The agreement was in standard form providing for the payment of fifty-nine instalments of R The plaintiff alleges and it is not disputed that the first defendant fell into arrear with payments in terms of this agreement as a result of which it has lawfully cancelled the agreement.
It accordingly issued summons against the first defendant claiming return of the motor vehicle, damages, interest and costs. The second defendant is joined in the action on the grounds that he is a surety for the debts of the first defendant. Although the notice of application refers to both the return of the vehicle and damages it is apparent from the affidavit in support of the application that the application is one directed solely at the first defendant in which summary judgment is sought in respect of the prayer for return of the motor vehicle.
It is on that basis that the opposed application was argued before me. The first preliminary defence is an allegation that the application is defective because the deponent to the affidavit in support of the application is not a person who could properly depose to that affidavit. Third, it is said that an approach has been made to a firm of mediators and accordingly that the summons is premature. I will deal with each of these defences in turn. In this case the deponent to the affidavit is the Manager: Asset Loss Recovery of the plaintiff.
As a result she alleges that those facts are now within her personal knowledge and she is able to swear positively to those facts.
BMW CHINA HEADQUARTER – BEIJING.
The challenge to her capacity to depose to the affidavit is on the basis that she would not be familiar with the day-to-day accounting records of the plaintiff, nor would Cyprus binary options be aware of the pre-legal aspects of the negotiations between the plaintiff and the defendants.
As to the former, the deponent claims to have familiarised herself with those records and I can see no basis for disbelieving her on her oath. However that puts the cart of the defence before the horse of the claim.
The claim is not based on the sale of a defective vehicle but on the sale of this particular vehicle. Whether it is defective and whether that gives rise to any defence is irrelevant to the question whether the deponent to the affidavit in support of the application for summary judgment is suitably qualified to depose to that affidavit.
In my view she manifestly is and the challenge to her authority must fail. Instead reliance is placed upon the fact that in the particulars of claim it is said that the first defendant changed its domicilium citandi et executandi in accordance with a letter annexed to those particulars, dated 10 July and written on behalf of the first defendant by the second defendant.
The affidavit does not say to whom the earlier oral communication was made or on what date.
It does not say who made that communication. Lastly it does not say when the notice came to the attention of the defendants. All that one can tell from this affidavit is that on an indeterminate date an unidentified person is said to have told another unidentified person, allegedly authorised to receive this information, that the first defendant had changed its domicilium address.
However, it faces a further insurmountable hurdle. That is to be found in the provisions of clause As such it seems to be a sensible provision directed at avoiding the very type of contention that is now advanced on the tenuous basis I have already described.
Section 90 of the NCA sets out in some detail the provisions of a credit agreement that are unlawful and of no force and effect. They do not include a provision such as that in clause No other basis was suggested for invalidating or ignoring this clause. This defence must accordingly be rejected. It is debatable whether this letter in fact reflects that Commercial Mediators cc were appointed to act on behalf of binary options 60 strategy first defendant as opposed to the second defendant.
However as it refers to the account number of the first defendant I accept in favour of the first defendant that it was written on behalf of both the first and second defendants. The only reason for that would have been to repossess the motor vehicle.
On that basis alone this defence must fail. It is plain on the facts of the present case that the consumer had not responded to the notice within the ten days provided and there is no allegation to the contrary.
BMW KEMPTON PARK.
There is nothing in the NCA that compels a credit provider to accept a belated and out of time response to its notice. Nor is there anything in the NCA that prevents a credit provider from exercising its right to cancel an agreement once it is lawfully entitled to do so merely on the grounds that there has been a reference, however belated, to an alternative dispute resolution agency.
The matter was only referred to Commercial Mediators cc on 10 Julyby which stage it is apparent that the decision to cancel had been taken and steps were physical address bmw trading to repossess the vehicle, could not affect the exercise of that right. That was simply too late and did not operate to deprive the plaintiff of its accrued right to cancel the agreement. I have difficulty with the notion that where a consumer responds to this invitation binary option border timeously referring a matter to an alternative dispute resolution agent it is open to the credit provider to continue with its cancellation of the agreement on the basis that such a reference is impermissible.
However, as in this case, the response to the invitation was out of time and clearly at a stage after the plaintiff had elected to cancel the agreement as it was entitled to do, it is unnecessary to explore these issues. It is also said that the purpose of retaining the vehicle is to provide evidence of the defects, which suggests that once the evidence is to hand the vehicle will be returned.
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If that is indeed the stance of the first defendant I fail to see why it should not return the vehicle under reservation of its rights and resist any claim for damages if the alleged defects permit it to do so.
It could either cancel the agreement, return the vehicle and claim a refund of the instalments paid by it, or it could elect to retain the vehicle and claim a reduction in the purchase price. There are indications in the affidavit that it elected the former course but in that event there is no defence to the claim for repossession of the motor vehicle.
There is no indication that the latter course is being followed. Instead there is a reference to a claim for damages.
BMW Kempton Park
That is a remarkable statement bearing in mind that the plaintiff has not yet quantified its claim and can only do so after repossessing of the vehicle. It was specifically provided in clause 3. That is what the first defendant has purported to do. In the heads of argument delivered on its behalf a different tack was taken.
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An endeavour was made to rely upon the judgment in B. The difficulty with that, however, is that the principle in the judgment is dependent upon the reciprocity of obligations. Here, the plaintiff was contending that instalments due in respect of the purchase price be paid. Those instalments were being withheld on the grounds of defects in the vehicle and a possible counter-claim for damages. Such withholding was impermissible under the agreement and there is no reciprocity between the obligation to pay the purchase price and the right to claim damages.
The situation is therefore that the first defendant was obliged to pay the instalments physical address bmw trading the purchase price and has not done so. That failure entitled the plaintiff to cancel the contract after giving the statutory notice. The existence of a counter-claim for damages does not provide a defence to the physical address bmw trading for restoration of the motor vehicle. I accordingly grant physical address bmw trading judgment in the following terms: 1 The first defendant is physical address bmw trading forthwith to return to the plaintiff the BMW i motor vehicle with chassis number OP and engine number AH, failing which the Sheriff is authorised to physical address bmw trading the vehicle wherever he may find the same and to hand it to the plaintiff.