September 13, 2024 SCT - JUDGMENTS AND ORDERS
Claim No: SCT 141/2024
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURT OF FIRST INSTANCE
BETWEEN
NORMA
Claimant/Applicant
and
NUNZIO
Defendant/Respondent
ORDER WITH REASONS OF JUSTICE MICHAEL BLACK KC
UPON reviewing the Judgment of H.E. Justice Nassir Al Nasser (the “Judge”) dated 12 August 2024 (the “Judgment”)
AND UPON reviewing the Claimant’s Appeal Notice dated 23 August 2024 seeking permission to appeal the Judgment (the “Application”)
AND UPON considering the documents and submissions filed by both parties and recorded on the case file
IT IS HEREBY ORDERED THAT:
1. The Application is refused.
2. Each party shall bear their own costs of the Application.
Issued by:
Delvin Sumo
SCT Judge and Assistant Registrar
Date of Issue: 13 September 2024
At: 8am
SCHEDULE OF REASONS
1. On 12 August 2024, H.E. Justice Nassir Al Nasser (the “Judge”) gave judgment dismissing the Claimant’s claim (the “Judgment”).
2. By an Appeal Notice dated 23 August 2023, the Claimant seeks permission to appeal (the “Application”). The Grounds of Appeal appear to suggest that the Judge failed to take account of the Defendant’s failure to submit proof of payment or system generated documents in accordance with the contract between the parties.
3. The Claim Form dated 1 April 2024 claimed that there was a contract in writing dated 27 February 2024 between the Claimant and the Defendant whereby the Claimant would act as a promoter for the Defendant’s restaurant and nightclub. Article 4 of the contract provided:
“It is agreed that the Second Party shall be entitled to receive a remuneration based on a Commission payout basis the Gross Sales after deduction of:
30% (which is the TOTAL all-inclusive deductible for ie. Food costs, Taxes, Card & Bank fees ETC ... )
The schedule of Commission Payout is a percentage (%) of the Gross Sales after Deductions, should the Second Party reach the pre-agreed Revenue thresholds below:
15% of Gross sales of AED 0 to AED 10,000.
20% of Gross sales of AED 10,001 to AED 20,000.
30% of Gross sales of AED 20,001 & above.
The First party agrees that the above figures shall be based on a comprehensive,
unedited and fully transparent Sales Report generated from the POS Systems as would ordinarily be presented to any Government authority or 3rd Party Auditors. The First party further agrees to furnish the said Sales Report on the same day of the Promotional Night at closing time deemed to be a time no later than 0500hrs. Both parties further agree that the only acceptable format for the said Sales Report will be Paper format and that no screenshots or digital copies will be accepted.”
4. It was alleged that the Defendant was in breach of the contract by failing to deliver the agreed forms of copy sales reports. Instead, the Defendant elected to create its own sales reports which were not generated by POS (point of sale) machines and provided the Claimant with commission statements lacking substantiation.
5. The Defendant served a somewhat prolix Defence on 15 April 2024, the gravamen of which was that the POS reports contained much more information than simply sales, the accounts team would need to review the sales report and filter the data accordingly, but the Defendant was willing to share the detailed report with the Claimant and along with the commission calculation.
6. The Defendant also alleged that the contract was subject to a probationary period. Article 2 provided that there was a 90 day trial period. The Defendant claimed that it suffered business losses and brand image damages due to an incident that occurred on the night leading to the termination of the probationary contract. It alleged that there was unruly behaviour by the promoters.
7. A Consultation before SCT Judge Delvin Sumo was listed for 16 May 2024. The Defendant failed to attend, and judgment was given for the Claimant in the sum of AED 26,527 plus the DIFC Courts’ filing fee. The Defendant applied to set the order aside on 23 May 2024 and on 5 June 2024 the order was set aside, and the Defendant was directed to serve a response to the claim by 7 June 2024.
8. On 7 June 2024, the Defendant reserved its Defence of 15 April 2024 accompanied by copies of the incident report on 16 March 2024, the agreement, summary documents called “Norma Report” purporting to show commissions due for 29 February 2024, 7 March 2024, 14 March 2024, and 15 March 2024, a similar report for “DJ Nash” dated 14 March 2024, and documents said to show payment.
9. On 25 June 2024, the Claimant filed a Reply to Defence and in particular exhibited an analysis purporting to show unpaid fees, lost wages and sales discrepancies. On 8 July 2024 the Claimant served further documents relating to payments.
10. On 19 July 2024, the Defendant filed further repetitive submissions.
11. On 5 August 2024, the hearing took place before the Judge.
12. On 6 August 2024, the Defendant served yet further submissions and some further documents. On 7 August 2024, the Claimant replied that the documents were not in accordance with the contract.
13. In his Judgment, the Judge directed himself to the relevant terms of the contract. He summarised the Claimant’s submissions and the documents submitted by the Defendant. He recalculated the gross sales presented by the Defendant for each of the days claimed. He found that there were no discrepancies in the Defendant’s calculations. He also found that that there was no evidence to support the Claimant’s claim for unpaid DJ’s fees or lost wages. He therefore dismissed the Claim.
14. Rule 53.94 of the Rules of the DIFC Courts (the “RDC”) provides that applications for permission to appeal may be considered by the Court of First Instance without a hearing.
15. Under RDC 53.87 the Court will allow an appeal where the decision was:
(1) wrong;
(2) unjust because of a serious procedural or other irregularity in the proceedings; or wrong in relation to any other matter provided for or under any law.
16. By RDC 53.90 permission to appeal may be given only where:
(1) the Court considers that the appeal would have a real prospect of success; or
(2) there is some other compelling reason why the appeal should be heard.
“A real prospect of success” means one that is more than fanciful.
17. The Appeal notice dated 23 August 2024 did not suggest that the Judge’s calculations were wrong but that the proof of payment was not that mandated by the contract.
18. On 4 September 2024, the Defendant served further submissions saying that it had put in the best evidence it had and had explained to the Court why that was the case.
19. On 5 September 2024, outside the 14 day time limit for filing Notice of Appeal effectively sought to appeal on new grounds in the following terms:
“Honorable Judge, Upon thorough review of the judgment, we respectfully submit the following grounds for appealing the decision: Lack of Evidence for Receipt of AED 8,275.47: The judgment asserts that Norma received AED 8,275.47 as commission payments. However, we contest this finding as there is no concrete evidence on record confirming the receipt of this amount by Norma. No bank statements or other definitive proof has been provided to validate this claim. Discrepancies in Commission Calculations: The calculations presented by the Nunzio and accepted by the Court seem to have discrepancies that were not sufficiently addressed during the hearing. We believe that these calculations were flawed and that a more detailed review is necessary to ensure accuracy and fairness. Lack of Consideration for Additional Claims: Norma additional claims, including unpaid DJ fees and lost wages, were dismissed on the basis that no evidence was provided. However, we maintain that the evidence submitted was not properly considered or evaluated, leading to an incorrect dismissal of these claims. Request for Reconsideration In light of the above, we respectfully request the Court to reconsider its judgment. Specifically, we seek to: Provide additional documentation and testimony to clarify the alleged receipt of AED 8,275.47. Present a detailed recalculation of the commissions owed under the Agreement. We believe that reconsidering the judgment with a full and fair evaluation of all relevant evidence will lead to a just outcome. Also, I would like to bring to your attention that it is known loop hole in the Entertainment promotion industry that unscrupulous Restaurant and Night Club owners/Managers will avoid providing the original Z-Report which reflects the final audited and Undisputable data from which to work out commission calculations. Instead Nunzio has put their own data which is manipulated on "Excel" because if they put for example total sales of 10,000 while the real total sales is even 12,000 there will be real payout discrepancy of 20% based on an illustrative calculation of 10% profitsharing. The Judge failed to identify this loop hole and he clearly left it unaddressed and hence dismissal of Claim with definitely wrong decision. Thank you for your attention to this matter. I attached the receipts of the only two payments that they have ever made.”
20. I will disregard the fact that these submissions may be out of time – it could be argued that they are no more than an expansion on the grounds in the Notice of Appeal. They seek to impugn the evidential findings of the Judge. He clearly considered the documentary evidence before him and explanations of the parties sufficient to enable him to reach his conclusions. An appellate court can set aside the factual findings of a trial judge but only where the trial judge is plainly wrong in the sense that no reasonable judge could reach that conclusion. I am not satisfied that the Claimant comes close to demonstrating that the Judge was plainly wrong. The Claimant’s proposed grounds of appeal seem to be no more than a repetition of the points made to the Judge which he rejected. I cannot see any identifiable error on the part of the Judge, let alone one so serious that no reasonable judge would have made it. I therefore refuse the Application.
