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Claim No: CFI 016/2022

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

BETWEEN

MAIRE

Claimant/Appellant

and

MAIZAH

Defendant/Respondent

JUDGMENT OF H.E. JUSTICE ALI Al MADHANI

UPON reviewing the Judgment of H.E. Justice Nassir Al Nasser issued on 18 February 2022 (the “Judgment”)

AND UPON reviewing the appeal of the Claimant (the “Appeal”)

AND UPON reviewing the submissions of the parties

AND UPON hearing counsel for the Claimant and for the Defendant at the hearing on 31 March 2022

AND UPON reviewing the relevant documents on the Court’s file

IT IS HEREBY ORDERED THAT:

1. Paragraph [1] of the order of the Judgment is set aside.

2. The Defendant shall pay the Claimant AED 27,183.

3. If the Claimant has not yet paid the Defendant AED 24,218 pursuant to paragraph [2] of the Judgment, then the Defendant may deduct this amount from the amount she will pay the Claimant under the previous paragraph.

4. The Defendant shall pay the Claimant his costs of the Appeal insofar as those costs are reasonable and proportionate. If the parties cannot agree on the amount of the Claimant’s costs which are reasonable and proportionate, the costs shall be assessed by a registrar.

Issued by:
Nour Hineidi
Registrar
Date of issue: 2 June 2022
Time: 12pm

JUDGMENT

1. This is the Claimant’s appeal against the Judgment of H.E. Justice Nassir Al Nasser (the “Judge") dated 18 February 2022 by which the Judge dismissed the Claimant’s claim and partially granted the Defendant’s counterclaim. It is noted from the outset that the Claimant has only appealed the Judge’s decision in respect of his claim. The Judge’s decision on the Defendant’s counterclaim has not been challenged by the Claimant. It is noted, also, that the Defendant attempted to challenge the Judge’s decision to only partially grant her counterclaim, for the first time in her skeleton argument for this Appeal. This attempt was summarily rejected at the Appeal’s hearing.

2. The dispute between the parties arose in the context of a residential tenancy. The Claimant is a landlord (the “Landlord”) and the Defendant was his tenant (the “Tenant”), in an apartment in House, DIFC (the “Apartment”). During the currency of the tenancy, and while the Tenant was out, a shattāf—a hand-held water spray—burst in the master bathroom (the “Master Bathroom”) causing bad damage to the parquet flooring of the Apartment. It is common ground that there was no shattāf in the Master Bathroom at the time the tenancy began, though there was a bidet. But both parties say it was the other who installed the shattāf and that it is the other, consequently, who is responsible for the damage which flowed from its malfunction.

3. At first instance, the Landlord claimed AED 50,000 in damages from the Tenant, being the cost, he said, of replacing the Apartment’s damaged parquet flooring. The Tenant counterclaimed AED 124,220, comprised of a claim for refund of rent paid in advance for the period from the Apartment’s flooding, whereupon the Tenant permanently vacated the premises, until the date on which the tenancy was due to expire, in the amount of AED 24,220, and AED 100,000 for other alleged “psychological and material" damage. The judge below found that the Tenant was not responsible for the flood, dismissed the Landlord’s claim, granted the Tenant’s claim for refund of unused rent but dismissed all her other claims.

4. I will briefly set out the background of the dispute. On 19 January 2021, the Landlord and the Tenant entered into a tenancy agreement pursuant to which the Tenant was to rent from the Landlord the Apartment for a year from 1 February 2021 in exchange for payment of AED 85,000 (the “Contract”).

5. The Apartment has two bathrooms, one of which is connected to the apartment’s single bedroom, being the Master Bathroom. As has been said, at the time the Contract was concluded the Master Bathroom was equipped with a bidet but no shattāf.

6. It is clear from the evidence before the Court—and in particular, certain emails exchanged between the Tenant and the Landlord’s agent, Majora Real Estate (“Majora”)—that the Tenant regarded it as important that a shattāf be installed in the Master Bathroom. On 24 January 2021, for example, the Tenant emailed Maka, Majora’s Office Manager, complaining that, amongst other things, there was no shattāf in either of the apartment’s bathrooms.

7. The Court has been shown one quotation for the installation of a shattāf dated 4 February 2021 and given by Markin Technical Services LLC (“Markin”). The quote was obtained and filed by the Landlord but is addressed to the Tenant and offers the following work for payment of AED 840: “Removal of wall tiles; Supply and installation of shattaf full set with pressure pipe, connector fittings, and gate valve (new line); Fixing of wall tiles with grouting works”. In a letter sent to the Landlord much later on 11 March 2022 to which the quote was presumably appended, Markinstated: “We sent the quotation 13th January [this date appears to be incorrect; the quotation is dated 4 February 2021 and the Contract between the Landlord and the Tenant was, moreover, concluded only on 19 January 2021, while the quote is addressed to the Tenant] … and no feedback/response received”. (The Landlord’s counsel in the Appeal incorrectly submitted that it was Majora who obtained this quote from Markinand that it was sent to the Tenant for approval and ultimately rejected, notwithstanding that it is addressed to the Tenant and that the Landlord himself had stated in his application for permission to appeal: “Taj confirmed that they were asked to quote for the work (even though the Defendant had no permission from the Claimant). Taj confirmed that the Defendant rejected the quote on grounds it was too expensive.”)

8. On 28 February 2021, the Tenant emailed Ms Maka about several issues she said she was facing in the Apartment. These issues concerned sinks in a bathroom and the kitchen and an odour in the apartment apparently caused by the sewage system. The shattāf issue was not mentioned in the body of the email. There was, however, an attachment to the email entitled “… SHATTAF & DRAINAGE.pdf”. The content of this document is unknown to the Court.

9. On 7 March 2021, Ms Maka emailed the Tenant stating:

10. Later that day, the Tenant replied to Ms Maka stating:

It has not been made clear to the Court whether the Tenant was here speaking about a shattāf and drains or instead drains only.

11. On 15 March 2021, Ms Maka emailed the Tenant stating, amongst other things:

12. A shattāf was eventually installed in the Master Bathroom, though the circumstances of the installation are in dispute and have not been made clear to the Court. Photographs of the shattāf have been produced. Instead of having its own connection to the water supply system, the shattāf was installed, rather unusually I imagine, by way of an adapter to the nozzle of the bidet. I do not think an expert would be required to arrive at the following conclusion: the connection of the shattāf appears makeshift and the shattāf itself, made of plastic, looks low quality.

13. At around 11 am on 17 October 2021, a water leakage originating in the Apartment was observed by security. The Tenant was out at the time. The security closed the water supply to the Apartment. By that point, however, the whole apartment had already flooded.

14. The Tenant returned to the Apartment at around 4 pm. She promptly sent messages to Marni, Managing Partner of Majora, asking, amongst other things, for Ms Makya to assist her in finding new accommodation on account of various issues, in addition to the flood, that she said she had faced in the apartment. The Tenant sent Ms Makya a video, which the Court has not seen, captioned: “This is what caused the shattāf to crack: the unusual water pressure.” Ms Makya replied to the Tenant the next day stating, “Sure. Let me see what we have coming up for rent.”

15. As stated above, it is common ground that the flood was caused, at least in the first instance, by the shattāf in the Master Bathroom bursting. Apparently the shattāf’s neckline had broken and water poured at high volume from a rip in the shattāf’s rubber inner tubing.

16. On 18 October 2021, Ms Maka emailed the Tenant, attaching an incident report produced by the building’s security. Ms Maka explained to the tenant that:

17. Numerous communications between the Tenant and Majora, by email and on WhatsApp, followed Ms Maka’s email of 18 October. I will not summarise or cite from them all and instead refer only to a few which sufficiently demonstrate the parties’ respective positions in the immediate aftermath of the Apartment’s flooding.

18. In a WhatsApp message sent to Ms Makya on 19 October 2021, the Tenant stated:

19. On the same day, and in response to an email from Ms Maka in which she stated to the Tenant “you have facilitated the shattaf installation and not the unit owner,” the Tenant stated:

20. On 20 October 2021, and a few emails later, the Tenant emailed Ms Maka saying:

21. On 20 October 2021 also, Ms Makya messaged the Tenant on WhatsApp saying, amongst other things, “You know that it was you who installed the shattāf. You yourself informed me yesterday that you are the one who installed it.” The Tenant replied to this message saying:

22. A critical question in this case is, in my judgment: who installed the shattāf? The judge below found, adopting an appointed expert’s finding, that “the main reason for the incident [i.e. the flood] is that the drainage was blocked which led to a flood in the Unit.” ([17]) (It is disputed by the Landlord that the openings in the floor of the Master Bathroom identified by the expert as drains were in fact drains. The Landlord submits that the openings are instead “floor clear outs,” and has submitted evidence in support of this claim. Taking a neutral position, I will refer to them as openings.) And inasmuch as it was the Landlord, not the Tenant, who had blocked the openings in the floor (it is not entirely clear from the parties’ submissions whether one or both of the openings were closed; to avoid prolixity, I will assume that both were closed), the Judge concluded that “the Defendant is not responsible for the flooding in the Unit which lead to the damage to the flooring.” ([17]) The Judge therefore found that the Landlord was responsible for the flood irrespective of, it can be safely inferred, who installed the shattāf, such that there was no need to identify that person. I take a different view.

23. It appears to be common ground that the openings in the Master Bathroom floor were blocked before the shattāf’s malfunction and that, crucially, both the Landlord and the Tenant were aware of this: the Landlord had the openings closed following the Tenant’s complaint about a bad odour in the Apartment apparently emanating from the sewage system. Whoever installed the shattāf must have been aware, therefore, that it was being installed in a room which did not feature any floor openings potentially capable of draining water in the event of a flood. And if there was any doubt about this on the part of the Tenant in particular, such doubt should have been dispelled by Ms Maka’s email of 7 March 2021 in which “New drainage hole” seems to have been included as part of the shattāf installation proposal.

24. It follows, in my view, that whether it was the Landlord or the Tenant who installed it, the shattāf was knowingly connected in a room apparently incapable of draining any water that might collect on its floor, comparable to a living or dining room. And it follows, in turn, that even if the openings in the Master Bathroom floor are indeed drains, it would be incorrect to say, in my judgment, that their blocking caused the flood as, for all intents and purposes, those drains did not exist or were not available at the time the shattāf was installed and until the flood finally occurred, as both the Landlord and the Tenant were aware. The identity of the person who installed the shattāf in such a condition then becomes, in my judgment, of central importance.

25. A similar point can be made about any high water pressure which the Apartment may have suffered from. On the Tenant’s case, high water pressure was a pre-existing problem at the time the shattāf was connected and one known to both her and the Landlord. In my view,and presuming that there was high water pressure in the Apartment, this would suggest that whoever installed the shattāf, whether the Landlord or the Tenant, did not act with reasonable case in doing so. Any high water pressure cannot operate, in my judgment, to interrupt the chain of causation between the burst shattāf and the damaged subsequently caused to the flooring.

26. The Contract was comprised of a main document entitled Tenancy Contract and an addendum. Amongst other things, and as material, the Contract provided as follows. By clause 5 of the Tenancy Contract it was agreed that “If the Tenant wishes to carry out repairs or adjustments to the subject of the tenancy he has to do it at his own expense but has to advise and ask permission of the Landlord”. By clause 7 of the addendum, the parties agreed that:

Major maintenance is the sole responsibility of the Landlord including the Chiller charges. Major maintenance is described as maintenance on the structure of the building and include, but is not exhausted by work required to the roof, drainage, major plumbing, electrical, including maintenance for private swimming pool pumping equipment where present, and A/c. Minor maintenance is the responsibility of the Tenant. Minor maintenance is described as maintenance on leaking faucets and exposed pipes in the kitchen, laundry, toilets, faulty locks, fused light globes, A/c filter cleaning etc…

By clause 20 of the addendum the parties agreed that “The Tenant is to obtain the Landlord’s written consent prior to making any alterations to the property.” And by clause 25 of the addendum, the Tenant agreed

to return the property … in the condition it was initially handed over to him at the end of the tenancy, fair wear and tear accepted [clearly this final word is intended to be “excepted”] … The cost of painting, repairs and damage deemed to be the responsibility of the Tenant and/or as a direct result of the tenant occupancy shall be deducted from the security deposit in order to return the property to its original condition as handed over to the tenant…

27. The parties seem to agree that the installation of a shattāf falls within clause 7 of the addendum and more specifically under the “major maintenance” category which falls within the Landlord’s responsibility. While such provisions are usually invoked by landlords or tenants who claim that their counterparty has responsibility to pay for certain maintenance, both the Tenant and the Landlord apparently interpret clause 7 of the addendum as also demarcating the authority of the Landlord and the Tenant in respect of major and minor maintenance, respectively, such that, for example, the Tenant would not have authority to complete major maintenance without the Landlord’s approval even if she was willing to pay for it. Clause 5 of the Tenancy Contract and clause 20 of the addendum also provide, in different iterations, that the Landlord’s permission was required by the Tenant before making any changes to the Apartment, with the latter clause providing that the Landlord’s written permission was also a requirement.

28. The Court has been shown no communication between the Landlord and the Tenant in relation to the shattāf after Ms Maka’s email of 15 March 2021 in which she, as has been seen, confirmed that the Tenant was required to pay for the installation. The Tenant’s case is that the building’s maintenance team, with the consent of the Landlord, subsequently installed the shattāf. The Landlord’s case is that it was the Tenant who, without his consent, installed it. For the reasons which follow, in my judgment the preponderance of evidence suggests that it was the Tenant, not the Landlord, who installed the shattāf.

29. First, there is no evidence that at any time the Landlord was willing to pay for the installation of the shattāf himself. Until the last relevant communication sent on his behalf which the Court has seen, it was insisted that payment for the shattāf would be the Tenant’s responsibility. Nor has the Tenant alleged that the Landlord’s position subsequently changed and nor has she pleaded to the Court that she agreed to pay for the installation and in fact paid for it, though at least one WhatsApp message sent to Ms Makya but not specifically brought to the Court’s attention suggests that it is her position that she did pay for installation of the shattāf. No evidence of any such payment has been produced in any event. Indeed, in the last communication from the Tenant dealing with the shattāf issue which the Court has seen, the Tenant appears to categorically refuse to pay for its installation. Nor has the Tenant pleaded or otherwise explained that she subsequently changed her position, much less evidenced any such change of position. The result of the foregoing is this: the evidence before the Court suggests that a proposal was made on behalf of the Landlord for installation of a shattāf which included the Tenant paying for the work, but this proposal was rejected by the Tenant and no further steps were taken between the Landlord and the Tenant on the matter.

30. Second, we know that there was no shattāf installed by 7 March 2021 when the Tenant sent her final communication on the shattāf issue to Ms Maka. By that point, the Tenant was already over a month into her tenancy and therefore had exclusive possession of the Apartment then and on the date, whenever it was, on which the shattāf was installed. In other words, whoever installed the shattāf, the Tenant had exclusive possession of the Apartment at the time. It has not been alleged by the Tenant that the Apartment was entered and the shattāf installed without her knowledge and permission. The proper inference to be drawn, in my judgment, is that the opposite is correct: the Apartment was entered and the shattāf installed with her knowledge and permission. Nor is it readily conceivable that the Tenant would not have a reasonable recollection of the occasion: the shattāf was important enough to the Tenant for her to threaten to terminate the Contract if one was not installed. Yet the Tenant has not informed the Court of the date on or even the period within which the shattāf was installed nor of anything that might have assisted the identification of those who completed the work, like the number of workers, their names and/or physical appearances. Instead, the Court is told simply that it was the maintenance company that installed the shattāf i.e. at some unidentified time and through some unidentified persons. Presuming the Tenant’s case to be correct for a moment, all this foregoing constitutes an inexplicable gap in her factual case. Conversely, and now taking the Landlord’s case to be correct, the Landlord has apparently obtained from the security of the House building a log of all of the companies which visited the apartment during the relevant period and has contacted those companies and asked them about the nature of the work completed during their respective visits. Moreover, the Landlord has sought and obtained from his agent, Majora, and from House’s building maintenance company, Makbule Management and Supervision Services (“Makbule”), confirmation of whether or not these companies installed the shattāf. All the companies responded to the Landlord that they did not do the work or at least had no records of doing the work. In my judgment, the Landlord’s relatively thorough investigation stands in stark contrast to the Tenant’s bare allegation that the building’s maintenance company installed the shattāf.

31. Thirdly, even if the maintenance company or one or some of its workers installed the shattāf, it has not been explained why that would necessarily mean that the Landlord rather than the Tenant was responsible for its installation. It is possible, after all, that a tenant enters into an arrangement with a building’s maintenance company or more likely one or some of its workers to do certain work, notwithstanding that he does not have permission to do so.

32. Fourthly, it is evident from Ms Maka’s email to the Tenant on 15 March 2021 that, at least until the time of sending that email, the shattāf installation work envisioned by or on behalf of the Landlord included what appears to be a new and independent connection for the shattāf and the drilling of a drain in the Master Bathroom floor. It is not unreasonable to extract from this proposal an indication of the quality that the Landlord required for any shattāf installed. The shattāf in fact installed fell far short of this level of quality. The parties are in agreement that it was low quality. To the extent anything can be inferred from these two facts—and I do not give much weight to the point—in my judgment it is that the Landlord was less likely to have authorised or otherwise have been involved in the installation of the low-quality shattāf in fact installed.

33. Fifthly, the Markinquote that has been shown to the Court is, as mentioned above, addressed to the Tenant. If it was issued to the Tenant on her request and on 4 February 2021, this would suggest, albeit inconclusively, that the Tenant was taking steps to install a shattāf independently of the Landlord. Let it be recalled that, in her emails of 7 and 15 March 2021, Ms Maka offered to obtain a quote for the installation of a shattāf which strongly suggests that, until at least 15 March 2021, the Landlord and his agent had not themselves obtained a quote for the work. As with the previous point, I do not give this one much weight. But there is a suggestion that the Tenant may have been willing to install a shattāf independently of the Landlord, notwithstanding the clauses of the Contract cited above which required her to obtain the Landlord’s permission before doing that type of work in the apartment.

34. Sixthly and finally, no written permission of the Landlord for the installation of a shattāf generally or for the installation of a particular one has been shown to the Court, while, as has been seen, clause 20 of the addendum provided that this was a requirement. If such written permission existed, no doubt it would have been submitted to the Court. Nor, in my view, can written consent of the Landlord for the installation of the shattāf be inferred from Ms Maka’s emails of 7 and 15 March 2021. At most, in my judgment, these emails suggest a willingness—or potentially even an agreement—to consent to the work proposed in the emails. It has not been argued—and it cannot be argued in my opinion—that the shattāf in fact installed corresponded to the work proposed in Ms Maka’s emails. In my view, any permission which could possibly be extracted from these emails would not extend beyond the work proposed within them and would not, therefore, extend to the shattāf in fact installed in the Master Bathroom.

35. It has been pointed out on the Tenant’s behalf that, in his email to Ms Maka on 18 October 2021, that is, the day after the flood, Makbule’s Community Manager, Saju Sukumaran, instructed Ms Maka to “arrange to get the parquet removed at the soonest” and also, importantly, to “have the broken shattaf replaced.” It has been suggested that the second request demonstrates that the shattāf was installed by and the responsibility of the Landlord. Why else would the building’s maintenance be asking the Landlord’s agent to replace it? I do not think that this is a strong point. There is no evidence that Mr Marufinstructed Ms Maka after a consideration of the circumstances of the shattāf’s installation and following an analysis of the person legally responsible for it. He may well have simply been instructing Ms Maka to see to it that that which was damaged in the apartment was fixed. Moreover, if the shattāf had burst, presumably it posed a serious flood risk until it was either fixed or removed. It is likely that Mr Maruf was simply addressing that risk.

36. For these reasons, I prefer the Landlord’s evidence and case and I find, accordingly, that the Tenant is responsible for the installation of the shattāf.

37. What is the consequence of the Tenant, as I have found, having installed the shattāf? In my judgment, it is firstly that the installation must be categorised as done without authority or permission and it, together with the damage it caused, must be regarded as the Tenant’s responsibility. Secondly, clause 25 of the addendum of the Contract is engaged: the Tenant is liable to pay the cost of repairing the damage caused to the apartment, which in this case is the cost of restoring the parquet flooring. In my view, the Judgment is wrong insofar as it found otherwise.

38. The Landlord claims that it cost him AED 50,000 to replace the parquet flooring. I have not seen an invoice for this amount or any evidence that it was or will be paid. Instead, I have seen a quote for the work from company called Mansin (“Mansin”) for AED 40,300. This quote was sent by Ms Maka to the Tenant in her email of 18 October 2021 cited at paragraph [16] above.

39. The Tenant has presented to the Court three other quotes, two of which are from Mansin also, apparently for the same or similar work and which are all considerably less expensive than that presented by the Landlord. The difference between the Tenant’s two Mansin quotes is that one includes as an item removal of the old flooring. Both quotes are dated 27 November 2021. It may be that by that point the old flooring had already been removed from the Apartment and, upon receiving a quote with floor removal included, the Tenant requested a further quote with it taken out. Needless to say, the Tenant is responsible for all of the work, including removal of the old flooring.

40. A DIFC Tenancy Information Registration Certificate dated 19 January 2021 and issued by the DIFC Authority which the Tenant has filed records the size of the Apartment as being 115.26 m². The quote received by the Landlord from Mansin quotes for 110 m² worth of flooring. As is evident from photographs and a video filed by the Landlord, the Apartment’s two bathrooms and kitchen did not have parquet flooring and instead had other types of flooring—it looks like the bathrooms tiles and the kitchen had vinyl—which were evidently unaffected by the flood. Clearly the difference between the floor size in the Landlord’s Mansin quote and the actual size of the Apartment is supposed to account for the parts of the Apartment’s flooring that was not parquet flooring. 5.26 m²—the difference between 115.26 m² and 110 m²—however, accounts for only 4.6% of the floor of the Apartment. The floors of the two bathrooms and the kitchen, needless to say, comprise more than 4.6% of the floor area of the one-bedroom apartment.

41. The Tenant’s two Mansinquotes are for 95 m² of flooring, which corresponds to 82.4% of Apartment’s floor. In my judgment, 95 m² is much more likely to be the area of the Apartment’s hallway, living room and bedroom. Moreover, the Landlord’s Mansin quote is dated 19 October 2021 while the Tenant’s Mansin quote is dated 27 November 2021. It is possible that between giving a quote to the Landlord and giving a quote to the Tenant, Mansinmade a precise measurement of the part of the Apartment’s floor which required parquet flooring. It is less likely that Mansin correctly measured the relevant parts of the Apartment’s flooring in October before incorrectly measuring it a mere month and a week later in late November. The Landlord has not disputed that the area of parquet flooring in the Apartment was 95 m².

42. All things considered, in my view the Tenant’s quote from Mansinwhich included the cost of removing the old flooring is the most reliable indication of the total cost of restoring the parquet flooring. That quote was for AED 27,183. The Tenant shall pay that amount to the Landlord.

43. Finally, it is worth mentioning that while I have found that the Tenant is liable for the damage caused by the malfunctioned shattāf as between her and the Landlord, whether some other person is liable to her for the same damage is altogether another question.