April 27, 2023 SCT - JUDGMENTS AND ORDERS
Claim No: SCT 117/2023
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
MOKHIT
Claimant
and
MARU
Defendant
| Hearing : | 19 April 2023 |
|---|---|
| Judgment : | 27 April 2023 |
JUDGMENT OF H.E. JUSTICE NASSIR AL NASSER
UPON a Hearing having been listed before H.E Justice Nassir Al Nasser on 19 April 2023, with the Claimant’s and the Defendant’s representatives 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 75,600.01 including 5% VAT.
2. The Defendant shall pay the Claimant the Court fees in the sum of AED 3,780.
Issued by:
Hayley Norton
SCT Judge and Assistant Registrar
Date of Issue: 27 April 2023
At: 11am
THE REASONS
Parties
1. The Claimant is Mokhit (the “Claimant”), a company registered in Dubai, located at Office 301, Building 4, Emaar Business Park, Sheikh Zayed Road, Dubai, UAE.
2. The Defendant is Maru(the “Defendant”), a company registered in the DIFC and located at, DIFC, Dubai, UAE.
Background and Procedural History
3. The underlying dispute is in regards to permanent recruitment service terms and conditions signed by the parties and dated 16 November 2020 (the “Agreement”).
4. On 13 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 75,600.01.
5. On 20 March 2023, the Defendant filed an Acknowledgment of Service with the intention to defend the whole claim.
6. The parties met for a Consultation with SCT Judge Maitha Al Shihhe on 3 and 12 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 19 April 2023, at which the Claimant’s and the Defendant’s representatives were in attendance.
Claim
8. The Claimant submits that on 17 August 2022 it provided the Defendant details of candidates for the role of Chief Technology Officer, in accordance with the Agreement.
9. In October 2022, it was confirmed by the candidate whose details had been provided by the Claimant to the Defendant for the role of Chief Technology Officer that he had started employment with the Defendant.
10. Consequently, on 13 October 2022, the Claimant raised an invoice to the value of AED 72,000 + VAT in accordance with the terms of the Agreement.
11. Due to the Defendant’s failure to pay the invoice, the Claimant filed a claim against the Defendant for the sum of AED 75,600.01.
Defence
12. The Defendant submits that Clause 4 of the Agreement provides the following:
“once an Applicant (“Candidate”) has been introduced to the Client (“The Defendant”), the ownership of that Applicant will belong to MOKHIT (“The Claimant”) for a period of 12 months. If the Client has prior knowledge of an Applicant before MOKHIT’s first introduction, the Client shall notify MOKHIT within 15 Calendar days of the introduction. In the absence of such notification the Client shall waive the right to cite prior knowledge as a reason for non-payment of any fee”.
13. The Defendant submits that on 18 August 2022 the Defendant notified the Claimant via telephone (within the specified 15 day period) that the Defendant already had prior knowledge of the candidate and had already been in communication with him at that time.
14. The Defendant submits that as per the Agreement, there is no explicit mention of written notice, hence the Defendant did not deem it necessary to provide written notice and verbal notice was already provided on 18 August 2022.
15. Therefore, the Defendant requests the Court to dismiss the Claimant’s claim.
Finding
16. The question is whether the Defendant informed the Claimant pursuant to Clause 4 of the Agreement.
17. The Claimant provides that at least one phone call was conducted between the Claimant and the Defendant on 18 August 2022, in relation to matters concerning the contract terms. The Claimant adds that they were never informed by the Defendant of prior knowledge of the candidate.
18. The Defendant submits that the amendment terms from the Claimant were not acceptable by the Defendant. Therefore, a phone call took place on 18 August 2022, concluding that until the relevant points in the Agreement were amended, the Defendant will not engage with the Claimant. The Defendant adds that during the phone call, it was also explicitly made clear that the Defendant was already in touch with the candidate shared by the Claimant and also no further profiles were to be shared with the Defendant until the terms have been agreed upon by both parties.
19. The Claimant provided evidence showing that they forwarded the candidate’s cv to the Defendant. In addition, the Claimant submitted to the Court a conversation they had with the candidate, in which he confirms that the Defendant contacted him in the week commencing 17 August 2022.
20. The Defendant failed to provide evidence to show that they verbally communicated with the Claimant about the candidate within the specified 15-day period.
21. Therefore, in the absence of any evidence to support the Defendant’s argument that they informed the Claimant of the candidate pursuant to clause 4 of the Agreement, I find that the Defendant is liable to pay the Claimant pursuant to the terms of the Agreement.
22. I shall consider the payment pursuant to the current Agreement, as the parties failed to agree on an amendment and failed to provide evidence to the Courts that the Agreement was terminated prior to introducing the candidate.
23. The Claimant provided a copy of the invoice sent to the Defendant on 13 October 2022. As per the invoice, the Claimant is seeking payment in the sum of AED 75,600.01 calculated pursuant to clause 3 of the Agreement which provides the following: “Mokhit’s introduction fee is calculated on a percentage of the first year’s guaranteed remuneration of an Applicant introduced by Mokhit to the Client. The Applicant’s remuneration includes any guaranteed bonuses, and allowances such as housing, transport and living. [Allowances such as Schooling, medical, flights, laptop or mobile are excluded from the calculation.] Annual fixed salary x 12%.”
Conclusion
24. In light of the aforementioned, the Defendant shall pay the Claimant the sum of AED 75,600.01 including 5% VAT.
25. The Defendant shall pay the Claimant the Court fees in the sum of AED 3,780.
