Section 75 - Builder not completed work - Jan 2020 - UPDATE (2) OCTOBER 2020

hoth0416

born_again said:

Is that a full refund of the payment on the credit card?
If that is the case then they will be doing a chargeback. Which can be contested.
And is in no way a admission of any merit other than it meets the chargeback criteria.

Nope - as only paid a small deposit on the CC. They are willing to refund the full agreement cost (c.£10k - most of which was paid by bank transfer). My claim was made after the chargeback time limit (transaction was last summer).

CRISPIANNE3

Apologies for this being off subject but wanted some plastering done and went via rated people and the guy came out and quoted for the work. Seemed reasonable enough. However he was so messy and left the house in an appalling state and never cleaned up after.  Now we only use people that have been recommended by word of mouth. We are now having a completely new bathroom and the guy recommended to us said he would not require any monies up front and works on a mutual trust basis. 

hoth0416

hoth0416 said:

I will respond to the CC company and keep you all updated.

Hi all
(Background here)
Update
I sent the CC company a response to state that i should be put in the position if the contract was done properly.

I've had a response from the CC company. They have not changed their initial offer, and say that they think this is fair and reasonable, given what work originally took place. They've said due to the "extra amounts I want to improve my claim" they think this would be best resolved though the courts. They've also said the CC company could be a co-defendant.

Current position
My understanding is that I have an equal claim against them as I do the builder. And that I don't want any extra amounts, just what is required to put me in the position of if the contract was done properly. I appreciate this amount is much higher than the original contract amount - but I'm not sure whether that should make a difference!?

 Any advice on how to go back would be appreciated. 

eskbanker

Sounds to me like you're in essentially the same position as you were in August, as detailed on the previous page, and therefore the options open to you remain the same too, i.e. go down the FOS route (assuming the card company's response is final) or engage legal advice.  As the former is free of charge, that seems the more obvious choice, although as you anticipated before, it's unlikely that it'll be a quick process....

hoth0416

Yes you're right - pretty much exactly the same..! 

The card company hasn't said this is their final response (though not sure whether that's as they want to see whether I take this before, or they just haven't said those words yet).

I agree my next step if this was their final response would be the FOS. I suppose in that case I pushback using the same legal standpoint as before and see if they budge, if not, on to FOS.

I found the court point to be a bit of a curveball, as my claim is against them, and they are telling me to make a claim against the trader to which they would be a co-defendant! As the company is now dissolved I don't see how that would work in any case (can't see them having any assets even if I somehow got the company restored!).

I'll send through a response just reiterating my legal standpoint (i.e. claim is against them, they have agreed there was a breach, remedy is putting me in the position if the contract has been done, fact cost is more than the original contract shouldn't make any claim 'unfair' (as i haven't tried to be excessive at all!)).

Let me know if you think there is anything I'm missing!

born_again

Thanks for the update.
Deleted due to posting information in a wrong thread.

hoth0416

born_again said:

 You could find that on that basis that they are prepared to put you back in the same position (pre purchase) that FOS will find in their favour. Possible that a court would take that view as well.

Sorry if I'm misunderstanding, but this seems to contradict what I understood the remedy for breach of contract to be.

There is a distinct difference between:

(a) Putting me in the same position pre-purchase (i.e. the CC provider's current position and what you have noted above) = £10k

and

(b) Putting me in the position I would have been if the contract had been performed (As eddddy noted in his post - quoted below) = £25-35k

eddddy said:

S75 makes the CC company jointly liable for breach of contract by the builder. A remedy for breach of contract is damages:

Thus the overriding aim of an award of damages arising from a breach of a contractual obligation is to put the innocent party 'so far as money can do it…in the same situation…as if the contract had been performed' (Robinson v Harman)

Link: https://www.lexisnexis.com/uk/lexispsl/disputeresolution/document/393747/5CK4-1SG1-F18B-703K-00000-00/Contractual_breach_damages_and_remedies_overview

So based on what you say, the CC company should be paying you enough money for you to pay somebody else to do all the work that the builder contractually agreed to do - i.e. £25k - £35k.

If the CC company won't pay, ultimately you can make a complaint to the Financial Ombudsman Service or take the CC company to court.

Apologies if I am confusing two different concepts, but which outcome would the FOS/Court likely view a breach to result in?

eddddy

hoth0416 said:

Apologies if I am confusing two different concepts, but which outcome would the FOS/Court likely view a breach to result in?

Based on what you say, the compensation should be £25k to £30k - to put you in the position you would have been if the contract had been performed.

There are loads of references to this on the internet that you can Google, here's one example:

Contractual breach damages and remedies—overview

The normal function of damages for breach of contract is the same as that in tort, namely, compensatory. The aim being to compensate the true loss suffered by the innocent party and place them in the same position, so far as it is possible to do so using only money, as if the contract had been performed. 

Link: https://www.lexisnexis.com/uk/lexispsl/disputeresolution/document/393747/5CK4-1SG1-F18B-703K-00000-00/Contractual_breach_damages_and_remedies_overview

But it would be up to the court to decide, based on the facts of the case (and how compelling the evidence is that you provide, etc)

born_again

Deleted due to posting information in a wrong thread.

eskbanker

born_again said:

They are prepared to pay the full cost of the trailer, so you are back in the same position as if you had not bought it. (you have also has a few months rental use out of it as well)
So if they have to pay out more to get it repaired...

born_again said:
Hard one to judge. Could go either way. But one worry from my point of view is you are using this as a business. Are CC aware of this? Which may make someone view it in a different light.

????

Are you posting in the wrong thread?  This one is about building and gardening work....