Privacy Settings

Claim No: SCT 471/2022

IN THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF FIRST INSTANCE

BETWEEN

MAKET

Claimant/Respondent

and

MEPIS

Defendant/Appellant

ORDER WITH REASONS OF JUSTICE SIR JEREMY COOKE

UPON reviewing the Defendant’s Appeal Notice dated 25 May 2023 seeking permission to appeal (the “Permission Application”) against the Judgment of H.E. Justice Maha Al Mheiri dated 19 May 2023 (the “Judgment”)

AND UPON reviewing Rules 53.87, 53.91 and 53.94 of the Rules of the DIFC Courts (the “RDC”)

IT IS HEREBY ORDERED THAT:

1. Permission to appeal is granted on one ground alone, namely what sums were paid by the Claimant to the Defendant and what sum is therefore properly due by way of refund against the value of the work done by the Defendant.

2. The parties are given leave to adduce evidence on that ground alone to show what payments were made by the Claimant and received by the Defendant.

3. The Costs shall be reserved.

Issued by:
Hayley Norton
Assistant Registrar
Date of Issue: 2 June 2023
At: 8am

SCHEDULE OF REASONS

1. An appeal from the SCT takes place by way of review and not as a rehearing in the absence of special circumstances. The higher court does not allow new evidence and new submissions in the ordinary way.

2. The main ground for seeking permission to appeal, which is only granted if there are realistic prospects of success, is that objection is taken to the expert report ordered by the Court and on which it relied in making its findings. It is said that the Defendant was not given the opportunity to examine the expert report prior to its publication nor were its objections to it addressed by the Court. However, not only was there a previous joint report, but the Defendant was given the opportunity to address the SCT on the expert’s findings and the Defendant states that it made submissions about the alleged mistakes and incorrect statements of that expert. The Defendant was therefore able to present its objections which were taken into consideration by the SCT Judge - see paragraphs 20 - 29 of the SCT judgment. There is no realistic prospect of an Appeal Court overturning the findings of fact of the SCT judge that the Defendant had completed 45.89% of the contracted work when it left the site and of its limited entitlement to the sum of AED 199,332.05 only in respect of that work.

3. The SCT judgment records at paragraph 30 the agreement of the parties that the Claimant had paid the Defendant AED 434,369.25 in respect of work worth AED 199,332.05 and that therefore the Claimant was entitled to a refund of AED 235,037.20. The Defendant maintains now that only AED 375,770 was paid, and the Judgment does not refer to any evidence about such payment. In the absence of any finding on the evidence that this amount was paid, there are realistic prospects of success for the Defendant in showing that the lesser sum was paid and that the SCT mistakenly referred to an agreement that the higher sum was received by the Defendant.

4. Permission to appeal is therefore granted on one ground only, namely the issue whether the Claimant paid the sum of AED 434,369.25 or AED 375,770, with the potential impact on the sum payable by the Defendant to the Claimant. The parties are also given permission to adduce evidence as to what payments were made by the Claimant to the Defendant so that any error by the SCT judge can be rectified.