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Just attended the final hearing where I was suing a creditor in the Small Claims court.
My PoC asked for:
a) A declaration the agreement is unenforceable.
b) Repayment of all interest charged to the account without agreement.
The background is that the creditor produced an agreement, which was just a signature box (with sig) where the debtor agrees to be bound by the Act. There was no reference to T&Cs nor any T&Cs shown. They had already admitted they could find no executed agreement and agreed not to enforce or pursue the balance.
The creditor did try to introduce an agreement signed by another party as evidence of what would have been signed, but the judge did not accept that and the agreement was declared unenforceable.
I argued the agreement was improperly executed from inception. The judge asked why I had not asked for return of capital payments (payments against goods supplied) in this case, to which I explained I thought it was improper to not pay for goods received. He also queried how the figure I was claiming for interest was arrived at to which I produced a few years statements (far less than the true duration of the account).
He determined that the interest I had claimed was returnable but off set it against the sum the creditor had already agreed not to pursue.
Net result - debt written off but no extra money returned for interest charged. I defeated myself!
I got the distinct impression that had I claimed back all payments made to the account from inception, including the interest, he would have considered such a claim favourably. But only on the production of comprehensive accounts and statements. My error was that the creditor had only agreed not to 'pursue' the balance, not 'written it off'. That meant the judge effectively wrote it off which more than covered the interest I had reclaimed.
During the trial, four cases were cited: McGuffick and Carey (by the defence), Dimond and Wilson (by me the claimant). During his summing up the judge commented he did not feel bound by the cases cited but didn’t identify which ones. Maybe the written judgment will clarify.
My PoC asked for:
a) A declaration the agreement is unenforceable.
b) Repayment of all interest charged to the account without agreement.
The background is that the creditor produced an agreement, which was just a signature box (with sig) where the debtor agrees to be bound by the Act. There was no reference to T&Cs nor any T&Cs shown. They had already admitted they could find no executed agreement and agreed not to enforce or pursue the balance.
The creditor did try to introduce an agreement signed by another party as evidence of what would have been signed, but the judge did not accept that and the agreement was declared unenforceable.
I argued the agreement was improperly executed from inception. The judge asked why I had not asked for return of capital payments (payments against goods supplied) in this case, to which I explained I thought it was improper to not pay for goods received. He also queried how the figure I was claiming for interest was arrived at to which I produced a few years statements (far less than the true duration of the account).
He determined that the interest I had claimed was returnable but off set it against the sum the creditor had already agreed not to pursue.
Net result - debt written off but no extra money returned for interest charged. I defeated myself!
I got the distinct impression that had I claimed back all payments made to the account from inception, including the interest, he would have considered such a claim favourably. But only on the production of comprehensive accounts and statements. My error was that the creditor had only agreed not to 'pursue' the balance, not 'written it off'. That meant the judge effectively wrote it off which more than covered the interest I had reclaimed.
During the trial, four cases were cited: McGuffick and Carey (by the defence), Dimond and Wilson (by me the claimant). During his summing up the judge commented he did not feel bound by the cases cited but didn’t identify which ones. Maybe the written judgment will clarify.
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