May 01, 2024 SCT - JUDGMENTS AND ORDERS
Claim No: SCT 517/2023
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 LEASING TRIBUNAL
BEFORE SCT JUDGE MAITHA ALSHEHHI
BETWEEN
NILSA
Claimant
and
NOORI
Defendant
Hearing : | 25 April 2024 |
---|---|
Judgment : | 1 May 2024 |
JUDGMENT OF SCT JUDGE MAITHA ALSHEHHI
UPON the claim having been filed on 28 December 2023 (the “Claim”)
AND UPON the Defendant’s defence dated 3 January 2024 (the “Defence”)
AND UPON the Claimant’s reply to the Defence dated 29 January 2024
AND UPON the Order with Reasons of H.E Justice Maha Al Mheiri dated 25 March 2024 that the DIFC Courts have jurisdiction to hear and determine this Claim
AND UPON a hearing having been listed before SCT Judge Maitha AlShehhi on 25 April 2024 with the Claimant in attendance and the Defendant failing to attend although served notice of the Claim (the “Hearing”)
AND UPON reviewing the documents and evidence filed and recorded on the Court file
AND PURSUANT TO Rule 53.61 of the Rules of the DIFC Courts (“RDC”)
IT IS HEREBY ORDERED THAT:
1. The Defendant shall pay the Claimant the amount of AED 33,171.
2. The Defendant shall pay the Claimant the DIFC Courts’ filing fee in the amount of AED 1,658.54.
Issued by:
Hayley Norton
SCT Judge and Assistant Registrar
Date of issue: 1 May 2024
At: 8am
THE REASONS
Parties
1. The Claimant is Nilsa (the “Claimant”), the buyer located in DIFC, Dubai, UAE
2. The Defendant is Noori(the “Defendant”), the seller located in DIFC, Dubai, UAE.
The Claim
3. The Claimant and the Defendant entered into a sale agreement on 24 October 2023 (the “Agreement”) in respect of a Unit located in DIFC, Dubai, the UAE (the “Unit”).
4. The Claimant claims that as per clause 2.10 of the Agreement, the Defendant/seller must provide the Claimant/buyer with a pro-rata rent (service charge) refund calculated on the date of transfer which is set out to be in the amount of AED 33,171.
5. The Agreement defines the completion date to be “On or before 20.11.2023 as the final date for the Completion or such date as agreed in writing between the Parties”.
6. Despite this, the Claimant submits that clause 5.5 of the Agreement also provides for an additional 10 days in case of third-party delays, which in this case he claims was caused by the bank.
7. The Claimant states that he performed his obligations under the Agreement and the responsibility for booking and arranging the transfer lies with the agent and not himself as per clause 4.2 of the Agreement which states that it is the responsibility of the agent to do so after receiving the NOC.
8. The Claimant contends that the Defendant signed the “transfer Instrument” document on 27 November 2023 and the transfer could not have been possible before that date as this document is required to enable the agent to book the transfer appointment with the DIFC.
9. The Claimant further submits that it is not his fault that the completion date was delayed, as the agent could not find an earlier appointment with the DIFC. Therefore, the Claimant submits that the Defendant cannot use this against him as it was not his responsibility.
10. Additionally, the Claimant states that the Defendant did not physically attend the transfer appointment and only joined via video. Therefore, he submits that the Defendant cannot claim any money from him (AED 54,000) as the transfer process could be done online and the Defendant was never required or advised to attend in person.
11. In any event, given that the transfer process had been completed on 30 November 2023, the Claimant submits that the Defendant breached the Agreement by not paying the prerequisite amount without legal justification.
The Defence
12. The Defendant failed to attend the Hearing and in accordance with RDC 53.61, the SCT may decide the claim based on the Claimant’s evidence.
13. Notwithstanding the Defendant’s absence, he had submitted his Defence on 3 January 2024 which I shall take into consideration in arriving at my decision.
14. The Defendant submits that he travelled to Dubai on 20 November 2023 and had to extend his stay for 3 additional days in order to complete the transfer process, which was unsuccessful due to the Claimant’s actions in not securing an appointment with the DIFC and incurring a late fee with the DIFC.
15. The Defendant relies on clause 2.9 of the Agreement which reads as follows:
“The Seller has agreed to sell the property on or before the Completion Date. The transfer date is subject to DIFC confirmation or later date mutually agreed between the Parties in writing.”
16. Therefore, the Defendant takes the view that the Claimant is required to cover the costs of his travel expenses and the loss of productive time in the period between 21 November to 24 November 2023 in the amount of AED 54,000 for the delay in the transfer of the Unit.
17. I must note that the Defendant did not submit a counterclaim officially on the Courts’ record, as such, his request for payment is not registered as a claim against the Claimant, rather a defence only, and no order will be issued in this regard.
18. Consequently, the Defendant denies that there is any outstanding payment on his behalf.
Discussion
19. The Claimant contends that the fee incurred with the DIFC on the transfer date is not a late fee but an administrative fee.
20. I agree with the Claimant’s argument that it was the agent’s responsibility to book an appointment with the DIFC as evidenced in clause 4.2 of the Agreement “Upon receipt of the NOC, the Agent must book a transfer with the DIFC at the earliest possible time convenient for all Parties.”.
21. The Claimant sent the following email to the Defendant on 22 November 2023 to inform him about the unanticipated delay:
“Regarding the signature and exchange of the cheques, I have to tell you that unfortunately, we need to make use of the 10 days extra mentioned in the contract after closure date. The bank, which provides the mortgage, is still not ready. I chased them nearly every day during the whole process but the cheques will be ready finally by Friday this week. As in the contract agreed, I would prefer to hand over the cheques from my end (400K) at the date of transfer to follow the standard process - I hope you understand this.”
22. The above email shows that the Claimant was prompt to advise the Defendant about the delay and meanwhile there is no evidence before me to demonstrate that the Defendant had raised any objection to the delay on the transfer day or completion day.
23. The Claimant also submitted screenshots of WhatsApp conversations with the Defendant’s contact person (Mr Nasir) to show that the Defendant was informed about the delay.
24. I am of the view that even if the Claimant was late in obtaining the bank’s approval which resulted in obtaining a late transfer appointment with the DIFC, the fact remains that the Defendant proceeded to sign the transfer instrument document and attend the transfer appointment virtually on 27 November 2023, which is 7 days after the completion date mentioned in the Agreement and within the allowed 10 days period.
25. Furthermore, the Agreement does not give the Defendant the right to withhold payment.
26. As a result, I find that the Defendant’s action in attending the appointment virtually serves as evidence of having accepted the transfer date and the delay of the completion date and therefore the Defendant should be liable to pay the Claimant as per clause 2.10 of the Agreement in the amount of AED 33,171.
Findings
27. The Defendant shall pay the Claimant the outstanding amount of AED 33,171.
28. The Defendant shall pay the Claimant the DIFC Courts’ filing fee in the amount of AED 1,658.54