lord Glennie had "erred in law" by accepting NSL's evidence on the point, and had failed to give satisfactory reasons for the conclusions he had reached on that evidence.
Lord Reed, giving the leading judgment in the Supreme Court, restored the decision of the Outer House and allowed Foxworth's appeal. He said that although the Extra Division was correct to say that an appeal court could interfere with a judge's decision if that judge was 'plainly wrong'; this criterion was not met in the present case. A judge was not necessarily "plainly wrong" if the appeal court would not have reached the same conclusion; rather, what mattered was whether the decision under appeal was one that "no reasonable judge could have reached", he said.

"It follows that, in the absence of some other identifiable error, such as ... a material error of law, or the making of a critical finding of fact which has no basis in the evidence, or a demonstrable misunderstanding of relevant evidence, or a demonstrable failure to consider relevant evidence, an appellate court will interfere with the findings of fact made by a trial judge only if it is satisfied that his decision cannot reasonably be explained or justified," he said.
"Given the best evidence that something is not correct or that a transaction is not quite as it is portrayed is often the poor paperwork surrounding or evidencing it

[righty]

Re: statutory demand dismissed how to challange

I suggest the Judge did misunderstand the facts & ignored your very relevant evidence. Also as the matter was/is in dispute he should never have granted the order particularly as it appears you have a valid defence

[Amethyst]

Re: statutory demand dismissed how to challange

Okay. What will happen now is the Landlord will need to petition for bankruptcy against you, which will get a hearing date, and you can file an objection to bankruptcy at least 14 days before the hearing. Unfortunately there is no real timescale by which the petition for bankruptcy needs to be brought so it could be hanging over you for a little while.

It isn't advised to try and appeal the decision from the setaside hearing

In between times it is a good idea to try and engage with the landlord to find a mutually acceptable way around this, although I'm guessing that's not really going to be possible, you should try so you can show the court you made attempts to resolve matters.