I have a small claim (in small claims court) lodged on me, and I wonder what is best way to word my defence statement i must lodge with the court. Any help would be appreciated. Here are the facts.
Date of Settlement was out amended to be 13th may, 08 at my request and was agreed by Buyer conditional on a variation in the contract I signed saying "access to the house was allowed on the 12th may by Kitchen renovators"
Later the Buyer contacted the Real Estate Agent (on 9th May) pointing out that the renovators were arriving as agreed 9th may but mentioned in passing this would involved some firms of fittings and alternation i.e. semi structural modifications and Agents said in reply that this would not be allowed until settlement. He also then emailed the buyer confirming this.
As a result of this I never heard again on the issue of entry by the renovators on the 12th May.
But on the 12 May the buyers settlement agent contacted my settlement agent and said that they are now relying on the original settlement date of 7th May,08 and would charge penalty interest. My settlement agent replied that day saying we allowed kitchen renovators 'access" on the 12th May but no one turned up. As a result our settlement agent stated that in line with this penalty interest does not apply for late settlement.
The above are the main facts. It seems buyers did not proceed to send the kitchen renovators as he could not do anything permanent , as we were allowing access, not permission to make permanent changes. And therefore feel I should pay interest from date of the first agreed settlement date of 7th May. 08.
The sale proceeded to settlement on the 13th without any further correspondence or withholding of finds in respect to this dispute.
But some weeks later the Buyer issued a small court summons for the penalty interest.
Can someone tell me best way to frame my defence taking into accounts facts above. I appreciate it will be general advice/opinion , not legal advice of any kind.
If settlement was on 13 May and the purchaser is saying that settlement should have been on 7 May, isn't this only 6 days interest the purchaser is after? If that is the case, how much interest are they claiming? Is it worth going to court (or defending)?
Cheers
K
The claim is for $1500 so it is worth defending.
That would make your property worth about $7M. The purchaser must be claiming something other than just interest. What exactly are they claiming?
OK, just to get this straight, the BUYER is claiming penelty interst? What state are you in? I am in NSW and when a recent purchase went over because the vendor had not removed an item they were required to, I was told that my options were:
1. wear it, it is only a few days, or
2. lodge a notice to complete, 14 days after which we were entitled to walk away.Was I given incorrect information? I thought penalty interest only applied to the seller as they are the only ones "earning" money therefore they only ones "losing money" by a delayed settlement??? Slighlty confused?
MickAs stated in my original post, the buyer wanted the kitchen renovators access on the 12th May, 08 – this I agreed with buyer and then in turn agreed to amend settlement date to 13th May from 7th May on that condition i.e. access by kitchen renovator.
But when they subsequently learned from my agent that access did not mean that any structural work or fitting could take place, no one turned up on the 12th, but settlement proceeded the following day. But now they issue a summons for late settlement saying that settlement should have taken place on the 7th May, 08 as they could not get in to do what they wanted to do on thr 12th May, 08
In my view the issue is that is would be obvious that access doe snot grant approval for any fittings or structural type work as they do not yet own the place. My next thought is that if they felt I had not honored the access agreement, they they should have withheld funds on settlement, not made full settlement as they did and they after setttlement issue a small claims summons.
These are the issues. I am in WA.
Hi newbi
In some states the purchaser can claim penalty interest if the vendor defaults. In other states it does not apply.
Purigading, based on what you have said, if the purchaser agreed to the amendment of the settlement date to 13 May and signed that amendment, they cannot then claim that it should have been the earlier date (7 May). If the purchaser thought that you were in breach of the contract by not allowing structural changes on 12 May, they should have alleged a breach of the contract by you and then refused to settle until you had amended that breach. They cannot then turn around and say that settlement should now be backdated to 7 May and then claim interest.
If the purchaser is claiming $1500, then obviously (unless your property is worth $7mil) they are claiming for something else as well. I think that you are missing something in the claim. There must be something more. The only other thing I can think of is that the purchaser is making a ridiculous claim.
In terms of defending the claim, just write basically what you have written in this post. If the purchaser is making a ridiculous claim, just point out that 7 days' penalty interest is not $1500.
Good luck
K
Thank you, I am working out how the actual amount claimed was arrived at, but I was of the view that once settlement has been made, there is no recourse to claiming penalty interest, as you have also confirmed. But some say to me that there is still some options for the buyer to claim general damages – not sure on that.
BTW, I checked how the amount claimed was calculated. The sale was $1,050,000 and according to the Plaintiff (buyer) general condition No 4 of the contract allows penalty of 9% for late settlement which he calculated at 366 divided by 6 days which gives a claim of $1549.20. Not sure why he used 366 days not 365.
I note previous advice that this offset should have been done at Settlement – but for some reason he feels he can still pursue in the Small Claims Court here in WA. I am still a bit unsure where I can actually point out at the hearing that the settlement of the contract stops any further claim after settlement. Is is stated somewhere. I can not see where anything specific in the general terms and conditions of the sale contract (WA standard wording) mentions this.
By the way It has since come to my notice that the Buyers settlement agent wrote to my settlement agent prior to settling claiming that as he could not install his furniture he was claiming late settlement from original settlement date. My settlement agent replied that the claim was rejected as no conditions were broken as we allowed access on the 12th of May for kitchen renovator and no one came. The after that settlement proceeded.
Would that notice have been sufficient for the summons to be issued after settlement or should they (Buyers) offset settlement for amount claimed at time of settlement if they did not accept my settlement agents reply ?
Hi again Puragading
Don't get bogged down in the legal technicalities of it all. The purchaser may well be able to bring a claim in the small claims court after settlement. I don't know. I just think it is strange that it wasn't mentioned at settlement.
Any issue of whether the purchaser is actually able to bring a small claim will be decided by the magistrate. All you have to do is defend the claim. Look at everything the purchaser wrote down and then give your response. Respond to each and every allegation using the same numbering system that the purchaser used in the statement.
Smalll claims is a jurisdiction where individuals lodge their own claims and defences. Lawyers are not allowed. This means that the magistrate will help you both out. Your defence is not meant to be as articulate and all encompassing as if a solicitor drafted it. Just tell your version of events and let the magistrate decide what each party was entitled to do and whether the purchaser is entitled to penalty interest.
Cheers
K
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