RESPONSES TO DEFAULT NOTICE emailed 19th February 2018

from: David Roberts <David.Roberts@davidroberts.co.uk>
to: Marc Horn <maphornoew@gmail.com>
date: Thu, Feb 22, 2018 at 9:40 AM
subject: RE: NOTICE OF DEFAULT – OPPORTUNITY TO CURE FAILURE TO DISCLOSE INFORMATION This 19th February 2018
mailed-by: davidroberts.co.uk

To: Marc Horn <maphornoew@gmail.com>

Mr Horn

I have your email of the 19 February.  I am trying to be as helpful as I can in the circumstances.

In reply

1.       The trustee of the stakeholder account is Pinnacle Student Buyers Leeds Limited not me personally.

2.       The stakeholder account was managed in accordance with the terms of the agreement for sale you entered into with the Seller (Clause 5 refers)

3.       I attach a schedule of the payments out of the account pursuant to the certificates issued by the Supervisor (as defined) as required under the sale agreement.  All monies were duly accounted for.  I can send you all of the Supervisor certificates if you wish to see them.

4.       Following the sale of the freehold in June 2016 sufficient funds were set aside to complete the construction of Austin Hall which is now practically complete and I understand occupied by tenants.  I attach the Practical Completion Certificate

5.       The sale was the only immediate way to realise sufficient funds to complete the construction (which has now been achieved) and in order to do so the legal charge in favour of the Buyers needed to be removed.  The consent of the Buyers was authorised upon the creation and funding of the Secured Deposit Deed which was done in June 2016.

6.       There were some defects in the construction of Asquith Hall (Fire stopping works I believe) which were unknown to any party until work commenced in August 2016.  This required additional remedial work to be carried out which was funded by Tuscola, the owner of the freehold and in part by Mason and Vaughan Limited.

7.       The application and management of the funds to complete the construction was handled by Hill Dickinson Solicitors in Liverpool on behalf of Tuscola and not by the Buyers Company or this practice.

I do not know the answer to any more of your questions so I am unable to assist.  We no longer act for Pinnacle Student Developments and have never acted for USL.  I do not know who authorised the tenants to move into the buildings.

I am letting you have as much information as I can as Director of and solicitor to Pinnacle Student Buyers Leeds Limited.

Expenses and Certificates

Payments

Detail

Cert Number (if applicable)

Date

Amount

Payment to:

In Respect of:

Date

Amount

Purchase price site

£2,160,000.00

Mason & Vaughan

Purchase and payment of certificates PSDL004 and 004.1

02.05.14

£2,597,213.63

Certificate PSDLL1.0

PSDLL1.0

03/04/2014

£408,083.93

Certificate PSDLL1.1

PSDLL1.1

03/04/2014

£29,129.70

Certificate PSDL2.0

PSDL2.0

08/05/2014

£513,708.31

Certificate PSDL2.1

PDSL 2.1

08/05/2014

£3,132,233.05

Mason & Vaughan

Payment of PSDLL2.0 and Part PSDLL2.1

09/05/2014

£703,412.87

Deed of Variation S106

n/a

15/05/2014

£750.00

Leeds City Council

Payment of S106

15/05/2014

£750.00

Certificate

PDSLL3.0

11/06/2014

£434,585.91

Certificate

PSDLL3.1

11/06/2014

£1,054,698.25

Certificate

PDSLL 4.0

09/07/2014

£344,502.21

Other Costs Certificate

PSDLL 4.1

09/07/2014

£508,590.44

Certificate

PSDLL 5.0

04/08/2014

£291,888.09

Other Costs Certificate

PSDLL 5.1

04/08/2014

£345,681.06

Interim Certificate

PDSLL 7.0

03/10/2014

£96,032.14

Other Costs Certificate

PSDLL 7.1

03/10/2014

£438,644.16

Interim Certificate

PSDLL 8.0

31/10/2014

£323,304.31

Other Costs Certificate

PSDLL 8.1

31/10/2014

£641,810.77

Interim Certificate

PSDLL9.0

03/12/2014

£167,336.96

Other Costs Certificate

PSDLL9.1

03/12/2014

£13,210.00

Interim Certificate

PSDLL10.0

19/12/2014

£156,810.69

Mason & Vaugahn

Part payment PDSL 2.1

28/05/2014

£513,604.00

Other Costs Certificate

PSDLL10.1

19/12/2014

£68,530.00

Mason & Vaughan

Part payment PDSL 2.1

17/06/2014

£1,195,137.01

Interim Certificate

PSDLL11.0

26/01/2015

£419,041.50

Mason & Vaughan

Part payment PDSL 2.1

27/06/2014

£779,947.00

Other Costs Certificate

PSDLL.11.1

26/01/2015

£180,603.50

PHD 1 Limited

Payment PDSLL 4.0

07/08/2014

£344,502.21

Interim Certificate

PSDLL.12.0

24/02/2015

£274,140.05

Other Costs Certificate

PSDLL.12.1

24/02/2015

£17,953.75

Interim Certificate

PSDDLL.13.0

30.03.15

£460,029.93

Pinnacle McGlobal

Payment PDSLL3.1

07/08/2014

£453,116.84

Other Costs Certificate

PSDLL.13.1

30.03.15

£19,566.85

Pinnacle McGlobal

Payment PDSLL 4.1

07/08/2014

£489,871.20

Interim Certificate

PSDLL.14.0

23.04.15

£435,291.42

Blue Ray Enterprises

Payment PSDLL 3.1 and 4.1

11/08/2014

£20,847.50

Other Costs Certificate

PSDLL.14.1

23.04.15

£257,953.75

Urban Student Life Limited

Payment under PSDLL 3.1

11/08/2014

£23,265.00

Interim Certificate

PSDLL15.0

26.05.15

£660,390.45

Pinnacle Student Developments (leeds) Limited

Payment of PSDLL 5.0, 5.1 and part 2.1

15/08/2014

£1,121,639.75

Other Costs Certificate

PSDLL15.1

26.05.15

£17,953.00

Pinnacle Student Developments (leeds) Limited

Payment of PSDLL 7.0 and 7.1

06/10/2014

£534,676.30

Interim Certificate

PSDLL.16.0

26.06.15

£538,890.26

Pinnacle Student Developments (leeds) Limited

Payment balance PSDLL 2.1

06/10/2014

£643,545.04

Other Costs Certificate

PSDLL.16.1

26.06.15

£17,953.00

Pinnacle Student Developments (leeds) Limited

Payment in full Certificate 8.0

31/10/2014

£323,304.31

Interim Certificate

PSDLL16.2

02.07.15

£78,000.00

Pinnacle Student Developments (leeds) Limited

Payment in full Certificate 8.1

31/10/2014

£641,810.77

Interim Certificate

PSDLL17.0

27.07.15

£691,170.06

Pinnacle Student Developments (leeds) Limited

Payment in full certificate 1.1

31/10/2014

£29,129.70

Other Costs Certificate

PSDLL17.1

27.07.15

£48,922.29

Pinnacle Student Developments (leeds) Limited

Part Payment Certificate 3.1

31/10/2014

£180,000.00

Interim Certificate

PSDLL.18

20.08.15

£580,503.11

Pinnacle Student Developments (leeds) Limited

Payment in full Cert 9.0 and 9.1

03/12/2014

£180,546.96

Other Costs Certificate

PSDLL.18.1

20.08.15

£17,953.00

Pinnacle Student Developments (leeds) Limited

Payment in full Cert 10 and 10.1

23/12/2014

£225,340.69

Interim Certificate

PSDLL.19

30.09.15

£811,934.89

Pinnacle Student Developments (leeds) Limited

Payment in full Cert 10 and 10.1 and part payment 3.1

03/02/2015

£727,514.20

Other Costs Certificate

PSDLL.19.1

30.09.15

£17,953.00

Pinnacle Student Developments (leeds) Limited

Payment in full Cert 12 and 12.1

25/02/2015

£292,093.80

Interim Certificate

PSDLL.20

26.10.15

£286,449.65

Pinnacle Student Developments (leeds) Limited

Payment in full Cert 13 and 13.1

30/03/2015

£479,596.78

Other Costs Certificate

PSDLL.20.1

26.10.15

£63,766,60

Pinnacle Student Developments (leeds) Limited

Part payment of Cert PSDLL14.0

23/04/2015

£175,000.00

Interim Certificate

PSDLL21

23.11.15

£259,128.28

Pinnacle Student Developments (leeds) Limited

Part payment of Cert PSDLL14.0

29/06/2015

£110,000.00

Other Costs Certificate

PSDLL21.1

23.11.15

£18,749.60

Pinnacle Student Developments (leeds) Limited

Part payment of Cert PSDLL14.0

30/07/2015

£40,000.00

Interim Certificate

PSDLL.22

14.12.15

£184,115.00

Pinnacle Student Developments (leeds) Limited

Part payment of Cert PSDLL14.0

21/08/2015

£77,000.00

Other Costs Certificate

PSDLL.22.1

14.12.15

£17,954.00

Pinnacle Student Developments (leeds) Limited

Part payment of Cert PSDLL14.0

29/09/2015

£28,000.00

PSDLL.23

25.01.16

£97,133.00

Pinnacle Student Developments (leeds) Limited

Final payment of Cert PSDLL14.0 and part 14.1

22/10/2015

£63,000.00

PSDLL.23.1

25.01.16

£23,505.75

Pinnacle Student Developments (leeds) Limited

Part Payment of Cert PSDLL14.1

29/10/2015

£16,004.86

PHD1 Construction Limited

Completion funds

11/01/2016

£456,725.95

Paid in full green

£17,562,769.07

Mason & Vaughan Group

Completion funds

11/01/2016

£135,505.00

PHD1 Construction Limited

Completion funds

18/01/2016

£250,000.00

Mason & Vaughan Group

Completion funds

18/01/2016

£123,000.00

Mason & Vaughan Group

Completion funds

22/01/2016

£72,000.00

Mason & Vaughan Group

Completion funds

25/02/2016

£257,865.11

Pinnacle Student Developments (leeds) Limited

Certificate funds

17/05/2016

£92,000.00

Payments made

£14,396,966.48

Payments remaining due to client

£3,165,802.59

Regards

David Roberts

4 thoughts on “RESPONSES TO DEFAULT NOTICE emailed 19th February 2018”

  1. 23 February 2018

    Dear David,

    Again I thank you for your response and comment as follows.

    My Sales Agreement has no mention of Asquith House, and the first I knew about a second building was when Joss of AHIHILL contacted me!

    In Response to your points as per your references.

    1. The trustee of the stakeholder account is Pinnacle Student Buyers Leeds Limited not me personally. – You were the living human that made the decisions and took the actions and where those are not in accordance with the trust agreement you are personally responsible and liable.

    2. The stakeholder account was managed in accordance with the terms of the agreement for sale you entered into with the Seller –
    This appears so and at the moment is not helpful in resolving my claim, however may become necessary at a later date.

    3. I attach a schedule of the payments out of the account pursuant to the certificates issued by the Supervisor (as defined) as required under the sale agreement. All monies were duly accounted for. I can send you all of the Supervisor certificates if you wish to see them. Currently this is not of use unless my claim and that of other non completed buyers cannot be settled.
    A quick glance raises obvious questions – if costs are over £17 million how on earth was the buyers security sold for a mere £3.8 million and there still is not enough money to complete Austin Hall! Secondly it is pretty obvious that the £3.8 million paid does not even cover the unpaid obligations of £4.432,420.00 according to your attached schedule. Also your schedule does not include income from investors so it is not possible to know if all the money has been accounted for. A certified trust account statement from the bank will be required to establish these facts.

    4. Following the sale of the freehold in June 2016 sufficient funds were set aside to complete the construction of Austin Hall which is now practically complete and I understand occupied by tenants. I attach the Practical Completion Certificate – Austin Hall has still not reached practical completion as detailed in 5 below.

    5. The sale was the only immediate way to realise sufficient funds to complete the construction (which has now been achieved THIS HAS STILL NOT BEEN ACHIEVED – SEE BELOW) and in order to do so the legal charge in favour of the Buyers needed to be removed. The consent of the Buyers was authorised upon the creation and funding of the Secured Deposit Deed which was done in June 2016 APPROVAL AND NOT CONSENT IS REQUIRED 10.11 The Company agrees with the Seller with the approval of the Buyer to release the Seller’s Legal Charge (5.2.1 iii one to Land Registry and one to PSDL) upon completion of the Secured Deposit Deed. So once the SDD was in place the approval was the next step required to release the Charges.

    More importantly though the charges contained negative pledges which included completing all the undertakings of the sales agreement and that means my Unit and Austin Hall must have reached practical completion in accordance with
    8.3 It is agreed that the Certificate of Practical Completion will not be issued until:

    i) The Property has been constructed in accordance with the provisions set out in this Agreement – STILL NOT COMPLETE

    ii) The building warranty (or a cover note) is issued by or available for acceptance from the Warranty Provider STILL NOT COMPLETE

    iii) The works to the common parts of the Building are completed so as to enable the Buyer to obtain reasonable and safe access to the Property and if the Building is serviced by a lift the lift is functioning LANDSCAPING AND PARKING ARE STILL NOT COMPLETE BUT DEBATEABLE

    iv) All planning preoccupation requirements and building control pre occupation requirements have been dealt with and copies provided to the Buyer’s solicitors MY SOLICITOR HAS NOT BEEN PROVIDED WITH THIS. Thank you for a copy however as you can see as ii) above and v) below are outstanding, the certificate is in breach of the Agreement of Sale

    v) The Property is furnished, decorated and completed to a standard reasonably required to permit immediate habitable occupation by a paying tenant. DEDUCTIONS BY USL PROVE THIS STILL IS NOT ACHIEVED

    1 – to date has still not been achieved approximately 18 months after the charges were lifted and hence in breach of the Agreement of Sale.
    2 – I thank you for enclosing the Practical Completion Certificate dated 30 August 2017 – it is clear that the signature has been pasted onto the certificate and the person signing is not named. Can you please send a certified copy of the original, and is not in accordance with 8,3 and hence of no value. This again proves that the charges were lifted in breach of my Agreement of Sale as it is over a year after the charges were lifted.
    3 – The buyers approval was not given in accordance with 10.11 The Company agrees with the Seller with the approval of the Buyer to release the Seller’s Legal Charge (5.2.1 iii one to Land Registry and one to PSDL) upon completion of the Secured Deposit Deed.

    I have received a copy of SDD and accounting for Asquith House which is of no concern to me. Please provide the SDD and trust fund for Austin Hall.

    You have further confirmed this breach of trust was in full knowledge (highlighted above), and was in order to sell the freehold, and also confirms the living humans acting on behalf of PSDL, Tuscola and Grangeford Asset Management were also acting with full knowledge of this breach of trust.
    In your last response you confirmed you were also acting for PSDL. It appears your conflict of interest clearly resulted in the breach of trust of the investors due to your position as Director of PSBL.

    6. Asquith House is of no concern of mine – My Agreement for Sale is Austin Hall.

    7. The application and management of the funds to complete the construction was handled by Hill Dickinson Solicitors in Liverpool on behalf of Tuscola and not by the Buyers Company or this practice. PLEASE PROVIDE THE RELEVANT AGREEMENT OF SALE CONDITIONS THAT ALLOW THIS AS I AM UNABLE TO FIND THIS.

    I hope this explains why I am still including you in the list of respondents personally, as well as agent of PSBL, as it appears with the information I have so far that these breaches of trust were done in full knowledge to the detriment not only of myself, but to fellow investors in Austin Hall as well as to unpaid suppliers and contractors.
    I hope is not the case and is why I am going through this formal establishment of the truth before I continue to pursue my claim through the courts with other investors.

    Regards,
    Marc

    1. On Saturday, 24 February 2018, 09:42:06 GMT, David Roberts wrote:

      Mr Horn

      My comments as follows using the same numeration:

      1. There is a distinct separate legal personality between a company and an individual. That is basic common law.

      2. Noted

      3. You misunderstand the schedule. This shows the certificated costs incurred by the Seller against payments made. The schedule does not detail the cost of the outstanding work to be done. A separate cost estimate and quote was obtained via a new contractor and quantity surveyors for Tuscola which valued the outstanding works cost £2,448,000 which was the amount paid into Tuscola’s escrow account, that is , retained by the buyer when they purchased the freehold to pay for the outstanding works to be finished. The schedule shows that the amount allegedly owed to the developer at the time the contractor stopped work was £3,165,802. All funds have been accounted for and accounts audited and filed at Companies House.

      4. Both Austin Hall and Asquith House have reached Practical Completion and I have sent you the evidence. We have not been able to complete the legal leases as our clients have not provided us with instructions, warranty documents and the remaining documentation.

      5. We obviously differ as to the meaning of clause 10.11. I do not understand your reference to negative pledge insofar as this applies to the transaction. I attach a legal definition which explains what it means if this assists

      An undertaking by a debtor to a lender not to create, or permit to subsist, security or otherwise encumber certain of its assets in certain circumstances without the prior written consent of the lender. It is a covenant usually found in a loan agreement or in the terms of a bond. In a bond, it may simply prohibit the creation of security in certain circumstances unless the same security is created for the bond on a pari passu basis. The purpose of a negative pledge is to ensure that other creditors do not obtain a preferred claim over the assets of the debtor in the event of insolvency

      I am sorry but I do not think I can be of any further assistance in this matter. I am no longer acting for or instructed by Pinnacle who are retaining new solicitors who I am told will be dealing with the delayed completion of your lease.

      Regards

      David Roberts

      1. From: Marc Horn [mailto:maphorn@yahoo.com]
        Sent: 28 February 2018 13:25
        To: David Roberts
        Subject: Re: RE: Response to your reply to the Default Notice 19th February 2018

        Hi David,

        Thank you for your reply to try settle my claim.

        I am trying to establish the intent of the sale of the freehold, and who took what actions when, and what harm these actions may have caused. I have reverted to your original numbering.

        1. Equity provides remedy from the person who caused harm, and is a long recognised process going back many centuries for where conflicts arise with Equity, Trust and the Common Law and Statute Law.

        You have confirmed you and your company were acting as PSDL solicitor at the time of the claimed breaches, and this was further confirmed by PSDL’s email of the 22 February 2018 announcing your retirement from their service.

        Additionally I would refer you to Limits of human authority in my statement of facts, Whereas 1. 1.

        Statement of Facts – Macrocosm – Human Authority, Rights and Responsibil…
        Back to Statement of Facts – Macrocosm – Human Authority, Rights and Responsibilities. ver. 7Feb2017 Next Page 2…

        Until you as the human can prove you have authority to knowingly cause another human harm (me) you are personally responsible and liable for your actions as is each other human.

        This legal principal is confirmed in numerous maxims of law, as well as endless case law.

        There are endless trust and equity cases that further confirm this, which again stands above “Common Law” as Equity will not allow a statute to be used to cloak a fraud.

        2. A certified Bank Statement for the account and original documentation may be required at a later date to verify this. However this currently is not in question.

        3. Thanks for the clarification – I just saw your note those highlighted background in green have been fully paid. I now see the columns you refer to, and confirm based on your figures the unpaid commitments are £3,165,802 as you state.

        a) Can you please confirm all these outstanding payments have been made and there are no dues to suppliers / contractors / subcontractors etc.

        b) If not paid what is the balance due as the filed accounts show net liability of; £41 at 31 March 2015, £368 at 31 March 2016 and £708 at 31 March 2017.

        4. Adding unpaid commitments are £3,165,802 to “outstanding works cost £2,448,000” the estimated costs to complete Austin Hall, from your figures totals £5,613,802.

        a) Can you please explain how the sale price of just under £3.8 million is thought to cover the outstanding commitments for the completion of Austin Hall as you claim is the case.

        5. I again reiterate Asquith House is nothing to do with my Agreement for Sale. Specifically I would draw your attention to Definitions;

        1.17 the Estate : All that freehold land situate on Servia Road Leeds registered at HM Land Registry with absolute title under title number/s WYK463417 together with the area hatched black on the plan annexed hereto

        1.18 the Building : The Building to be constructed on the Estate to be known as Austin Hall

        a) You have confirmed the Legal Charges were removed as a condition of the sale of the freehold.

        b) You have provided proof that this was done in breach of the Legal Charges as Austin Hall still today has not reached Practical Completion. The sale of the freehold occurred on the 29 June 2016 (only registered 7 November 2016), yet your claimed Practical Completion Certificate is dated 31 August 2017 (which additionally is not in accordance with my Agreement For Sale as detailed next in c)).

        c) You have provided proof that the certificate of practical completion is specific and relates only to “Under the terms of the above mentioned contract, we hereby certify that in our opinion Practical Completion of the Works as described within the specifications, drawings and employers requirements, but excluding any furniture, flooring and client fit out items such as reception areas has been achieved on 31st August 2017.” and as previously detailed below in 5 (Agreement for Sale 8.3) does not meet the requirements of my Agreement for Sale and is in accordance with whatever documentation and scope was requested by the clients of the certificate.

        d) You have confirmed my point in regards the purpose of the negative pledge in the definition you sent highlighted in bold red defining the trust relationship in purple, and hence the breaches claimed.

        “An undertaking by a debtor (PSDL) to a lender (Myself and other investors via PSBL, hence yourself) not to create, or permit to subsist, security or otherwise encumber certain of its assets in certain circumstances without the prior written consent of the lender (Myself and other investors and hence clause 10.11). It is a covenant usually found in a loan agreement or in the terms of a bond. In a bond, it may simply prohibit the creation of security in certain circumstances unless the same security is created for the bond on a pari passu basis. The purpose of a negative pledge is to ensure that other creditors do not obtain a preferred claim over the assets of the debtor in the event of insolvency”.

        e) In regards 10.11 the meaning is unambiguous (and confirmed in d) above) and clearly states the buyers approval is required to remove the legal charges.

        This is further confirmed in the DEPOSIT RELEASE where you do not require further approval;

        5.5 The Buyer hereby irrevocably authorises the making of the payments referred to in clause 5 such that so long as the Seller performs the Seller’s obligations set out in this Agreement no such payment shall give rise to any claim by the Buyer for compensation or otherwise.

        f) The SDD you provided is not in accordance with my Agreement for Sale (the definition of the building has been changed) and is hence a breach of my Agreement for Sale.

        g) The statement of the Trust account you provided further confirms and is titled “Asquith House Servia Road Leeds which has nothing to do with my Agreement for Sale.

        6. As 5 above – nothing to do with my Agreement for Sale.

        7. I am unable to find an allowance to do this in my Agreement for Sale.

        The intent of the sale appears to have been to raise funds to complete Austin Hall. However the evidence provided appears to show this was not done with clean hands. That has caused myself, other investors, suppliers, contractors and sub contractors and students renting extensive harm.

        I greatly appreciate your efforts to help me clarify the facts to establish the truth. The failure of the other respondents however adds further to the principal of clean hands in mt claim leaving me no alternative but to apply to the courts to settle my claim.

        Thanks and Regards,

        Marc

        1. RE: RE: Response to your reply to the Default Notice 19th February 2018
          Yahoo
          /
          FLAT LEEDS AHILL

          David Roberts
          To:
          Marc Horn

          28 Feb at 13:42

          Mr Horn

          I am sorry that I cannot assist you any further. The building has been finished and indeed is occupied by students (as far as I know). The money from the sale of the freehold was used to pay for the cost of the construction work required to complete the build.

          I cannot advise you on your alleged loss so I respectfully suggest you take advice from your own lawyers.

          Regards

          David Roberts

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