September 05, 2022 court of first instance - Orders
Claim No: CFI 035/2022
IN THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURT OF FIRST INSTANCE
BETWEEN
LUEWT
Appellant
and
LORTE
Respondent
ORDER OF H.E JUSTICE SHAMLAN AL SAWALEHI
UPON considering the Appellant’s notice of appeal and additional evidence (namely the email chain between Lemt and Luhayn dated 27 April 2022)
AND UPON hearing from Mr Liman on behalf of the Appellant and Ms Libihit on behalf of the Respondent on 8 June 2022
IT IS HEREBY ORDERED THAT:
1. The appeal is dismissed.
2. The Appellant pays the Respondent’s costs on the standard basis, to be assessed by a Registrar if not agreed.
Issued by:
Ayesha Bin Kalban
Deputy Registrar
Date of Issue: 5 September 2022
Time: 1pm
SCHEDULE OF REASONS
1. This appeal relates to a written contract between the parties dated 14 July 2021, for the provision of services in relation to a project for the construction of a new stem cell lab in Abu Dhabi (the “Contract”). The terms of the Contract were noted as “subject to agreement”. Throughout the term of the Contract, the Appellant sought eight variations in relation to what it considered to be additional works requiring additional payments (the “Variations”). The Respondent disputed that these Variations were payable on a number of grounds.
2. The Appellant issued a claim for damages for breach of contract being the sum which they purported to be outstanding by reason of the Variations on 26 December 2021. The sum claimed was AED 308,032.84. After an unsuccessful consultation, the matter came before SCT Judge Delvin Sumo for determination on 24 January 2022. In coming to her determination, SCT Judge Sumo ordered that the parties jointly instruct an expert for the assistance of the Court. In considering the expert report, evidence and submissions on behalf of the parties, SCT Judge Sumo granted judgment in favour of the Appellant for the sum of AED 216,482.07, making various reductions in the amount sought due to matters contained within the expert report.
3. The Appellant then issued this appeal seeking the full sum of their claim on 28 April 2022. In the appeal, the Court has been asked to consider new evidence in the form of an email chain between Lemt and Luhayndated 27 April 2022. Moreover, the Appellant requests the Court to contact a number of additional witnesses who would allegedly support the Appellant’s case.
4. The Respondent submits that the Appellant is not entitled to put fresh evidence before the Court when considering an appeal. I remind myself of RDC 53.7 which states that Part 44 of the RDC does not apply to matters in the Small Claims Tribunal including appeals from the same (AS World Group v Sajid Barkat [2021] CFI 086). Furthermore, Part 53 of the RDC now makes specific provision for appeals from the SCT (ibid.). In my view, there is nothing in Part 53 of the RDC which prevents or otherwise regulates the introduction of fresh evidence in an appeal from the SCT and so it is a matter left to the judge hearing the appeal. I will consider the fresh evidence, being the email chain between Lemt and Luhayndated 27 April 2022, in determining this appeal.
5. In looking at the evidence put forward by the Appellant, I do not consider that the same offers much in the way of assistance to the Appellant. The email chain merely states that the client of the project (the Appellant being a subcontractor of the Respondent) queried whether the percentage of works completed were accurate and that they agreed with them in principle, subject to provision of the relevant documentation. I was not provided with the percentages referred to, only the very brief email chain itself. This email chain does not offer much in the way of evidence and would not, in any event, be sufficient to disregard the jointly instructed expert report which SCT Judge Sumo considered in making findings of fact when coming to her judgment. Therefore, the part of the appeal which relies on the email chain must fail.
6. As to the request for witnesses to be called, while I appreciate that there may be additional evidence available to support the Appellant’s case, in my view it is not the Court’s role in these proceedings to investigate on the Appellant’s behalf. When a party brings a claim, it is for that party to prove the assertions that it makes. It is for each of the parties to investigate and collect evidence in support of their respective cases. It is generally not for the Court to assume an inquisitorial role in seeking to find evidence in support of a party’s case. The Court’s role, generally, is to act as an impartial third party and consider the evidence and arguments put before it.
7. All I have been presented with by the Appellant are the names and contact details of various people. I have not been provided with any witness statement or other form of evidence. The contact details provided have no evidential value to the matter in hand. It was for the Appellant to present its own case to the Court, supported by evidence and submissions. I heard the appeal and nor was further evidence provided from the people listed by the Appellant at that time. As such, there was no further evidence for me to take into consideration when determining this appeal, and therefore, in my judgment, this aspect of the appeal must fail also.
8. In the circumstances, I dismiss the appeal and the judgment of SCT Judge Delvin Sumo for the sum of AED 216,482.07 remains in place. As to costs, the usual order is that costs follow the event. The Appellant made the decision to issue this appeal and as a result the Respondent has incurred costs. The Appellant’s appeal has failed. The Respondent issued no cross appeal and in doing so accepted the decision of SCT Judge Delvin Sumo. In the circumstances, I consider it fair and reasonable that the Appellant should pay the Respondent’s costs of this appeal.