IN THE “HELL ON EARTH” COUNTY COURT CLAIM NO. 1234567
B E T W E E N
RESORTS LTD
Claimant
AND
You the Consumer
Defendant
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SAMPLE DEFENCE AND COUNTERCLAIM
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- It is denied the Defendant is liable to pay the sums claimed (as pleaded in the Particulars of Claim) or at all for the reasons set out below.
- At all material times the Defendant is a consumer contracting on the Claimant’s standard terms of business.
- The Defendant entered into a contract with “Pre Resorts Limited” (the former name of the Claimant Company) on 1 January 2013 (‘the Contract’) for a timeshare of holiday accommodation.
- The written terms of the Contract were as follows:
(a) The Defendants agreed to pay to the Claimant the sum of £5,000 for a timeshare of the property known as “The Resort” and situated at, Mijas, Costa Del Sol, Spain (‘the Timeshare’).
(b) The Defendant agreed to pay £500.00 in management charges per year (‘the Management Charge’).
- In addition to the written terms of the Contract, the oral terms of the Contract were as follows:
(a) The Defendant was free to terminate the contract at any time and would not be liable for any sums thereafter.
(b) In order to terminate the contract the Defendant could:
(i) Instruct the Claimant to sell “the Timeshare” to a third party; or
(ii) Stop paying annual management fees whereupon the timeshare would be repossessed and ownership pass to the Claimant free of charge.
(c) The Claimant would assist the Defendant in selling “the Timeshare” to a third party should the Defendant wish to terminate the Contract at any time.
(d) “The Timeshare” had a monetary value which was easily resalable to a third party.
(e) “The Timeshare” was “inflation proof” and the Defendant was “investing” in future holidays.
(f) “The Timeshare” would accumulate value.
(g) “The Management Charges” would remain at the sum of £500.00.
(h) The Claimant would provide the Defendant with unlimited free membership to other facilities i.e. the Gym (‘the Gym Membership Offer’).
- In the alternative, the above were express, alternatively implied oral representations made by the Claimant to the Defendant to induce and which did induce the Defendant to enter the contract.
- The Defendant performed their duties under the Contract and paid their 2Management Charges” to the Claimant in accordance with the Contract each year.
- In fact the representations made by the Claimant were false and the Claimant is in breach of Contract as set out below:
PARTICULARS
(a) “Management Charges” have increased from the agreed sum of £500.00 to £750.00 per year. “The Timeshare” is not “inflation proof” and has not been a good investment, owing to this gross increase in “Management Charges”.
(b) “The Gym Membership” offer was only available for 4 weeks until 1st of February 2013. Free membership was thereafter withdrawn. Membership to the Gym is now £1,000 per year with no discount for owners whatsoever.
(c) “The Timeshare” has not accumulated value. There is no market for the resale of “the Timeshare” and the Defendant cannot even find somebody willing to take the Timeshare as a gift. In addition the site at Mijas is being reduced by the Claimant, offering reduced enjoyment and benefit of Club Membership. There is in fact no resale value.
(d) The Claimant has failed to advertise “the Timeshare” for sale and/or refused to assist the Defendant at all with the sale to a third party despite the Defendant’s requests to do so.
- As a result of the breaches set out above on 3rd of June 2014 the Defendant informed the Claimant that “the Timeshare” was no longer required and instructed the Claimant to advertise “the Timeshare” for sale in order to terminate the Contract pursuant to paragraph 5(b)(i) above.
- Further or alternatively the Defendant has withheld payment of the Membership Charge since July 2012 in order to terminate the Contract under paragraph 5(b)(ii) above.
- The Claimant has refused to acknowledge the Defendant’s termination of the Contract in accordance with the terms set out at paragraph 5(b) above.
- “The Annual Management Fees” claimed by the Claimant all relate to a period after the termination of the Contract and are therefore irrecoverable.
- Further or alternatively, the terms of the Contract are unenforceable pursuant to the Unfair Contract Terms Act 1977 (‘UCTA’) and the Unfair Terms in Consumer Contracts Regulations 1999 (‘UTCCR’):
PARTICULARS
(a) Clause 10 of the Contract purports to exclude liability for misrepresentation. This exclusion clause has no effect by reason of s.8(1) of UCTA as it does not satisfy the requirements of reasonableness as stated in s.11(1) of UCTA.
(b) Pursuant to s.3(2)(b)(i) UCTA the Claimant is not entitled to rely on any term which inhibits the Defendant from ending the Timeshare agreement.
(c) Pursuant to s.3(2)(b)(i) UCTA and Regulation 5(1) UTCCR, clause 2 of the Contract and Membership of the “Resort” is unfair and unenforceable. The Defendant did not have sight of the Constitution at the time of signing the Contract. In fact the Claimant first disclosed the Constitution to the Defendants’ solicitors on 6th of June 2014.
(d) Pursuant to s.3(2)(b)(i) UCTA and Regulation 5(1) UTCCR clause 5 of the Contract and clauses 12A and 13 of the Constitution, if considered binding, are inherently unfair and unenforceable. At the time of contracting the Defendants were given no explanation of what was meant by timeshare in perpetuity. It has created an onerous liability with escalating “Maintenance Fees” and the Defendant is potentially liable for life. It is inherently unfair that consumers should be held to Membership in perpetuity in a private members club without the possibility of release, even if they no longer wish to be a member.
- Further or alternatively the Claimant is in breach of the Timeshare Act 1992.
PARTICULARS
(a) The Claimant did not provide the Defendant with a cancellation notice which provided the requisite 14 days notice under section 2 of the Timeshare Act 1992.
(b) The Claimant failed to give the Defendant a document setting out the full terms of the Contract or the substance of those terms under section 1A of the Timeshare Act 1992. As aforementioned the Defendant did not have sight of the Constitution at the time of signing the Contract.
- By reason of the above breaches and by reason of s.5(2) of the Timeshare Act 1992 the contract may not be enforced against the Defendant and they were entitled to give notice of cancellation to the Claimant at any time which they duly did on 3rd of July 2014.
COUNTERCLAIM
- By reason of the matters set out above the Defendant suffered loss and damage.
PARTICULARS OF LOSS AND DAMAGE
(a) Resale value of the timeshare not exceeding £5,000.
- The Defendant is entitled to and claim interest pursuant to s.69 of the County Courts Act on the amount found due to them at such rate and for such period as the court thinks fit.
AND the Defendant’s counterclaim
(1) Return of the sum of £5,000.00
(2) A declaration that the contract is void.
(3) Alternatively, damages for misrepresentation.
(4) Interest as set out above.
(5) Further or other relief.
Statement of Truth
*[We, the above-named Defendants, believe][The Defendants believe] that the facts stated in this Amended Defence and Counterclaim are true.
*[I am duly authorised by the Defendants to sign this statement]
Full Name(s):
Signed:……………………………………………..
*( Defendants)( Defendants’ solicitor) * Delete as appropriate
Position or office held:
(if signing on behalf of a firm or company)
Dated this day of 2014
Address to which documents, notices and payments should be sent:
Solicitors for the Defendants
XXXXXXXXXXXX
For more information regarding this article or assistance in any other timeshare related issues please contact the TCA on 01908 881058 or email: info@TimeshareConsumerAssociation.org.uk