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BTW, I checked how the amount claimed was calculated. The sale was $1,050,000 and according to the Plaintiff (buyer) general condition No 4 of the contract allows penalty of 9% for late settlement which he calculated at 366 divided by 6 days which gives a claim of $1549.20. Not sure why he used 366 days not 365.
I note previous advice that this offset should have been done at Settlement – but for some reason he feels he can still pursue in the Small Claims Court here in WA. I am still a bit unsure where I can actually point out at the hearing that the settlement of the contract stops any further claim after settlement. Is is stated somewhere. I can not see where anything specific in the general terms and conditions of the sale contract (WA standard wording) mentions this.
By the way It has since come to my notice that the Buyers settlement agent wrote to my settlement agent prior to settling claiming that as he could not install his furniture he was claiming late settlement from original settlement date. My settlement agent replied that the claim was rejected as no conditions were broken as we allowed access on the 12th of May for kitchen renovator and no one came. The after that settlement proceeded.
Would that notice have been sufficient for the summons to be issued after settlement or should they (Buyers) offset settlement for amount claimed at time of settlement if they did not accept my settlement agents reply ?
Thank you, I am working out how the actual amount claimed was arrived at, but I was of the view that once settlement has been made, there is no recourse to claiming penalty interest, as you have also confirmed. But some say to me that there is still some options for the buyer to claim general damages – not sure on that.
As stated in my original post, the buyer wanted the kitchen renovators access on the 12th May, 08 – this I agreed with buyer and then in turn agreed to amend settlement date to 13th May from 7th May on that condition i.e. access by kitchen renovator.
But when they subsequently learned from my agent that access did not mean that any structural work or fitting could take place, no one turned up on the 12th, but settlement proceeded the following day. But now they issue a summons for late settlement saying that settlement should have taken place on the 7th May, 08 as they could not get in to do what they wanted to do on thr 12th May, 08
In my view the issue is that is would be obvious that access doe snot grant approval for any fittings or structural type work as they do not yet own the place. My next thought is that if they felt I had not honored the access agreement, they they should have withheld funds on settlement, not made full settlement as they did and they after setttlement issue a small claims summons.
These are the issues. I am in WA.
The claim is for $1500 so it is worth defending.
