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IN THE LUTON County Court
Claim number 2QZ22139
Luton County Court
2nd Floor, Cresta House
Alma Street
Luton
Bedfordshire
LU1 2PU
Tuesday, 15th January 2013
Before:
DEPUTY DISTRICT JUDGE MCCOURT
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SK------
Claimant
-v-
FRESH START LIVING LIMITED
Defendant
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MR STEPHEN DYER (of Neves & Dyer) appeared on behalf of the Claimant.
THE DEFENDANT did not attend and was not represented.
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DEPUTY DISTRICT JUDGE MCCOURT: I should say, Mr Dyer, as is customary, this hearing is being recorded. You may not know that, Mr Dyer. You represent the claimant, Mr Skinner.
MR DYER: That is correct.
DEPUTY DISTRICT JUDGE MCCOURT: And you may not know that yesterday there was an email from Fresh Start, from one Hannah Jones, apparently, said to be for and on behalf of Chris Hutchinson, in-house lawyer. "Please note that there is nobody for the company available to attend the proposed hearing at Luton tomorrow. We apologise for the late notice provided. If we are able to arrange, can you please advise how?" It is not for the court to advise parties. The parties, if they are making applications to set aside judgment, they should surely, of course, attend. Have you had any correspondence, Mr Dyer?
MR DYER: No. I had late instructions on this matter. I know what it is about. All I have seen is an application to set aside which says…
DEPUTY DISTRICT JUDGE MCCOURT: Let me tell you. I have a limited file and there are cryptic notes. The claim is for a £15, 000 deposit for A failed property purchase, plus interest and costs. "Fresh Start Living Limited represented to me verbally and by way of email that they had acquired a property known as Victoria House, Milton Street, Nottingham. FSL verbally stated that the property conversion would be completed by September 2011. On 30th June 2011, FSL by way of email set out the time scale for exchange and completion. Based on these representations, on 7th July 2011 I signed an agreement to purchase. My solicitor…" That was not you at that time, was it?
MR DYER: It was.
DEPUTY DISTRICT JUDGE MCCOURT: It was you. "My solicitor later discovered FSL never owned this building and may never be in a position to purchase it". Is that correct?
MR DYER: That is correct.
DEPUTY DISTRICT JUDGE MCCOURT: "FSL refused to refund our deposit, which is unreasonable". So there was a judgment in default. It appears that that process was quite proper, i.e. the judgment was a regular judgment, because the application says so. The application is signed by one Philip Wright, whose status in the company is not made known to me - or to you, presumably.
MR DYER: No.
DEPUTY DISTRICT JUDGE MCCOURT: He says, "We missed the time frame stated in the CPR due to an administrative error by one of our temporary employees." This takes the case out of CPR 13.2, which, of course, is the provision for irregular judgments and I am left with an application. I am not going to adjourn this matter. I am going to deal with it. That means that it is under CPR 13.3, cases where the court may set aside a judgment entered under part 12. "The court may set aside a judgment entered under part 12" - that is the default judgment, of course. It was a default judgment, was it not?
MR DYER: Yes, That is correct.
DEPUTY DISTRICT JUDGE MCCOURT: I should for completeness say that judgment was on 1st November. "If the defendant has a real prospect of successfully defending the claim or it appears to the court that there is some other good reason why the defendant should be allowed to defend the claim".
All we have from the defendant is the application which simply says - this is Mr Wright's statement in support of the application - it confirms the administrative error and then says, "The judgment came as a shock as we wished to robustly defend the claim that has been served upon the defendant company. I believe, if the courts were in receipt of the full written and incidental evidence, they would not have come to this decision". That does not help me. There is no reason, of course, why the witness statement should not give me some clue as to what, indeed, the defence is and, similarly, I am not too impressed by the fact that the defendants are not here. They could, of course, have instructed a solicitor or an agent to attend.
Is there anything further that you want to add, Mr Dyer?
MR DYER: In a nutshell, I think that you have argued my case for me, sir.
DEPUTY DISTRICT JUDGE MCCOURT: Yes, because the defendants are not here, I thought it appropriate for the purposes of the record to state the reasons why I am, therefore, dismissing the application. I am going to do precisely that. I am not striking it out, I am dismissing it, because I have dealt with it. Application dismissed.
Costs, Mr Dyer?
MR DYER: I have done a very foolish thing this morning. I thought that I should bring my original file in connection with the purchase, which I took out of our archives, and I left the file that I prepared to bring to court on the side.
DEPUTY DISTRICT JUDGE MCCOURT: Are you actually on the record?
MR DYER: I was about to file the notice of action. I had all that prepared and left it in my office in Hitchin.
DEPUTY DISTRICT JUDGE MCCOURT: Right. I am going to make, I think, the appropriate order.
MR DYER: The costs that I worked out this morning were £546 plus VAT.
DEPUTY DISTRICT JUDGE MCCOURT: Well, you are not on the record.
MR DYER: So I am in difficulties.
DEPUTY DISTRICT JUDGE MCCOURT: You have not prepared a schedule, so I am going to say no order as to costs. Should this proceed, no doubt you will file notice of acting and away we go, but I think that the defendant will now have an uphill struggle as the defendant has, of course, voted with his feet by not attending. There we go. Application dismissed.
MR DYER: I am obliged, sir.
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University & UBU Urge Caution Over Colonnade House (‘The Fort’)
The University of Bradford and UBU are warning students to exercise caution before signing
up to live in the former Colonnade House.
Student accommodation development Colonnade House, which was plagued with problems since
its launch last September, has been rebranded as ‘The Fort’.
However, West Yorkshire Fire Authority has advised that there is still a prohibition
notice preventing occupation of the property, which is now being widely advertised for
2013/14. The notice will remain in place until the Fire Authority is satisfied that all
necessary fire safety works have been completed.
Moreover, ANUK/Unipol has confirmed that the development is not covered by the National
Code for Non Educational Establishments and that Fresh Start Living remain suspended from
the National Code’s membership process. No further decision on FSL’s application for
membership of the Code will take place until the building has re-opened AND it is clear
who will be managing it on a day-to-day basis.
To this end, the University of Bradford and UBU would currently advise that students do
not sign contracts for this property irrespective of any special offers or competitive
prices.
Colonnade House residents were forced to leave the accommodation last October after the
Fire Service prohibited use of the building.
On top of this, residents reported a string of issues including
Inadequate or no heating in rooms
Leaks in bathrooms
Internet problems
Faulty smoke detectors
Broken lifts
Faulty lighting
Piles of rubble
Inadequate fire evacuation information
Promised facilities such as a gym, prayer space and communal area did not materialise
Inadequate ventilation in kitchens One washing machine in the whole development When
tenants raised complaints, they were not happy with the responses given by staff and did
not feel confident their problems would be resolved.
Tenants were forced to leave the accommodation at very short notice and were initially
told they had to find their own alternative accommodation. When they were allowed to
return a few days later, they believed they were being allowed back permanently. They were
then given a few hours’ notice to move all of their belongings, for which no assistance
was provided and they could not use the lifts as they were broken.
Confusion quickly set in amongst the tenants, some of whom had paid a full year’s rent and
yet were being told they had to pay for their own alternative accommodation. The
University’s accommodation services team worked swiftly to ensure that all tenants were
accommodated and would not have to pay two lots of rent.
Since then, the confusion worsened, with tenants being led to believe they could move back
to the accommodation until the university was eventually informed in January that the
property was being closed down and that the tenants could not move back.
Students were advised by Stephen Anderson, a solicitor from Hatch Legal, that he believed
there had been a fundamental breach of contract and that students could terminate their
contract and take up accommodation elsewhere.
Despite the accommodation team’s best efforts, to this date some tenants have been left in
the dark as to whether they will receive back rent owed to them, let alone compensation
for the distress and inconvenience caused.
Throughout the process, the landlord – Fresh Start Living – has been almost impossible to
communicate with, while the letting agent, RMG, has itself apparently been kept in the
dark as to the situation.
Students have, understandably, been left stressed out and anxious by this situation, with
many feeling their studies have suffered as a result.
One student told us: ‘Colonnade house was the first accommodation in the UK for me as an
international student. I experienced so many difficulties living there; showers and toilet
not working properly, lift out of service most of the time and it made going to and coming
from uni very difficult (walking up stairs to 7th floor). The most disheartening of all is
the fire alarms were not working and I virtually could have got burnt any time. Moving
impromptu from there cost me a lot, I had an exams the next day and virtually failed my
exams.’
A fellow tenant agreed and said: ‘I cannot put into words how living at colonnade house
disrupted my time at university. We were put up in a hotel for 4 days though some may
think this would be a nice experience; it was greatly troubling and to not be around your
books and a familiar area of comfort whilst completing essays was daunting. (The hotel we
stayed in was not paid for and they soon started to ring the students who stayed there
requesting £4500 for our stay). We were told to get what we could carry from our rooms and
at 7 o'clock at night walk through Bradford's red light district with all our possessions
as we made our way to the Green. Needless to say many of us soon after became ill with
exhaustion and had to hand in extenuating circumstances as we just could not settle into
our new environment and work whilst ill. Just to write this email makes me furious with
the situation. We never revived a penny from whatever company ran the accommodating or an
apology. Big thank you to the accommodation team at the Green and the University that was
more than helpful in our time of need.”
Another student said: ‘Although Internet had been advertised there was none; in fact none
of what was advertised was there. There were no fire safety systems and security were
useless with local prostitutes following us into the building to try and take money from
us. We were unlawfully evicted which for me was extremely stressful.’
The University, which provided temporary accommodation during the period of uncertainty,
has yet to be paid by Fresh Start.
The University and UBU Advice Centre advise all students to only rent with landlords who
are accredited by Unipol/ANUK.
If any students have questions about Colonnade House or the Fort, please contact Julie
Hartley in accommodation services on j.hartley@bradford.ac.uk or the UBU Advice Centre at
ubu-advice@bradford.ac.uk
UBU Advice Centre offers advice on a range of accommodation issues and problems as well as
a contract-checking service.
FreshStart subsidiary facing winding up petition
A WINDING up petition has been filed against a subsidiary of the Salford property developer FreshStart Living.
The case against FSL Properties Montgomery will be heard in Manchester on Monday.
The business was set up in 2011 to buy Montgomery House, a former YMCA building in Whalley Range, south Manchester, which FreshStart turned into student flats and sold on to individual investors.
Last year FSL Properties Montgomery sold the freehold to Stratford-upon-Avon-based property group Marden Ltd for £930, 000.
But a petition is being brought against the company by Dr Ahmed Al-Sened of Wilmslow, who is being represented by Manchester law firm EOS.
FreshStart claims Dr Ahmed Al-Sened is not a creditor and it plans to defend the action when it is heard in court.
In January the building's management company, FSL Management Montgomery, was wound up following action by investors who bought flats in the block but said tenants' rent was not being passed on to them.
Accountancy firm RSM Tenon has been appointed liquidator by the Official Receiver and claims £140, 000 has not been paid. Management of the building was handed over to Hertfordshire-based Residential Management Group before Christmas.
Meanwhile, it has emerged that a FreshStart student scheme in Bradford was shut down in November for breaching fire regulations.
Following an inspection of Provident Financial's former headquarters, Colonnade House in Sunbridge Road, West Yorkshire Fire Service issued a prohibition notice. The fire service said there were inadequate means of escape and inadequate means for giving warning.
FreshStart acquired the nine-storey 1960s building in 2011 and was converting it into 200 student rooms. At the time of the inspection only the top three floors had been completed and were occupied by up to 70 students who were forced to move out.
FreshStart said a re-inspection had taken place in the past two weeks and it should be signed off soon. A register on the Chief Fire Officers Association website shows the notice is still in force.