Claim No: SCT 206/2023
IN THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE SMALL CLAIMS TRIBUNAL
BETWEEN
MAB
Claimant
and
MACE
Defendant
ORDER WITH REASONS OF H.E. DEPUTY CHIEF JUSTICE ALI AL MADHANI
UPON this Claim being filed on 1 June 2023
AND UPON a hearing having been held before H.E Deputy Chief Justice Ali Al Madhani on 28 August 2023, with the parties in attendance.
AND UPON reviewing the documents and evidence filed and recorded on the Court file
AND PURSUANT TORule 53.61 of the Rules of the DIFC Courts (“RDC”)
IT IS HEREBY ORDERED THAT:
1. The Claimant’s Claim is dismissed.
2. The Claimant shall pay the Defendant the sum of AED 246,732.57 for her counterclaim under subsection Tiles.
3. The Claimant shall pay the Defendant the sum of AED 184.627.75, for her counterclaim under subtitle Delay.
4. The Defendant’s remaining counterclaims shall be dismissed.
5. The Claimant shall pay the Defendant the DIFC Courts’ filing fee in the sum of AED 21,568.
Issued by:
Delvin Sumo
SCT Judge and Assistant Registrar
Date of Issue: 25 December 2023
At: 3pm
SCHEDULE OF REASONS
Summary
1. This is a repayment claim sought by the Claimant arising out of a renovation agreement entered into by the parties. The Claimant says that the Court should find in its favour because it has completed its agreed scope of work to the best of its ability. The Defendant rejects the Claimant’s claim in its entirety and in response she has submitted a counterclaim against the Claimant for the poor workmanship, the delay that had been caused by the Claimant and the financial damages sustained as a result of the unsatisfactory work carried out on her premises.
2. The parties to these proceedings entered into a construction agreement dated 4 December 2021 (the “Agreement”) whereby the Claimant was appointed as a contractor for the purposes of renovating the Defendant's property by virtue of the terms prescribed under Agreement. The exact work is described on the quotation attached to the Agreement for a fixed fee of AED 1,374,623.25 (AED 1,443,354.41 inclusive of VAT) subject to any variations agreed between the parties as set out under clause 9 of the Agreement. Subsequently, the Defendant requested the Claimant to carry out further work that is outside the agreed scope of work, thereby falling within the scope of variation works amounting to AED 389,252 which resulted in the total owing balance of AED 1,832,606.
Parties’ submissions
3. As far as the Agreement is concerned, there seems to be six stages of payments and each stage is linked to a particular type of work being completed. The Claimant received payments for stages 1 – 4 throughout the project, and then stage 5 when the project was accepted to be completed. The sixth stage and final payment would have been due after the snagging phase.
4. Following the completion date of stage 5 of the project, the Defendant is granted a graced period of seven days allowing her to provide a list of items which are defective and require rectification, pursuant to clause 2.4 of the Agreement. As such, the Defendant prepared a list of items prior to the compilation stage and she appointed an independent engineering company to provide a full report on the condition of the villa after the renovation work had been carried out by the Claimant. Therefore, both snagging lists from the Defendant and her independent engineering company were finalised and circulated to the Claimant within the notification period.
5. The Claimant alleged that pursuant to the terms of the Agreement, in particular clause 28, a snagging list is to be mutually agreed between the client and the contractor prior to commencing any snagging works, and the list is to exclude any damages caused by the client or by third parties employed by the client.
6. After settling the stage 5 payment, both parties arranged for a site meeting to review the two lists and combine it into one document as some items had already been tended to by the Claimant and would have been duplicated work or works that should have been carried out by the Defendant’s third parties’ contractors. Following the site meeting, on 27 of April 2023, the Claimant provided the Defendant with a snagging list by way of an email, in accordance with clause 6.1 of the Agreement.
7. As far as the Claimant is concerned, the Defendant’s snagging list contained numerous items related to painting, painting touch up and cleaning, however the main issues that needed to be tended related to the hollow tiles, affecting at least 38 tiles at the time, waterproofing, windows and the main door fitting.
8. There have been various emails and WhatsApp exchanges between parties with respect to an agreed snagging list or the type of work which should have been carried out by the contractor. During the second week of May 2023, the contractor commenced working on the snagging list.
9. During the snagging period, the parties got into disagreement about the snagging list, and the Claimant’s case is that the Defendant kept adding more items to the snagging list after the 7 days snag listing period. The Claimant submits that the Defendant refused to agree on a single list according to a contractual requirement.
10. The issues giving rise to these proceedings pertains to the unsatisfactory works that had been completed and, in particular, the installation of the tiles, the painting job and cleaning following the completion of each stage. Following two weeks of work, the Claimant stopped working and did not tend to the outstanding items listed in the snagging list based on the fact that the Defendant failed to agree on single snagging list and stopped all communication. Furthermore, there was an allegation of defamation and workplace hostility.
11. The Claimant contends that despite all of their best efforts and perseverance with an exceptional volume of communications in order to reach an amicable conclusion with the client, the issue surrounding snagging has become a contractual dispute whereby the Defendant refused to honour the Agreement. As such, they are seeking a repayment for the sixth and final payment of the project amounting to AED 91,630.30, being the balance remaining for the project including their cost of filing the claim.
12. In reply, the Defendant submits that the Claimant was attempting to remove as many items from the snagging list as possible, forcing her to concede to the Claimant’s snagging list which does not represent the contractor’s defects and the poor quality of work and the finishing conducted throughout the project. As such, this led the Defendant to reject the Claimant’s claim in its entirety and file a counterclaim for various remedies related to (i) delays and (ii) poor workmanship and all of the out-of-pocket costs sustained by the Defendant attributable to both delay and poor workmanship to be dealt with below.
13. The Defendant case is that the sixth invoice has not yet been issued by the Claimant and nor can it be issued until they complete all of the snagging works in the agreed snagging list. The Claimant must finish all of the snagging work in the agreed list before they can issue the final invoice for payment in accordance with Clause 26 of the Agreement which states that the stage 6 payment is due upon completion of snagging.
14. According to the Defendant, it was argued that the Claimant ceased all snagging works despite the Claimant’s team being provided access to the premises to complete the necessary works. The Defendant submits that the Claimant is therefore in breach of the terms of the Agreement as they are not continuing on with the snagging work to completion. Until the Claimant finishes the snagging work, they cannot issue the final invoice.
15. In regard to snagging list issue, the Defendant’s case is that following a long and a complex discussion, the Claimant proceeded to remove a number of items from the snagging list submitting that those items had already been completed or in fact they fell outside the agreed scope of work. However, the Defendant considered that the proposed snagging list prepared by the Claimant did not include all the work the Defendant sought for the Claimant to complete. The Claimant even removed items listed in the engineering snagging report without any explanation or reasoning. The result of this was that the Defendant was dissatisfied with the proposed snagging list produced by the Claimant. Therefore, the Claimant’s version of the snagging list would not deliver their aim (a properly finished villa) and would have left significant defects in the villa, as well as further warranty issues.
16. The Defendant pointed out one serious defect, including but not limited to, the installation of the tiles for the ground floor of the villa. In support of her submissions, the Defendant relied on a tile retailer, namely Mabon, a contractor, namely Mac and two other snag engineers from Mabel, which unanimously all agreed that the tiles had been laid incorrectly and ought to have been removed and replaced entirely with a subsurface that was properly bonded to both the tile and the concrete slab. The Defendant further submitted a supplemental report from a snag property to reflect the same result.
17. The Defendant argued that despite the contractual requirement to agree on a single snagging list, the issue of snagging between both parties could not be resolved at the time for three reasons:
(a) There is NO clause in the Agreement which states that the client must accept the contractor’s version of the snagging list or else no snagging work will be done.
(b) There is also NO clause in the Agreement that states what the procedure is for negotiating the snagging list where the client and contractor cannot agree on a mutually agreed snagging list.
(c) There is NO clause in the Agreement that states that if the parties cannot agree on a mutually agreed snagging list, the contractor can simply issue the sixth invoice without doing any snagging works.
18. The Defendant contends that she tried to negotiate a proper mutually agreed snagging list or termination to the contract, however she was left with no choice other than to respond to the Claimant’s email conceding to its proposed snagging list “under duress” because if the Defendant had failed to agree to the Claimant’s list, it would have resulted in the Claimant issuing its final invoice without doing any snagging work at all. The Claimant accepted her concession to the snagging list and commenced the snagging works.
19. The Defendant further argued that for the first two weeks of snagging, it was clear to her that that the employees had been firmly told to only do the bare minimum. She added:“For example, instead of painting the entire ceiling in one bedroom where the rain had caused water damage, they simply painted the one small patch, leaving it with a distinctly patchy appearance. Pursuant to clause 28 of the agreement, we had to advise within 48 hours of completion of any snagging work whether the result was satisfactory or not. Each message I sent to the claimant advising of such was met with silence.”
20. The Defendant argues that on the 22 May 2023 she received an email from the Claimant offering to reduce the final invoice by approximately AED 31,500 being the cost of 35 tiles, however given the unsatisfactory and poor installation, she was required to install 100 tiles and pay for their installation to rectify the entire ground floor. Eventually, the Defendant declined the Claimant’s offer of 35 tiles, as the cost for fixing such a defect would cost her a substantial amount, instead, the Defendant granted access to the Claimant in writing to continue snagging and to commence snagging works on the tiles. No tiling employee from the Claimant turned up despite the Claimant’s email commitment to do so.
21. The Claimant ceased performing all snagging works and therefore is in breach of the terms of the Agreement and is not entitled to payment of the final invoice.
Discussions and analysis
22. Based on the above summarised arguments and counter arguments, it is evident that the snagging work has not been completed by the Claimant, despite having started the snagging work by the 8 of May, he did not finish what he started. It is evident too that the Claimant has failed to address the concern with the tiles as there was huge disagreement between parties as to whether the contractor has made good the other items within the snagging list, such as painting and cleaning.
23. As we have seen above, the Claimant’s case is that it was unable to complete the snagging work based on three grounds, namely, (i) the Defendant was not in the position to agree to a single snagging list and kept adding items to the list after the contractual period and even during the snagging time, (ii) secondly, the Claimant found the workplace and being on the Defendant’s premises became a hostile environment for him and his employees when the team did not tend to their additional and invalid requests and (iii) finally the Defendant was not forthcoming with them and denied access to her premises.
24. As to the tiles snagging, the Defendant and her appointed engineers kept the Claimant informed that the hollow tiles must be fixed. In my view, there was agreement between the parties that the Claimant must deal with this issue despite their challenges faced on the issue pertaining to the method of rectifying this defect and the number of tiles that needed to be rectified.
25. The Claimant started snagging and did not rectify the defectives tiles, however the Claimant offered to pay for the 35 tiles which it accepted as defectives pieces by reducing the final bill the sum of AED 31,500 however the Defendant refused the offer and demanded the cost of 100 pieces instead. It is certainly the Claimant’s duty and responsibility to deliver the villa free of any defect and in accordance with the standard expected by the Client. Thereby, the Court’s role is to determine whether the Defendant was reasonable in requesting the Claimant to fix or pay for more than 35 pieces of tiles. One must look at the evidence while dealing with the tiles issue below.
26. The evidence relied on by the Defendant is the report produced by Mabel of 16 March 2023 which was set out based on the Defendant’s instruction and their inspection of the site. It was concluded that the tiles were hollow and un-level (slope issue) and all tiles must be replaced. The report marked 70 tiles with pictures as hollow and not less than 4 area in the house are un-level, however it did not state the amount of pieces which it required to rectify the issue.
27. The second evidence relied on by the Defendant is an email from Mabon of 18 April 2023 stating that:“Following the samples obtained from the site and looking at the photos, there is no issues with the tiles we supplied. We have managed and supplied the tiles within the same batches and calibres prior order confirmation. The adhesives at the back of the tiles from the site is not sufficient as per normal procedures and standard. The substrate must be intact (no cracks), stable (cured, not subject to shrinkage), resistant to expected loads, dry and perfectly flat. The substrate must be stable and completely cured.”The third evidence used by the Defendant in support of her case is an observation report prepared by Mabel on 6 June 2023.
28. The observation took place right after the event that the contractor stopped the snagging work, and reported as follows:
“• Purpose:
The floor tiles installed by the contractor in the ground floor of the villa showed signs of poor workmanship. Various tiles sounded hollow when tested/inspected which indicated that they were not installed properly.
Through time, more floor tiles started to show the same defects aſter further tests and inspections. It was clear that the floor tiles were not properly bonded to the subsurface beneath it which is causing the separation between the tiles and the subsurface, resulting in the hollow sound when inspected. It was necessary to remove one of the floor tiles and further inspect the subsurface and installation quality.
• Findings:
The floor tile was removed with ease. The tile was not bonded on the subsurface as it should, minimal amount of adhesive was still attached to it. The subsurface itself had some cracks. The subsurface broke very easily when a rubber hammer was used against it, the layer found very dry. The subsurface was completely unattached to the concrete slab beneath it.
Please refer to the photos in Addendum A.
Some floor tiles noticed to have a different shade of colour comparing them to other ones around. Refer to Addendum B photos.
• Conclusion:
The floor tiles were not installed properly as per the Engineering Standards and the Manufacturer’s Recommendations. The subsurface beneath the floor tile is not the right mixture, it was very dry and broke very easily. The subsurface was not bonded to either the floor tile or the concrete slab beneath it.”
29. Turning to the fourth evidence, namely the Performa Invoice from Mabon of 6 July 2023 as confirmation that for the 489.84M2 TIMELINE 120X260 CM GREY MATT Tiles price AED 137,401.99.
30. As far as the Claimant is concerned, they have submitted evidence of alternative methods for installation of tiles and the Court takes the view that this not the point of this case as to whether there are various methods or otherwise. The issue is why there were hollow tiles. The Claimant has not submitted any evidence to support the fact that what he is proposing is the right technical solution against the evidence submitted by the Defendant that tiles must be replaced.
31. I have not been provided with any evidence from the Claimant setting out the rationale of only replacing 35 tiles as opposed to rectifying the defective works that had been carried out on the ground floor of the villa. Instead, there are various debates without reaching an amicable solution.
32. The Claimant refers to the email of 27 April that contains what is supposed to be the combined list of snags, however the list does not specify how many tile pieces or M2 must be dealt with. The email sent by the Claimant is the only document specifying the number of tiles to be 38. These emails sent from the Claimant to the Defendant were faced with rejection all the time, having said that, there is nothing to say that the Defendant was trying to add more tiles as a number to be attended.
33. I will turn to the next issue pertaining to the Claimant’s allegation that the workplace and the Defendant became hostile for his employees when the team did not tend to their additional invalid requests. There has been no evidence presented to this Court to support such allegation. No single employee has given evidence to support such incident, therefore, such an allegation must be rejected.
34. As to the allegation that the Defendant stopped communicating with them and denied access to site so they could not finish the rest of snagging, I note that the email of 26 May 2023 from the Defendant to the Claimant, states as follows:
“1. We notified you by email that we conceded to your snag list, prior to the team commencing the snagging works. Hereby confirming this again.
2. Access - we have provided full access other than Saturdays when we have nobody available at the house to allow access. We are happy for the team to come as scheduled to complete their works and appreciate notice, beforehand, to ensure that furniture is moved as required. Macon has already told Mada that we are of course happy to add on additional days for the Saturdays where we have been unable to provide access.
3. Neither Macon or I have ever once stated that we would not pay the final invoice which becomes payable upon completion of the snagging works. Not once.”
35. I have reviewed the Claimant’s evidence in form of emails and WhatsApp messages and there is no suggestion that the Defendant denied them access to the main site to complete their project. Therefore, based on the evidence, I am satisfied to conclude that the Defendant may have requested the Claimant and his team not attend the premises at a time when they were not inside the premises. Although, this only occurred twice and the Defendant assured to the Claimant that she will compensate these two days for them.
36. Nothing in the Claimant’s evidence suggests that the Defendant denied his employees access to the premises to complete the outstanding items from the snagging list and to rectify the other issues pointed out by the Defendant. In absences of such evidence, I prefer the Defendant’s evidence over the Claimant’s unsubstantiated allegations.
37. Lastly, I shall deal with the question of whether the Defendant breached the contract by not agreeing on a mutual snagging list. This part of the discussion and analysis will not include the issues related to the tiles as I have covered that matter above, however I will now deal with the remaining items.
38. One of the important issues related to waterproofing; this issue was the subject of the Defendant’s snagging list at all material times and this was received by the Claimant from the Defendant. I note that the supplementary report issued by Snag Property of 12 June 2023, concluded that:
“For the roof extension, it is clear during the rain that the waterproofing has failed which has resulted in some water damage inside the villa. The contractor has carried out a repair on it, but we find the method of repair unacceptable as the waterproofing membrane has not been tied up to the main waterproofing and it has been left under the sun unprotected. The only way to repair it is to expose the main waterproofing of the roof again and repair the waterproofing membrane with proper overlap by a certified waterproofing company. It is also recommended to remove some sections of the roof tiles so the waterproofing along the roof can be extended and wrapped around the new shaft which was built near the edge of the roof. Once repaired, the roof needs to be flood tested and prior to the application of the insulation and covering materials such as the screed, gravel bedding, pavers or other materials that the roofing design has specified”.
39. Furthermore, the Claimant in its email to the Defendant of 27 April 2023 has confirmed that it will“add waterproofing tape along the termination of existing waterproofing for peace of mind”.That having been said, nothing in the Claimant’s evidence demonstrates the fact that they have dealt with the Defendant’s concern during the snagging period or at any other time.
40. The remaining issues related to the snagging work involving either painting certain areas of the house or cleaning. Many of these items required very minimal work while others vary between touch up and painting full walls for instance.
41. In the Claimant’s account, most of these issues have either been attended to, related to third parties’ mistakes and damages, which certainly are no longer the Claimant’s responsibility, and as such cannot be attended to another time. Unfortunately, the Claimant failed to provide the Court with any evidence that there is no evidence of a previous snagging list substantiating the work that has been completed by him and his team, and the new items that are arising as a result of third-party contractors appointed by the Defendant. The Claimant recognised and had full knowledge of the Defendant’s intended and expected standards of work.
42. It is in my judgment that the Defendant has acted reasonably in preparing the snagging list ahead of time and had rightfully appointed an expert to assist in producing such a list to the Claimant.
43. It is in my judgment too that the Defendant has acted reasonably in demanding the Claimant to finish the work according to the standard she has paid for. The conceded snagging list submitted to the Claimant of 27 April must be taken as a last resort and it should have led the Claimant to complete the outstanding items set out in the snagging list. It is expected, in my opinion, that the Defendant is seeking to have the work attended according to the standard expected and paid for.
44. That being said, I find that the Defendant has agreed to a snagging list and provided by the Claimant with reasonable access to her premises to finalise the project and he failed to attend with no justifiable reasons or grounds. Therefore, and as a result of Claimant’s failure to attend to the snagging list, there is a contractual failure to carry out adequate and proper materials with reasonable skill and care to the reasonable satisfaction of the contract, preventing the Claimant from issuing the final invoice. Accordingly, the Claimant’s claim in seeking payment of the final invoice must be dismissed, and I shall deal with the counterclaim in next part of this judgment.
The Counterclaim
45. The Defendant filed a counterclaim based on the notion that“We have not received what we have paid for”.The Defendant submits that there are a number of serious defects caused by poor workmanship and lack of quality control or supervision of unqualified subcontractors engaged by the Claimant and for whose actions the Claimant is liable under the Agreement. These quality and workmanship issues are certainly a contractual breach sustained by the Defendant to rectify the poor quality of work carried out by the Claimant and such rectification would be in excess of the final invoice that was expected to be issued by the Claimant.
46. The Defendant seeks to claim for the cost of the tiles that needed to be replaced, the cost for removing the defected tiles, the installation of the new ones and the cost associated with work on the ground floor. The Defendant is seeking damages for the cost of fixing the house roof waterproofing, the delay caused by the Claimant, painting parts of the house and professional costs associated with this claim, including engineering inspection fees and legal fees.
47. I shall address each claim in turn.
Tiles
48. I have addressed the tiles issues when dealing with the contractual duties of the Claimant and I shall not repeat all the argument surrounding this item. As I have found that the Claimant is liable for the defective tiles. In this part of the judgment, I shall deal with damages being sought by the Defendant as a result of the Claimant’s breach.
49. The Defendant submits that all tiles on the ground floor of the villa were laid incorrectly according to the supplier and various expert opinions. The tiles purchased by the Defendant were completely destroyed on the ground floor costing her AED 137,677 being 70% of the total floor tiles bought for the entire house. The Defendant added that according to the tile layout plan (as shown in attachment 18) approximately at least 102 tiles were required depending upon how they are cut, plus the extra tiles for skirting and the added 15% is accepted for wastage.
50. The Defendant is also seeking the cost of labour to take up old tiles, remove the sand and lay the concrete properly for the laying of the new tiles which would have amounted to approximately AED 233,930 pursuant to a quotation obtained from Mac. The Defendant submitted a second quote for this work from an alternate tiler, namely the Madge which provided a quote for a sum of AED 198,943.
51. Finally, under this item, the Defendant is seeking the cost of the work which would have been necessary for placing their furniture into storage, the estimate for this is based on previous storage fees with, The Box, with the cost being AED 8,190 for 2 months, in addition to the removal costs to move furniture to and from storage being approximately AED 6,000 based on her previous moving costs paid.
52. The Claimant rejects the Defendant’s counterclaim regarding the tiles based in the notion that they have accepted to rectify all the tiles the Defendant marked on their submission, however the Defendant retracted this and no longer wished to adhere to the list she submitted as she is now seeking to have the full ground floor tiles replaced before she providing them with an opportunity to carry out any rectification works.
53. The Claimant argues that the Defendant has submitted a counterclaim for the full tile replacement which contradicts the original report they submitted as part of their snagging list. The list submitted by the Defendant demonstrates that the complete installation was not compromised so their claim contradicts their own report and snagging submission. The Claimant then argues that the independent snagging report from an engineer appointed by the Defendant has highlighted 55 spots covering 38 tiles only.
54. The Claimant further argues that the Defendant has provided a quotation from a contractor that is one of the Claimant’s main competitors in the market and as such would lead them to earn an income from replacing all of the tiles and therefore cannot be deemed to be independent or impartial.
55. As I have referred to previously while dealing with the snagging issues, the report delivered by Mabel dated 16 March 2023 concluded that all hollow and un-level (slope issue) tiles are to be replaced. The report marked 70 tiles with pictures as hollow and not less than 4 area in house are un-level but the report failed to address how many pieces it required.
56. The report was and remained before the Claimant at all material times. The Claimant never challenged this report by any means. The Claimant kept referring to the number of tiles being 38 without any basis. With a report marking 70 defected tiles and 4 area unlevelled, I am prepared to accept the Defendant’s evidence that the number of tiles required to rectify the Claimant’s failure and breach are 102 tiles. The ground floor plan supports the fact that the number of tiles is 100 pieces too.
57. With regards to the value of the tiles, the Defendant is seeking an amount of AED 137,677, for 102 pieces of the size 120 X 260 make 312 M2. In the proforma invoice from Mabon, the M2 has provided a quote of AED 137,677 for 490 M2 with M2 being 267.15. If one is to apply the unit price to the 102 piece tiles, the total amount becomes AED 83,350.80. The total price including VAT 5% represents AED 87,518.34.
58. With respect to the cost of labour pertaining to the removal of the old tiles, sanding and laying proper concrete and laying the new tiles, the Defendant submitted two different quotations and I shall accept the lowest in price that was provided by the Agency company, in the amount of AED 198,943.50, including VAT. However, the quotation price is for 428 M2, as I have satisfied that the ground floor required fixing (102 pieces of tiles) representing 312 M2, I shall prorate the agency quotation price to 312 M2 and the fixing price would be AED 145,024.23.
59. I do not accept the Claimant’s argument that the quotation submitted by a competitor is inadmissible. In my view, every contactor working in the same field and permitted to do work in the Arabian Ranches became a competitor to the Claimant and it is a neutral competition, and the Defendant was entitled to work with any of them.
60. Turning to the costs claimed by the Defendant for storing her furniture into storage facility. She alleges that the cost would amount to AED 8,190 for two months, in addition to the removal costs to move furniture to and from storage, which is estimated to be AED 6,000 based on the Defendant’s previous moving costs, The Claimant raised no defence or challenge to this item, therefore the Defendant is entitled such claim.
61. The total amount awarded for the Defendant under this part of the judgment under with regards to the tiles, is in the sum of AED 246,732.57.
Other Damages
62. As for the following items claimed by the Defendant in her counterclaim.
(a) Three additional spare tiles in the sum of AED 2,700.
(b) The Claimant’s promise to tile her laundry backsplash during snagging which he then refused to complete. Total cost: AED 2,500.
(c) Roof extensions – not waterproofed correctly, approximately AED 20,000.
(d) Internal walls – paint approximately AED 25,000.
(e) Minor snagging items that were not attended to still need to be done, such as door/window paint touch ups, door seals, door softeners.
(f) Professional costs associated with this claim, including engineering inspection fees and legal fees.
63. In my view, the decision to waive the Claimant’s sixth payment is proportionate compensation for the Defendant to rectify the damages claimed above and I shall not award her any further payment in this regard.
Delay
64. I will now deal with the remaining damage claims related to the delay caused by the Claimant delivering the project outside the contractually agreed time.
65. In this part of the Defendant’s counterclaim, the Defendant takes the view that the renovation of the villa was originally due to be completed within 90 days from the start date of the renovation. Instead, this was extended to 156 days due to agreed variations. It appears that variation item 14 was the last variation on the completion list. Variations 15-30 simply stated no completion date. However, pursuant to clause 9 of the Agreement, there is a method of calculating the additional time for completion in the event there is no date that has been provided by the Claimant.
66. Based on an agreed method which sets out that any further variations will accrue an additional 6.5% between variation 14 up to variation 30, meaning that the completion time should have only been extended by an extra 10 days (6.5% of 156 days). Using this formula, the premises should have been completed by no later than 10 August 2022. Instead, the Defendant was only able to move into the villa on 3 December 2022 and even then, it was not completed until 31 March 2023.
67. Based on these facts the Defendant claims the following remedies as a result of the Claimant’s delay in completion the project:
(a) Additional rental accommodation costs paid from 11 August 2022 to 3 December 2022 in the sum of AED 95,420.
(b) Vacating the property for 10 days to leave the villa empty for the cabinet makers to be able to finish the kitchen prior to Christmas. The Defendant incurred hotel accommodation for 10 days for her family to the sum of AED 19,000.
(c) The combined storage fees for the Defendant’s furniture sum of AED 13,907.75.
(d) Additional moving costs incurred due to delay in the amount of AED 6,300.
(e) Additional sum of AED 50,000 in damages for stress and the inconvenience caused by the contractor’s delay.
68. The Claimant rejects the Defendant’s delay claim in its entirety and in support of its submission, the Claimant relies on the wording of clause 21 of the Agreement which explains that the Claimant should have started the renovation works within 7 days of receipt of all relevant approvals from the developer and/or other regulatory authorities. There was no agreed start date which was incorporated in the Agreement as the commencement date relied on the approval dates. In the Claimant’s accounts, Madhuri NOC related to the general internal scope of work was received on 19 January 2022. However, the Magali NOC required for the main structural scope was only received on 12 April 2022. Pursuant to clause 21, the commencement date should have been 7 days after 12 April 2022, namely, 19 April 2022 in accordance with the Agreement.
69. The Claimant argues although they were able to commence work for some of the minor works covered under the Madhuri NOC such as removing bathrooms and the kitchen, the work rate was hampered as they could not start the main scope until they had the approval for the construction from the Magali, namely the regulatory authority. Clause 21 reads:
“The Contractor shall start the Works on _______________________ or within 7 days of receipt of all relevant approvals from the developer and/or other regulatory authorities (“the Commencement Date”) and complete the Works within 92 working days from the Commencement Date”.
70. In review of the building modifications permit number XXXXXXXX related to plot number XXXXXXX with issue date 12 April 2022, I note that the regulatory authority has approved the modification requested by the Defendant in the given date.
71. Although the parties entered into the Agreement on 4 December 2021, I am satisfied to conclude that the Claimant had the benefit of clause 21 despite having started earlier with minor internal work. Therefore, I agree with the Claimant’s submission that the commencement date of the project ought to have started on 19 April 2022, as such the progress and the delay must be counted based on this fact.
72. Apart from their initial disagreement with respect to the commencement date, the parties somehow agreed any delay or justified delay must be counted within the time frame April 19 to 31 March 2023 as the time of completion after the Defendant moved into the house in November 2022 represents 346 calendar days. 50 of these days were Sundays (non-working) and 12 days were public holidays, leaving 284 working days in accordance with clause 21 of the agreement which states“and complete the Works within 92 working days from the Commencement Date. Public holidays, Fridays and any days the Community Management do not permit the Contractor access are classed as non-working days.”
73. The Claimant relied on various factors which allegedly impacted the project completion date and requested the Court to consider when determining the Defendant’s claim for delays. I shall address them in turn as below.
Variations
74. The first factor which allegedly extended the project completion date is that according to clause 9 of the Agreement, any variations outside of the scope of work in the project will undoubtedly increase the date of completion, pursuant to clause 20. Where there is no individual time per variation calculation is possible / viable to calculate, it is agreed that the time for completion will be adjusted prorate to the price increase. For clarity and example, 10% increase in the contract sum shall equate to a 10% extension in time for completion. The original contract price was AED 1,374,623.25, and the latest price was AED 1,745,339 in accordance with variation list 27 which represents a 27% increase in scope. So, an additional 25 working days are to be added to the initial 92 days. Therefore, clause 9 reads:
“Any variations that increase the scope shall increase the time for completion as defined in Clause 20. Where no individual time per variation calculation is possible / viable to calculate it is agreed that the time for completion be adjusted prorate to the price increase. For clarity and example, a 10% increase in the contract sum shall equate to a 10% extension in time for completion.”
75. In the lack of any counter evidence from the Defendant, the project must be extended by 25 working days in accordance with clause 9 of the contract.
Delayed payments
76. The second factor is directly related to the terms of payment. The Claimant argues that all payments are due within 2 working days from sending / receipt of an invoice requesting the stage payment / variation. Should the payment be delayed, the time for completion shall be extended by one working day for each day of delayed payment and the works will be stopped and will only continue / recommence after the stage payment for the completed stage is received. The Claimant refers to four payments that were paid beyond 2 days and delays totalling 68 additional working days:
(a) The payment for Invoice 1709 was delayed by 33 days.
(b) The payment for Invoice 1716 was delayed by 8 days.
(c) The payment for Invoice 1773 was delayed by 1 day.
(d) The payment for Invoice 1792 was delayed by 1 day.
(e) The payment for Invoice 1832 was delayed by 25 days.
77. The relevant clause 24 of the Agreement reads as follows;“The Project is directly related to the terms of payment. All payments are due within 2 working days from sending / receipt of an Invoice requesting the Stage payment / Variation. Should the payment be delayed, the time for completion shall be extended by one working day for each day of delayed payment and the works will be in a stop and will only continue / recommence after the stage payment for the completed stage is received.”The evidence as in the statement of account showed that invoices 1709 dated 22 January 2022 and 1716 dated 16 February 2022, both fall outside of the start date of the project, therefore it must not be considered as a delay which extended or delayed the completion date of the project.
78. The same evidence proves that invoice 1773 dated 7 June 2022 was delayed by one day, invoice 1792 dated 22 September 2022was delayed for one day and invoice 1832 dated 7 November 2022 was delayed for 25 days. The total number of days to be added to the project from this factor must be 27 days.
Ramadan Timing
79. The third factor which the Claimant relied on was the fact that during the renovation works, the project time fell within Ramadan which effectively meant shorter working hours. The Claimant argues that during the holy month of Ramadan working hours are reduced and it ought to have been compliant with the government regulations which subsequently meant the Claimant was not able to carry out work of a normal working day of 8 hours. The current law provides that people working 6 days per week are to have their working week reduced from 48 hours to 36 hours. This means that the working days become shorter and they lost 14 working days during Ramadan over the project.
80. In support of the Claimant’s submission, the Claimant relies on clause 21 of the Agreement;“During the holy month of Ramadan working hours are reduced in accordance with government regulations and the time for completion adjusted prorate to the working hours lost from the normal working day of 8 hours per day”.
81. I am satisfied to conclude that the Claimant is entitled to rely on that clause, having said that, I disagree with its calculation of the number of days which it lost as a result. As rightly said by the Claimant there will be 2 hours deduction from every single working day which means that there will be shortage of 48 hours during the whole month which represents only 6 days shortage from the holy month of Ramadan.
82. In the Claimant’s calculation, it multiplied2 hours reductiondaily into the number of workers then to the days and weeks which I find to be completely without merit and baseless. The 2 hours must be reduced from the number of the working days. Therefore, the Claimant is entitled to add an additional six days to the total completion date of the project.
Summer working hours
83. The fourth factor for extending to project timeline in the Claimant’s account is that the adjustment for lost working hours occurred due to the summer midday break enforced by the government. The Claimant submits that based on the current law, it cannot carry out any external work and this would have been imposed from 15 June to 15 September between effective from 12:30pm to 15:00pm, considering this project involved constructing extensions, the delays caused to the external works were an additional 25 working days. The Claimant relies on clause 21 to support its submissions.
“Any external works carried out in the summer period may be limited by government restrictions requiring a midday break and the time for completion adjusted prorate to the working hours lost from the normal working day of 8 hours per day should this be enforced.”
84. I accept the fact that the Claimant is entitled to rely on the wording of this clause. I also accept the evidence that there was various external work which needed to be completed as part of the whole project. However, the external work represents only a minor part of the entire project which the Claimant was contracted to carry out and attend to whilst simultaneously carrying out the internal works.
85. As such, the additional 25 days claimed by the Claimant represents almost a third of summertime for the duration of the project which does not show any proportionality nor reasonableness. In the absence of any evidence that the Claimant was working only externally during summertime, I reject the Claimant’s claim that the law imposed by the government had impacted the completion date of the project.
Milestone Inspections
86. The fifth factor for extending the project timeline is the authorities’ milestone inspections. The Claimant argues that these inspections need to be booked, then the inspector attends within a week, and a few days later sends confirmation that the work can continue. There were 23 working days lost due to inspections. The Claimant submitted examples of the inspections behind attachments 23.5 & 23.6 of his evidence.
87. Clause 21 of the contracts covers Milestone inspections and reads as follows:
“Should the scope of works require relevant authority milestone site-inspections prior to the contractor being permitted to proceed to the next stage the time for completion shall be adjusted accordingly.”
88. I have examined the evidence referred to by the Claimant described as Structural Inspection. The first one is dated 16 June 2022 and the second 27 June 2022. Both documents are without notes or comments to the contractor and did not require the contractor to do or not to do any kind of action or activity, therefore the contactor failed to establish the fact that the inspections led to delay of 23 days and so this factor for extending the project timeline is rejected.
Third Parties contractors
89. The Claimant’s sixth factor is that the Defendant’s third-party contractor caused delays. The Claimant’s case is that he faced numerous delays from the Defendant based on the hired contractors, being the plumbers, the contracts that were hired to fit the windows, etc. The Claimant relied on one incident which is shown in the attachment 23.7 arguing that the interior designer made daily changes to the designs whilst the Claimant’s scope of works was on-going and needed to attend to 27 variation lists and each of these changes took time to discuss and prepare. The Claimant further submitted that they had to wait for the approval of each list or discuss the changes and prices and resend the list pending a confirmation from the Defendant. Each time the work on-site relating to the items being discussed were put on hold to ensure the team were working on the correct and latest scope.
90. The adjustment made for these delays amounted to47 working daysin his account. In the closing submission, the Claimant referred to more evidence behind attachment 25.4, 26.7, 26.8 and 26.9.
91. The contractor refers to Clause 25 of the Agreement to demonstrate the entitlement of such claim;“The Client agrees that any third-party contractors that are directly employed by the Client are to work around to Contractor's schedule and project planning to avoid delay. Should any third-party contractor interfere with the Works or be deemed to have caused a delay to the Contractor, the time for completion shall be adjusted accordingly. The Contractor reserves the right to charge the Client for manpower costs incurred for such delays.”
92. The Defendant submits that this cannot be claimed as a genuine delay to the completion date refuting the Claimant’s submissions and contends that there had been no form of communication made to the Claimant which may have suggested that the Claimant was not able to carry the agreed work on the premises. On the contrary, it was the third-party contractors (plumbing, electrical, cabinetry and AC) who complained to her that they were being held up by the fact that the Claimant was so far behind schedule.
93. This part of the claim I have dealt with earlier in my judgment and found that the variation extended the timeline, as such variations cannot be counted twice. Furthermore, in the Claimant is expected to work along with other subcontractors, and the appointment of third-party contractor by the Defendant must not trigger any type of delay. The Claimant, being a professional contractor, ought to have been objective and demonstrated that the third-party contractors had in fact impacted the completion date of the project.
94. Moving to the evidence put forth by the Claimant, being a conversation between the parties with a picture of a wooden cabinet unit installed next to a wall, the Defendant asked the Claimant when the skirting will be fixed, and the contractor said after. It carries no complaint at all.
95. I move on to attachment 25.4 which is another conversation where the Defendant asks the contractor “is the ducting holding things up?”, he answers “I think I saw ducting guys there 2 weeks ago, I’d have thought they’d be moving in things by now.” Again, in this conversation the contractor seems to be relaxed about the business speed.
96. Further, attachment 26.7 is a message from the Claimant informing the Defendant that he “still can’t do spotlight cutouts of final painting on the ceiling as countertop aren’t there yet”. This statement in my view carries a gentle complaint about kitchen work delay. Also, attachment 26.8 dated 24 of February 2023 shall not count for delay as it refers to a time after the Defendant moved into the house. Attachment 26.9 is conversation between parties with a picture for backed furniture or other items where the contractor asked gently to be removed in order for his team to finish their work.
97. In my assessment of the Claimant’s entitlement under this part of claim and the evidence provided, although the evidence has demonstrated some kind of negative interruption between the AC, kitchen and cabinets, which might cause delay, it is far from reality and reasonableness that the Claimant can be granted47 working days’delay or adjustment to its completion date. On the other hand, the Defendant’s conduct has proven that she was careful about the delay, and she has been responsive to the Claimant’s communication related to the project and time management, therefore I shall award the Claimant 15 days as an adjustment to the completion of the project.
Access restrictions
98. The Claimant’s seventh factor for extending the completion date of the project was related to the list of works that was specified to be carried out by the Defendant in which was limited to the Claimant’s ability to carry out their agreed scope of work. The Claimant said that there had been various access restrictions anditem 23.8is proof to that effect. The delay which the Claimant added was an additional 58 working days.
99. I rely on clause 22 which was incorporated to deal with the access restrictions to the premises setting out the eventuality the“…Client […] allow the Contractor access to the working areas, materials and tools to enable the Contractor to complete the Works in a logical sequence and on time. Should the Client restrict access for the Contractor to carry out the Works or request that the Contractor works in an alternative sequence, the time for completion shall be adjusted according to the delay factor calculation that the Contractor determines. The Contractor reserves the right to charge the Client for manpower costs incurred for such delays.”
100. The Defendant admitted that she has restricted access between 11 December to 21 December 2022, meaning 10 working days of delay, extending the completion of the project. The Claimant established in its evidence that the Defendant restricted work in the premises from 22 Dec 2022 until her children were able to go back to school, being on 4 January 2023, I rely on attachment 24.1 which represents12 working days delay.The Claimant further established that the Defendant restricted access one Saturday as in attachment 24.3. The Court has not been provided by any further evidence which demonstrates that the Claimant was restricted access for a period of 58 working days. Therefore, in the absence of any evidence, the number of working days which the Court will grant to the Claimant will be23 working daysadjusting the completion date.
Client occupying the premises
101. The Claimant’s eight factor being the delay and project timeline adjustment is that the Defendant had occupied the house five months prior to the completion date, specifically November 2022. The Claimant has calculated 53 working days as the delay factor. The Claimant refers to attachments 24.1, 24.2 & 24.3.
102. Messages were sent by the Defendant to the Claimant requesting the Claimant to complete the following:
“Well l'm not seeing that. I hope I see it tomorrow.
1st priority for tomorrow is finishing Muhit's downstairs bedroom. For BFO this means
plastering, sanding and painting the wall adjacent to his bathroom and swapping out his shower
flyscreen and fitting his wardrobe flyscreen.
Whilst your team are doing that, shutters will be fitted and Pinetree will install bathroom cabinet shelves.
His bed is prepared and all furniture will need to be covered with plastic sheeting and the room cleaned once all finished.
2nd priority is Great room wall so that we can set up a lounge room and Christmas tree.
3rd priority is Mehir’s bedroom wall - again, her furniture needs to be covered.
4th priority is upstairs hallway ceiling as this also needs sanding.
5th priority (can be done Thursday) is sanding blown out plaster in Mati’s room as he returns from camp on Friday.
Muhit arrives Friday morning and I need all dust cleared out by then.
Bathroom ceiling in guest room can wait. But will need to done behore guests arrive in January.”
103. As far as clause 21 of the Agreement is concerned, it clearly dealt with the event that if the Defendant“[…] decide[s] to occupy the villa prior to completion (for properties vacant at the time of commencement) or request for a different sequence of works from the planned sequence determined by the Contractor the time for completion will be adjusted as per a delay factor determined by the Contractor”.
104. Although the family moving into the villa which was subject to renovation should amount to disruption to the amount of work and time the Claimant could have carried out its work, however, in my view, it is difficult to understand how the Claimant calculated 53 days delay under this subclaim. It is further challenging to say to what extent the family’s occupancy could have attributed to the delay thereby extending the completion date of the project. In my assessment of the evidence provided and given the surrounding circumstances which the Claimant faced during the renovation, I will reduce the number of days to30 working daysto adjust the project timeline.
105. The total number of days I have found in favour of the Claimant under the eight factors which was introduced in responding to the Defendant’s counterclaim which allowed the Claimant to extend the project timeline equates to124 working days.
106. As I have stated above, the delay will be counted from the official commencement date which as I set out above was 19 April to the completion date of 31 March 2023, the time the Defendant moved into the house, representing 346 calendar days. 50 of these days were Sundays (non-working) and 12 days were public holidays,leaving 284 working days in accordancewith clause 21 of the Agreement.
107. The Claimant submitted evidence supporting the fact that the Defendant attributed to the project timeline delayby 124 daysto be added to the 92 working days of the contractual timeline. It appears from the established evidence and arguments that the Claimant has accomplished the house almost with160 working days of delayaccording to my calculation.
108. Therefore, under the Defendant’s delay claim, I find that the Claimant is in delay of the completion date of the project and as such the Defendant must be entitled to the remedy claimed under this part of the judgment, namely:
(a) Additional rental accommodation costs paid from 11 August 2022 to 3 December 2022in the sum of AED 95,420.
(b) The cost of hotel accommodation for 10 days for her family in the sum of AED 19,000.
(c) The combined storage fees for the Defendant’s furniture in the sum of AED 13,907.75.
(d) Additional moving costs incurred due to delay in the sum of AED 6,300.
(e) Additional sum of AED 50,000 in damages for stress and the inconvenience caused by the contractor’s delay.
109. The total sum awarded to the Claimant under this part of the counterclaim is AED 184.627.75.
110. The damages awarded to the Defendant in the previous paragraph is based on the fact that the Claimant has not challenged the details and the quantum of the remedies claimed under this part.