May 02, 2023 SCT - JUDGMENTS AND ORDERS
Claim No: SCT 101/2023
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 OF DIFC COURTS
BEFORE H.E. JUSTICE NASSIR AL NASSER
BETWEEN
MEPER
Claimant/Defendant in counterclaim
and
MOSUP
Defendant/Claimant in counterclaim
Hearing : | 25 April 2023 |
---|---|
Judgment : | 2 May 2023 |
JUDGMENT OF H.E. JUSTICE NASSIR AL NASSER
UPON a hearing having been listed before H.E Justice Nassir Al Nasser on 25 April 2023, with the Claimant’s representative and the Defendant in attendance
AND UPON reading the submissions and evidence filed and recorded on the Court file
IT IS HEREBY ORDERED THAT:
1. The Defendant shall pay the Claimant the sum of AED 5,000.
2. The Defendant’s Counterclaim shall be dismissed.
3. The Defendant shall pay the Claimant the Court fees in the sum of AED 367.50.
4. The Defendant shall bear its own cost of the Counterclaim.
Issued by:
Delvin Sumo
SCT Judge and Assistant Registrar
Date of Issue: 2 May 2023
At: 3pm
THE REASONS
Parties
1. The Claimant is Meper (the “Claimant”), a company registered in Dubai, locatedin Dubai, UAE.
2. The Defendant is Mosup (the “Defendant”), an individual, living in Dubai, UAE.
Background and Procedural History
3. The underlying dispute is in regards to alleged unpaid sums owed by the Defendant to the Claimant pursuant to an agreement dated 14 June 2021 (the “Agreement”).
4. On 2 March 2023, the Claimant filed a claim with the DIFC Courts’ Small Claims Tribunal (the “SCT”) seeking payment from the Defendant for alleged unpaid invoices arising from the Agreement in the amount of AED 5,000.
5. On 9 March 2023, the Defendant filed an Acknowledgment of Service with the intention to defend the whole claim. The Defendant also filed a Counterclaim claiming the sum of AED 11,667 (the “Counterclaim”).
6. The parties met for a Consultation with SCT Judge Maitha Al Shehhi on 20 March 2023 and 11 April 2023 but were unable to reach a settlement.
7. In line with the rules and procedures of the SCT, this matter was referred to me for determination, pursuant to a hearing held on 25 April 2023, at which the Claimant’s representative and the Defendant were in attendance (the “Hearing”).
Claim
8. The Claimant submits that on 14 June 2021, the parties entered into an Agreement to supply the Defendant with a 6-panel bi-folding door (“Door”) in the sum of AED 47,619 excluding tax to be paid in installments. The Claimant manufactured and shipped the Door from the UK.
9. The Claimant submits that upon delivery, the Defendant discovered a problem with the structural column and requested the Claimant to install only 4 panels of the Door instead of 6.
10. The Claimant submits that after installation, it issued an invoice for the Defendant to pay the final instalment in the sum of AED 5,000 (representing 10% of the total Agreement value) (the “Invoice”). However, the Defendant failed to pay the Invoice as he submits that the Claimant only installed a 4-panel door.
Defence
11. The Defendant submits that he invited the Claimant to his house to survey the property and to design a folding door system. The Claimant measured the space and designed a door system that was made of 6 panels that required destruction of part of the wall.
12. The Defendant adds that when the doors had been built, he arranged a construction company to handle the civil works and preparation of the space for the doors. The construction company notified the Defendant that part of wall was acting as a “supporting wall” and could not be destructed. Therefore, the Defendant had only space for 4 panels.
13. The Defendant submits that, as a trusted and experienced door producer, he relied on the Claimant to design the door system. Therefore, the Defendant submits that the Claimant is at fault for designing a system of 6 doors when only 4 doors could be fitted.
14. The Defendant submits that the Claimant is only entitled to the payment for 4 panels in the sum of AED 33,333.
15. Therefore, the Defendant filed a Counterclaim claiming that, up to date, he has paid the sum of AED 45,000. As such, the Claimant should be liable to refund him the sum of AED 11,667.
Finding
16. The Claimant provided a WhatsApp conversation dated 21 March 2021 (prior to signing the Agreement) between its representative and the Defendant, which reads as follows:
“The Defendant: “Does you quote include the Labour for cutting out the space and making good or should Mift quote for that?” [sic]
The Claimant: “Hi Mosup, our quote only includes installation of the new folding doors, unfortunately we would need a contractor to obtain approvals and create the opening”
The Defendant: “ok. I don’t think Miftquoted it so ill check with him.”
17. On 14 June 2021, the Defendant signed a confirmation order which reads as follows:
“I confirm that the specification, colours and sizes detailed in this Order Confirmation Ref. XXXX dated 14 June 2021 based on proposal ZZZZ is correct.
I understand that this is a binding order subject to the attached Meper – Terms & Conditions, on receipt of which Meper will proceed with ordering, design and assembly of materials. (please also refer to the attached standard terms and conditions.)” [sic]
18. Clause 2.3 of the Agreement provides that
“the Customer [the “Defendant”] is responsible for ensuring that the order confirmation is complete and accurate.”
19. Clause 3.4 of the Agreement provides that:
“the customer shall give Meper (the “Claimant”) advance notice before confirming an Order if there are special circumstances relation to the installation of the goods that may require amendment of the Order including, but not limited to, the goods being fitted in a property which in close proximity to the sea. The Customer acknowledges and agrees that in such circumstances the goods may require additional features including special finishes and hardwearing components.”
20. The Claimant informed the Defendant of the requirement of a contractor on March 2021; however, the Defendant confirmed the Order on June 2021.
21. I find that as per the WhatsApp conversation, Order Confirmation and the terms of the Agreement, the Defendant had the responsibility to obtain structural advice prior to confirming the order. Therefore, the Defendant is liable to pay the Claimant the remaining 10% of the Agreement in the sum of AED 5,000.
22. Due to my finding, I find that the Claimant is not liable to pay the Defendant the sum of AED 11,667. Hence, I dismiss the Defendant’s Counterclaim.
Conclusion
23. In light of the aforementioned, the Defendant shall pay the Claimant the sum of AED 5,000.
24. The Defendant’s Counterclaim shall be dismissed.
25. The Defendant shall pay the Claimant the Court fees in the sum of AED 367.5.
26. The Defendant shall bear its own cost of the Counterclaim.