April 01, 2022 SCT - JUDGMENTS AND ORDERS
Claim No. SCT 012/2022
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
In the name of His Highness Sheikh Mohammed Bin Rashid Al Maktoum, Ruler of Dubai
IN THE SMALL CLAIMS TRIBUNAL
BEFORE SCT JUDGE DELVIN SUMO
BETWEEN
LAKSHAMANA
Claimant
and
LAMARIA
Defendant
| Hearing : | 18 March 2022 |
|---|---|
| Further submissions : | 30 March 2022 |
| Judgment : | 1 April 2022 |
JUDGMENT OF SCT JUDGE DELVIN SUMO
UPON this Claim Form being filed on 11 January 2022
AND UPON a Hearing having been listed before SCT Judge Delvin Sumo on 18 March 2022 with the Claimant and the Defendant’s representative in attendance
AND UPON considering all documents submitted on the Court file
IT IS HEREBY ORDERED THAT:
1. The Claim is dismissed.
2. Each party shall bear its own costs.
Issued by:
Ayesha Bin Kalban
SCT Judge and Registrar
Date of issue: 1 April 2022
At: 10am
THE REASONS
The Parties
1. The Claimant is Lakshamana (the “Claimant”), the owner of the unit 0000 in Park Towers, DIFC, Dubai, UAE (the “Unit”).
2. The Defendant is Lameria (the “Defendant”), an individual who signed the sale agreement for the Unit and who lives in Dubai, UAE.
Background and the Preceding History
3. The underlying dispute arises over a sale agreement entered into between the parties dated 19 October 2021 for the sale of the Unit (the “Agreement”).
4. On 11 January 2022, the Claimant filed a claim in the DIFC Courts’ Small Claims Tribunal (the “SCT”) seeking payment of fees allegedly owed to the Claimant by the Defendant pursuant to the Agreement in the sum of AED 111,000.
5. The matter was called for a Consultation before SCT Judge Maitha AlShehhi on 14 February 2022. Although both of the parties were in attendance, they failed to reach a settlement.
6. In accordance with the rules and the procedures of the SCT, the matter was referred to me for determination, pursuant to a hearing held on 18 March 2022 (the “Hearing”). After considering all documents and evidence submitted on the Court file, I give my judgment below.
The Claim
7. The Claimant submits that the deadline to conclude the sale of the Unit was 18 December 2021, however, the Defendant has not taken any further action since the signing of the Agreement.
8. The Claimant further states that the Defendant was well aware that the Unit is currently being rented until 30 June 2022, however, the Claimant submits that the Defendant is now claiming that she was not aware of this. The Claimant submits that the Defendant signed the Agreement which includes clause 4 – under Special Conditions in the Agreement stating the following:
“Property is currently tenanted until 30/06/2022 for an amount of AED 65,000 per annum. Rent refund will be pro-rata from date of transfer. A security deposit of AED 5,500 will be issued from Seller to Buyer upon transfer”.
9. The Claimant submits that she has suffered significant opportunity on selling the Unit due to the delay caused by the Defendant. Therefore, the Claimant claims the deposit amount paid by the Defendant as compensation, pursuant to clause 2.14 of the Agreement which reads as follows:
“If the Buyer withdraws from the agreed sale after signing this agreement of Sale, for any reason, the Buyer acknowledges the total deposit amount of AED 111,000 will be forfeited for not fulfilling the contractual obligations of this Agreement of Sale. Eighty Percent (80%) of which will be paid to the Seller as compensation and Twenty Percent (20%) + VAT to the Broker for professional fees. The Buyer will also be responsible to for both parties professional and sales progression fees + VAT that are detailed in this Agreement of Sale”.
10. Therefore, the Claimant claims the security deposit amount in the sum of AED 111,000.
The Defence
11. The Defendant, in short, submits that she does not intend to withdraw from the Agreement, however, she claims that the delay is attributed to circumstances outside her power.
12. The Defendant submits, firstly, that she was made to believe pursuant to the manner in which the Unit was marketed that that the current tenant would evacuate the Unit upon 2 months’ notice, regardless of clause 4 of the Agreement as stated in paragraph 8 of this Judgment, and the broker reassured her of this.
13. The Defendant further submits that she received a copy of the tenancy contract only on 16 November 2021 upon her request, and she claims to have never consented to this contract and the terms and conditions therein. The Claimant submits that the contract includes no provisions for termination by the landlord, and in fact, the tenant is allowed to renew the contract for an additional year.
14. Moreover, the Defendant claims that the Claimant breached clause 2.3 of the Agreement by marketing the Unit while the Agreement was signed between the parties. The Defendant claims that she was suffering major health issues since 2019, and she was attempting to avoid stressful situations as such. Clause 2.3 of the Agreement states the following:
“On payment of the deposit to the Broker, by the Buyer, the Seller, shall not either by himself or through his attorney and/or agent and/or representative, either directly or indirectly, through any person:
a. Market the property for sale to any third party”.
15. Furthermore, the Defendant turns to clause 2.7 of the Agreement and claims that the parties are in the extension period in accordance with the said clause, therefore, there is no delay as claimed by the Claimant. Clause 2.7 states the following:
“Should, on the date of transfer, the transfer not take place due to a delay by a third party (including but not limited to bank for either Buyer, Seller or the developer), Agreement of Sale will AUTOMATICALLY be extended for ninety (90) days (“Extension Period”)”.
16. Therefore, the Defendant denies the Claimant’s claim in its entirety.
Findings
17. In essence, the disagreement between the parties pertains to whether the Claimant should be paid the deposit amount in the sum of AED 111,000, pursuant to clause 2.14 of the Agreement, as compensation for the delay incurred to conclude the Agreement.
18. Firstly, I note that, clause 2.14 of the Agreement, as stated in paragraph 9 of this Judgment, may be invoked in the event that the Defendant withdraws from the Agreement. The Defendant has clearly stated that she does not intend to withdraw from the Agreement. The Claimant has further failed to provide proof or evidence demonstrating that the Defendant is withdrawing from the Agreement.
19. Furthermore, I find that the Claimant has failed to provide any proof or evidence demonstrating that she has incurred financial loss due to the delay caused in concluding the Agreement. In review of the submissions made by both parties, it seems that the parties are facing some disagreements on matters related to the Unit which may or may have not caused the delay in finalising the sale of the Unit. However, these matters are not set out to be issues in the Claim, and therefore should not be considered by this Court.
20. In light of the aforementioned, I find that this Claim shall be dismissed.
Conclusion
21. The Claimant’s Claim shall be dismissed.
22. Each party shall bear its own costs.
