May 30, 2023 SCT - JUDGMENTS AND ORDERS
Claim No. SCT 066/2023
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE SMALL CLAIMS TRIBUNAL
BETWEEN
MUQIT
Claimant
and
MINUT
Defendant
ORDER WITH REASONS OF SCT JUDGE HAYLEY NORTON
UPON my Order dated 13 April 2023 (the “Order”)
AND UPON reviewing the Defendant’s Application No. SCT-066-2023/2 dated 3 May 2023 seeking to set aside the Order (the “Application”)
AND UPON reviewing the court file and documents contained therein
AND PURSUANT TO Rules 53.35 to 53.37 and 53.83 of the Rules of the DIFC Courts (“RDC”)
IT IS HEREBY ORDERED THAT:
1. The Application shall be granted.
2. The Order shall be set aside.
3. The Defendant shall file its response to this Claim via the eRegistry online portal by no later than 4pm on [7 days from the date of this Order].
Issued by:
Delvin Sumo
SCT Judge and Assistant Registrar
Date of Issue: 30 May 2023
At: 12pm
SCHEDULE OF REASONS
The Parties
1. The Claimant is Muqit (the “Claimant”), a company registered and located in Dubai, the UAE.
2. The Defendant is Minut (the “Defendant”), a company registered and located in Dubai, the UAE.
Background
3. On 9 February 2023, the Claimant filed a claim with the DIFC Courts’ Small Claims Tribunal (the “SCT”) seeking payment of alleged unpaid invoices by the Defendant in the sum of AED 58,537.50 (the “Claim”).
4. On 23 March 2023, the Claimant filed a Certificate of Service confirming that the Defendant had been served notice of the Claim by way of newspaper publication.
5. Thereafter, a consultation was listed before me on 11 April 2023, at which the Claimant’s representative attended and the Defendant failed to appear, although served notice of the Claim.
6. Pursuant to Rule 53.32 of the Rules of the DIFC Courts (“RDC”), where a party fails to appear at a consultation, the SCT Judge may decide the small claim against that party or adjourn the consultation.
7. On 13 April 2023, pursuant to RDC 53.32, I made an order against the Defendant in the sum of AED 58,537.50, in addition to an order that the Defendant pay the Claimant the court filing fee in the sum of AED 2,926.88 (the “Order”).
8. On 3 May 2023, the Defendant filed Application No. SCT-066-2023/2 seeking to set aside the Order (the “Application”). The Claimant filed its response to the Application on 11 May 2023.
9. The Defendant requested that the Application be determined at a hearing which was duly held before me on 24 May 2023 (the “Hearing”). At the Hearing, the Claimant’s and the Defendant’s representatives attended.
Discussion
10. RDC 53.34 and 53.35 state as follows:
“53.34
A party who was neither present nor represented at the consultation and against whom the claim has been decided in accordance with Rule 53.32 …may apply for that order to be set aside and the claim reinstated.
53.35
A party who applies for an Order to be set aside in accordance with Rule 53.34, must make the application not more than 7 days after the day on which notice of the Order was served on him. The SCT judge who’s Order is subject to an application to set aside may extend the time for the filing of an application to set aside an order.”
11. Pursuant to RDC 53.35, an application to aside an order must be made not more than 7 days after the day on which the notice of the order was served on him. Although I note that the Defendant filed its Application on 3 May 2023 (20 days after the Order was issued), the Claimant has filed no evidence with the court to demonstrate the date of service of the Order. In the absence of any evidence from the Claimant, I shall proceed to determine the Defendant’s Application despite the time period from the date the Order was issued to the date the Application was filed with the Court.
12. RDC 53.36 sets out the requirements that an applicant must demonstrate for an order to be set aside and the claim be reinstated. The SCT Judge may grant an application only if the applicant has (i) a good reason for not attending the consultation; or (ii) has a real prospect of success in the small claim.
13. The applicant must demonstrate at least one of the requirements set out above to be successful in its application.
14. The Defendant has set out various arguments within its Application relating to service of the Claim and submits that the Claim is “completely not acceptable”.
15. In particular, the Defendant states:
“…this case is completely one sided. The Claimant didn’t serve the notice properly and the claim they are asking is completely not acceptable.
…
the Cable were stolen, we immediately rise the police complaint in Dubai Police. The Dubai police is investigating this issue until now we didn’t receive any possible result.
…
there is no service given by them, but they still charge the rent, this is not acceptable at all by any fair practice.” [sic]
16. In response, the Claimant submits as follows:
“The defendant was kept in all our email communications & we have published the newspaper add as well to notify them about the court case. It is the case of ignorance that they avoided the court proceedings despite the communication was sent to the below mentioned email ID.
test@difccourts.aeDefendant has notified us to take the generator on 30/08/2022 by email received from their facility department Mr. Minal but not mentioning that the cables has been stolen from their custody of renting period.
We Reached on site 01/09/2022 and came to know that cables are missing from last week as confirmed by their Staff Mr. Minal in written email dated 01/09/2022. (Attached email document).
We have not delayed in reacting to remove the machine from site at all.
Further investigating, Mr. Mojan defendant has confirmed that cables are missing from the sit e during their custody & He agreed to pay us the 50% of Cables value and cheque release which was later confirmed by him through email Dated 25/10/2022 & 26/10/2022.
…
After the payment confirmation by Mr. Mojan to settle the matter amicably, they started avoiding our calls & emails for the payment.” [sic]
17. I do not find it prudent to make a final determination on the merits of the Claim at this juncture, but to merely decide on whether the Defendant has demonstrated at least one of the two requirements set out at paragraph 12 of this Order.
18. When seeking to determine whether the Defendant has demonstrated ‘a real prospect of success’ (i.e. requirement 2), I will need to consider whether the Defendant has demonstrated a ‘realistic’ rather than a ‘fanciful’ prospect of success, as confirmed by H.E Shamlan Al Sawalehi in the matter of Al Tamimi v Jorum Ltd & Anor [2016] DIFC CFI 028.
19. Having considered the parties’ oral and written submissions, I find that the Defendant has raised a number of allegations regarding the services provided by the Claimant and raises doubt as to the sums being sought by the Claimant in its Claim. It is important to note that the Order was issued in the absence of any submissions from the Defendant and was based solely upon the Claimant’s submissions alone. In my view, the Defendant has demonstrated a ‘realistic’ prospect of success in this Claim and the court would benefit from having sight of the Defendant’s fully pleaded defence.
20. Accordingly, I order that the Application be granted, and the Order be set aside.
21. The Defendant shall file its response to this Claim via the eRegistry online portal by no later than 4pm on [7 days after issuing this Order].
