Responses to NOTICE OF PRE-COURT ACTION – OPPORTUNITY TO CURE FAILURE TO DISCLOSE INFORMATION AND NOTICE OF LIEN 22 February 2018

On Saturday, 24 February 2018, 09:42:06 GMT, David Roberts <David.Roberts@davidroberts.co.uk> 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

 

3 thoughts on “Responses to NOTICE OF PRE-COURT ACTION – OPPORTUNITY TO CURE FAILURE TO DISCLOSE INFORMATION AND NOTICE OF LIEN 22 February 2018”

  1. 28 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. 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

      1. Marc Horn To:
        David Roberts

        28 Feb at 14:02

        Hi David,

        Thank you for your help.
        I will be issuing my default notice today or tomorrow so that I have completed the process to continue persuing my claim through the courts.

        Regards,
        Marc

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