May 30, 2024 SCT - JUDGMENTS AND ORDERS
Claim No: SCT 203/2023
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE SMALL CLAIMS TRIBUNAL
BETWEEN
NEVILLE
Claimant
and
NETTIE
Defendant
REASONS FOR THE ORDER OF H.E. JUSTICE MAHA AL MHEIRI DATED 21 MAY 2024
1. On 31 May 2023, the Claimant filed a claim with the DIFC Courts’ Small Claims Tribunal (the “SCT”) seeking payment from the Defendant for alleged unpaid employment entitlements in the amount of AED 41,591.45 (the “Claim”).
2. On 16 June 2023, the Claimant filed a Certificate of Service confirming that the Defendant had been served notice of the Claim by delivering the Claim Form at the Defendant’s registered address.
3. Thereafter, a Consultation was listed before SCT Judge Delvin Sumo on 10 July 2023, at which the Claimant attended and the Defendant failed to appear, although served notice of the Claim.
4. On 10 July 2023, following the Defendant’s failure to attend the Consultation and pursuant to RDC 53.32, SCT Judge Delvin Sumo made an order against the Defendant in the sum of AED 41,591.45, in addition to an order that the Defendant pay the Claimant the DIFC Courts’ filing fee in the sum of AED 831.82 (the “Default Order”).
5. On 22 November 2023, the Defendant filed an Application Notice seeking to set aside the Order (the “Application”), which was dismissed by the Order of SCT Judge Delvin Sumo on 15 December 2023.
6. On 17 April 2024, the Defendant filed a further Application Notice seeking to set aside the Default Order (the “Second Application”) and the Defendant requested that the Second Application be determined at a hearing which was duly held before me on 16 May 2024 (the “Hearing”). At the Hearing, the Claimant and the Defendant’s representative, Mr. Nessim, were in attendance.
7. The relevant rules regarding an application to set aside an order are set out at RDC 53.34 and 53.35, and 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.”
8. At the outset, I note that the Second Application was filed on 17 April 2024, which exceeds the 7 day deadline for the filing of an application to set aside the Default Order. The Court finds that although the filing of the Second Application exceeds the 7 day period the Court is at view to extend the period of time to file the Second Application as it finds merit in the Defendant’s evidence to challenge the claim.
9. Pursuant to RDC 53.34, an application to set aside an order made against a party who was neither present nor represented at the consultation and against whom the claim has been decided in accordance with Rule 53.34 may apply for that order to be set aside and the claim reinstated.
10. 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.
11. The Defendant must demonstrate at least one of the requirements set out above to be successful in its Second Application. When seeking to determine whether the Defendant has demonstrated a real prospect of success, 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.
12. In support of its Second Application, the Defendant is seeking to rely upon a document entitled ‘Application for Internal Transfer’ dated 12 January 2023, which, the Defendant alleges, has been signed by the Claimant and demonstrates that the Claimant has received all outstanding sums owing to him with regards to his end of service entitlements. At the Hearing, the Defendant confirmed that this document had not previously been considered by the Court. Having reviewed the document, I am persuaded by the Defendant’s evidence and find that it has demonstrated a ‘realistic’ prospect of success in challenging this claim.
13. For my reasons above, I hereby order that the Second Application is granted and the Default Order be set aside.
Issued by:
Hayley Norton
SCT Judge and Assistant Registrar
Date of Issue: 30 May 2024
At: 8am
