September 30, 2019 Court of First Instance -Judgments,Judgments
Claim No: CFI-018-2019
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
In the name of His Highness Sheikh Mohammad Bin Rashid Al Maktoum, Ruler of Dubai
IN THE COURT OF FIRST INSTANCE
BEFORE JUDGE ALI AL MADHANI
BETWEEN
DELOITTE PROFESSIONAL SERVICES (DIFC) LIMITED
v
(1) ABWAB REAL ESTATE LIMITED CO LLC
(2) ZMZ INVESTMENTS LLC
(3) Al BARARI DEVELOPMENT COMPANY
Defendants
Judgment: 30 September 2019
JUDGMENT OF H.E JUSTICE ALI AL MADHANI
ORDER
UPON the Claimant’s application for Immediate Judgment (the “Application”) dated 4 August 2019;
UPON reviewing the First and Second Defendant’s evidence in reply filed on 7 August 2019;
AND UPON reviewing all documents and evidence submitted on the Court file;
IT IS HEREBY ORDERED THAT:
1.The Application is granted.
2. The Second and Third Defendants are jointly and severally liable to pay the Claimant the outstanding sum of USD 1,051,862 (one million and fifty one thousand eight hundred and sixty two United States Dollars) plus interest, accruing at a rate of 9% (as provided for under Practice Direction No. 4 of 2017), payable from the date the judgment is issued.
3. The Second and Third Defendants are jointly and severally liable to pay the Claimant its costs of the Application, on the standard basis, to be assessed by the Registrar if not agreed by parties.
Issued by:
Nour Hineidi
Date of issue: 30 September 2019
At: 2pm
JUDGMENT
The Immediate Judgment Application
1.The current case before the Court is the Claimant’s application for Immediate Judgment pursuant to Rule 24 of the DIFC Court Rules (the “RDC”) against only the Second and Third Defendants in the substantive case, namely ZMZ Investments LLC ("ZMZ") and Al Barari Development Company LLC ("Al Barari") (jointly, the “Respondents”).
2. Three engagement letter agreements were entered into by the parties. These deal with three phases of work to be carried out by the Claimant (the “Engagement Letters”):
a. Phase 3: i) ‘Master Services Agreement’ - dated 02 November 2015; ii. ‘Statement of Work No. 1 and Amendment’ - dated 06 January 2016; iii. ‘Statement of Work No. 2’ - dated 27 December 2015;
b. Phase 4: i) ‘Investigation of ZMZ Investments LLC’ - dated 21 March 2016; ii) ‘Falafel 4 Change Order 1’ - dated 13 April 2016;
c. Phase 5: i. Cyber Investigation’ – dated 10 January 2016; ii. ‘Investigation of ZMZ Investments LLC’ – dated 29 March 2016; iii) ‘Falafel 5 Change Order 1’ – dated 3 May 2016.
3. Pursuant to those Engagement Letters, the Claimant was to provide the Respondent with certain services at pre-agreed hourly rates.
4. The Claimant’s claim is that those services were carried out, and as such it is entitled for the claimed amount specified within the three Engagement Letters. The Claimant further alleges that it issued invoices for the services rendered under those various agreements, along with multiple payment reminders and proposed payment plans. On the Claimant’s account, all of these sums are allegedly unpaid. The outstanding sum stands at USD 1,051,862. In the Claimant’s account the Respondents accepted those services but failed to honor their payment obligations.
5. The Claimant argues that numerous meetings were held between the parties. Every time the Respondents issued emails confirming a payment plan, but later failed to adhere to the schedule. The Claimant then said it had no choice but to commence legal proceedings seeking payment of the outstanding monies.
6. The Claimant submitted its Particulars of Claim on 29 May 2019 and subsequently served the Respondents.
7. Only Abwab Real Estate Limited Co LLC, the First Respondent (who is not a party to the Immediate Judgment Application), and ZMZ, the Second Respondent, submitted a joint defence on 26 June 2019 (the “Joint Defence”). To date, no defense or certificate of service has yet been filed by the Third Defendant.
8. In the Claimant’s view, the Joint Defence, does not deny the Claimant's claim for the sum of USD 1,051,862. Furthermore, the Claimant also notes that the Joint Defence queries, yet does not challenge, whether the Claimant had submitted sufficient evidence pertaining to the provision of services under the contract.
Part 24 Immediate Judgment
9. Rule 24 of the RDC states:
24.1 The Court may give immediate judgment against a claimant or defendant on the whole of a claim, part of a claim or on a particular issue if:
(1) it considers that:
(a) that claimant has no real prospect of succeeding on the claim or issue; or
(b) that defendant has no real prospect of successfully defending the claim or issue; and
(2) there is no other compelling reason why the case or issue should be disposed of at a trial.
24.2 “An application for immediate judgment under Rule 24.1 may be based on:
(1) a point of law (including a question of construction of a document);
(2) the evidence which can reasonably be expect ed to be available at trial or the lock of it; or
(3) a combination of these. “
10. The Claimant makes this application on the grounds that the Respondents to this application, namely ZMZ and Al Bariri, have not contested, rejected, nor denied the Claimant's claim and as such they have no real prospect of successfully defending the case.
Second Defendant’s submissions
11. In response to the Claimant’s Application for Immediate Judgment, on 6 August 2019, the Second Defendant filed the Witness Statement of Farida Safwat, an Associate at Amal Advocates & Legal Consultants, the law firm handling these proceedings on behalf of the First and Second Defendants.
12. The Second Defendant contends that the Claimant failed to provide any evidence on the type of services it had allegedly rendered to the Second Defendant, but rather - that the Claimant merely provides evidence on the existence of a contractual relationship between the Second Defendant and Claimant at some point of time.
13. The Second Defendant argues, in its Defense to the Particulars of the Claim, that the Claimant’s case lacks evidence with regards to the delivery of the services in Phase 4 Level of Effort (“LOE”) and cites the following paragraphs from the Defense:
24. “The LOEs for Phase 4 are signed between Claimant and Defendant 2 starting on 21st March 2016. However, all the documents submitted by the Claimant regarding Phase 4's LOEs are merely proof of the existence of a contractual relationship between Claimant and Defendant 2. However, they do not prove that Claimant has fulfilled its contractual obligations by virtue of these LOEs. Moreover, all the invoices that were submitted namely Invoices Nos. 067, 197, 198, 300, 589 do not refer to services rendered by Claimant under the umbrella of Phase 4. Accordingly, there is no proof that any services have been rendered to Defendant 2 under Phase 4.
25. The LOEs for Phase 5 are signed between Claimant and Defendant 2 starting on 29th of March 2016. However, all the documents submitted by the Claimant regarding Phase 5's LOEs are merely proof of the existence of a contractual relationship between Claimant and Defendant 2. They do not prove that Claimant fulfilled its contractual obligations by under these LOEs. Additionally, the invoices submitted by the Claimant namely invoices Nos. 197, 198, 300, 589 do not refer to any specific LOE, which makes it difficult to decide whether these services were actually fulfilled or not, and if so, under which LOE.
26. As such, the documents submitted by the Claimant do not offer sufficient evidence on the fulfillment of the Claimant's contractual obligations. They are also not representative of the basis on which the Claimant has calculated these amounts, or of the services rendered in exchange for the latter.”
14. The Second Defendant poses the question: if the above statement does not account for a denial of the Claimant's Claim, then what does? For the Claimant to proceed with the application at hand and base it on an alleged admission is a waste of the Court's time.
15. The Second Defendant then argues that nothing in the RDC stipulates that if the term “denial” is not used, then a defendant shall lose their right to contest a claim or even deny it all together.
16. The Second Defendant further argues that from a procedural point of view, an application for Immediate Judgment does not apply to the case at hand. Reference to RDC 24.2 is given by the Second Defendant;
"An application for immediate judgment under Rule 24.1 may be based on:
(1) a point of law (including a question of construction of a document);
(2) the evidence which can reasonably be expected to be available at trial or the lack of it; or
(3) a combination of these."
17. The Second Defendant submits that the Claimant's application is not based on a point of law, but rather on a factually inaccurate allegation and that there is no reason to expect that such evidence, from the Respondents side, will not be available at trial.
18. The Second Defendant’s finally argues that there is no reason for it at this point to submit any evidence, as the Claimant has failed to substantiate any of its claims. With the absence of these two conditions, it is safe to say that the requirements that should be met to support the Claimant's Application for Immediate Judgement are not satisfied and therefore the Application should be dismissed.
Discussion
19. As detailed above, the Claimant’s case concerns non-payment of accumulated invoices for the sum of USD 1,051,862 generated from a contractual relationship through LOEs and the Engagement Letters.
20. The evidence in the courts files shows that The Claimant appears to have relied upon 5 invoices; namely 067, 197, 198, 300 and 589 for the year 2016 in order to prove their case.
21. The Respondents’ defence and grounds upon which each contests the Application is that the invoices submitted by the Claimant do not refer to services rendered by Claimant under the umbrella of Phase 4, or alternatively, do not refer to any specific LOE, making it difficult to decide whether these services were actually fulfilled or not, and if so, under which LOE.
22. In this case, and with regards to the claim against the Second Defendant, ZMZ, the Claimant has presented the Court with documentary evidence that the contract governs the contractual relationship between the Second Defendant and the Claimant, along with a number of invoices that were sent to the Second Defendant, some of which were paid off, some partially-paid (e.g. 067) and some not yet paid (i.e. 197, 198, 300 and 589).
23. Furthermore, the Claimant has put before this Court correspondence between the parties which reflects the course of business between them for last three years, including emails attaching the invoices to the Second Defendant and other emails suggesting settlement options for payment of the debt.
24. All the Second Defendants have done in these proceedings is to deny the existence of the debts, or alternatively challenge the Claimant’s evidence by saying it’s difficult to ascertain whether these services were actually fulfilled or not, and if so, under which LOE.
25. Having perused the evidence put forth by the Claimant, I can see it carries a high degree of weight to the extent that it tenders ZMZ’s defence (in respect of the detail of work) redundant on the basis that those each of those invoices sent to ZMZ, by the Claimant, over email, contain specific references to project.
26. The evidence clearly shows that invoice number 067 refers to phases 3,4 and 5, whilst invoices 197, 198, 300 and 589 of 2019 refer to phases 3 and 5. All the relevant invoices also refer to the specific period in which the work was completed. This clearly answers the Second Defendant’s unfounded allegation that invoices carry no reference phases of work or LOE – such a contention is simply untrue.
27. Moreover, the invoices sent by the Claimant to the Second Defendant, were sent attached to emails that were never objected to by the Second Defendant. In fact, not a single challenge to a single one of the invoices attached was ever raised.
28. With regards to invoice number 067, the evidence shows that this was partially paid by the Second Defendant without any objection at the time when payment was requested by the Claimant.
29. Other evidence established by the Claimant is the exchange of email between the parties which discussed the method and time of payment, notably the email of 13 December 2016, sent from the Second Defendant by Shaukat Ali to Srinivas of the Claimant in which Mr. Shaukat informed the Claimant that the Second Defendant’s management had agreed to a make payment of the overdue amount (which at the time was overdue for over 12 months) and asked for a discount on the outstanding amount owed.
30. The Claimant provided further evidence of many contentious emails, between it and the Respondents, addressing issues of payment and settlement of the debts yet none of them include a single reservation or objection to the work done. The Second Defendant has not denied receiving the invoices presented nor put such an argument before this Court, nor provided any evidence to establish that it did not receive the invoices or even record any objection to the delivery or quality of the work recorded in the invoices attached.
31. The Second Defendant’s defence is thus without merit and remains unsupported by any evidence to counter the Claimant’s documentary evidence. The Second Defendant has not identified any other available defence or evidence that would be available to it if this Immediate Judgment Application were to fail and the claim to proceed to trial.
32. In my judgment, the Claimant has provided sufficient evidence to establish the existence of a contractual relationship between both Second and Third Defendants, and then supported its claim with invoices and emails, and proof of the delivery of the services free of any objection by any of the Defendants.
33. This said, in light of the absence of a credible defence put forth by the Second Defendant, and in the lack of the Third Defendant’s defence (despite being served in the proper way), the Court is bound to say the that the Respondents, being the Second and Third Defendants have no real prospect of successfully defending the claim and that there is no other compelling reason as to why the case or issue should be disposed of at a trial.
34. Accordingly, the Second and Third Defendants are jointly and severally liable to pay the Claimant the outstanding sum of USD 1,051,862 (one million and fifty one thousand eight hundred and sixty two United States Dollars) plus interest, accruing at a rate of 9% (as provided for under Practice Direction No. 4 of 2017), payable from the date the judgment is issued.
35. The Second and Third Defendants shall pay the Claimant’s costs of and occasioned by the Immediate Judgment Application, to be assessed by the registrar if not agreed.
Issued by:
Nour Hineidi
Deputy Registrar
Date of issue: 30 September 2019
At: 2pm
