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You are here: BAILII >> Databases >> The Dubai International Financial Centre >> Nelson v Nicolyne [2024] DIFC SCT 111 (15 July 2024) URL: http://www.bailii.org/ae/cases/DIFC/2024/DSCT_111.html Cite as: [2024] DIFC SCT 111 |
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Nelson v Nicolyne [2024] DIFC SCT 111
July 15, 2024 SCT - JUDGMENTS AND ORDERS
Claim No: SCT 111/2024
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
In the name of His Highness Sheikh Mohammad Bin Rashid Al Maktoum, Ruler of Dubai
IN THE SMALL CLAIMS TRIBUNAL
BEFORE H.E. JUSTICE MAHA AL MHEIRIBETWEEN
NELSON
Claimant
and
NICOLYNE
Defendant
Hearing : 16 May 2024 Judgment : 15 July 2024 JUDGMENT OF H.E. JUSTICE MAHA AL MHEIRI
UPON the Claim Form being filed on 12 March 2024
AND UPON a Hearing being held before H.E. Justice Maha Al Mheiri on 16 May 2024, with the Claimant’s representatives and Defendant in attendance (the “Hearing”)
AND UPON reviewing the documents and evidence submitted in the Court file
IT IS HEREBY ORDERED THAT:
1. The Claimant’s claims are dismissed.
2. Each party shall bear their own Costs.
Issued by:
Delvin Sumo
SCT Judge and Assistant Registrar
Date of issue: 15 July 2024
At: 12pmTHE REASONS
Parties
1. The Claimant is Nelson (the “Claimant”), a property management company, licensed in Dubai, UAE.
2. The Defendant is Nicolyne (the “Defendant), owner of the property that is managed by the Claimant, located in, Dubai, UAE.
Background and Hearing
3. On 8 December 2021, the Defendant signed a contract (the “Agreement”) appointing the Claimant to carry out all services in relation to her property (the “Unit”).
4. The Claimant secured a lease agreement for the Defendant’s Unit in 2021 (the Lease Agreement”). In October 2022, The Defendant decided that she wished to occupy the Unit and notice of eviction was sent to the tenant by the Claimant.
5. On 18 September 2023, The Defendant changed her mind and wanted the Claimant to negotiate a new lease agreement with the tenant with an increased rent amount to AED 230,000. The parties communication was mainly by WhatsApp and zoom calls. In reply to the Defendant’s request, the Claimant communicated the following through WhatsApp:
“It is possible to lease the apartment within the range from 240 thous. to 260 thous. dirhams…”
6. On 4 October the Defendant messaged the Claimant in relation to the new terms of the tenancy agreement (the “New Tenancy Agreement”). In reply the Claimant indicated that the fee for this service would be in between 10 to 15 thousand dirhams, which the Defendant accepted.
Defendant Claimant Call me
Send the summary to my e-mail, pleaseConfirm first, and then we will send it all We are starting the process
Waiting for the proposal in written formLet me write it here, I have many meetings today Okay Our fee will be from 10,000 to 15,000 dirhams plus VAT 5%. We plan either to buy a letter and the tenant moves out or to agree on renewal at a new price What the new price will be, in your opinion I will specify it
Lets begin the negotiation process7. The Defendant flew from Russia to Dubai to try to finalize this matter. Meanwhile, there were a lot of messages back and forth in relation to the course of action taken to deal with the New Tenancy Agreement conditions and the tenant occupying the Unit.
8. On 7 November 2023, the Defendant was informed that the New Tenancy Agreement was signed. The Claimant did not confirm the new rent amount with the Defendant before signing the New Tenancy Agreement.
9. After which, the Claimant sent to the Defendant an invoice with the amount of AED 15,000 for the service. In reply the Defendant refused to pay the amount stating that the Claimant did not meet the requirement of the rent that was agreed and that she will only pay AED 10,000 for the service.
10. On 12 March 2024, the Claimant filed a case against the Defendant in the DIFC Courts Small Claims Tribunal (“SCT”) seeking from the payment of AED 15,000 for the service provided.
11. The Court scheduled a Consultation before SCT Judge Delvin Sumo on 7 March 2024, but the parties were unable to reach a settlement.
12. In line with the rules and procedures of the SCT, this matter was referred to me for determination, pursuant to a Hearing held on 6 May 2024 with the Claimant’s representatives and the Defendant in attendance.
Findings
13. The dispute is governed by the DIFC Law of Contract and the relevant case law and principles concerning a breach of contract. Pursuant to Clause 7 of the Agreement, as stated:
“7. GOVERNING LAW AND JURISDICTION:
The T&C is governed by and shall be construed in accordance with the laws of the Dubai International Financial Centre ("DIFC"). In the event of any disputes or differences arising out of or in connection with the T&C (including any question regarding its" existence, validity, execution or termination) and/or with the provisions therein, the Parties shall use their best endeavours to settle such disputes or differences amicably. If they do not reach such an amicable settlement within a period of 10 (ten) calendar days following the occurrence of such dispute or difference, then the matter shall be referred to the exclusive jurisdiction of the Dubai International Financial Centre ('DIFC"), specifically the Small Claims Tribunal for all claims below AED 500,000.00 (five hundred thousand dirhams), and the DIFC Courts shall have exclusive jurisdiction in relation to it.”
14. The Court does acknowledge that the parties were in negotiation in relation to a service that was linked to the Unit that the Claimant was already managing; this service was negotiated and agreed through WhatsApp conversation.
15. The rent amount increase between the parties was agreed to be in the range of AED 230,000 to AED 240,000. When reviewing the WhatsApp conversation, the Defendant did inquire about the rent amount negotiated to the tenant, but the Claimant did not respond.
16. In addition, the Claimant did not get approval of the negotiated rent amount from the Defendant before signing the new tenancy agreement. The Defendant only became aware of the new rent amount after the New Tenancy Agreement was signed. Moreover, the Claimant has failed to present any evidence to the Court to suggest that the Defendant agreed on the new rent price or that the Defendant was satisfied with the service.
17. The Defendant raised a few points through WhatsApp when the Claimant’s invoice was raised:
“I disagree to work that way and pay the issued invoice, because:
1. You didn't increase the price of the contract to the level that we discussed with you,
2. You didn't inform me when you negotiated the price 200 with the tenant, disposing of my property as your own.
3. We made up a supplementary agreement ourselves spending our own time, money and nerves. I specially flew to Dubai, as I didn't get any information from you, I had to bear the costs connected with air tickets, accommodation, and I had to leave urgent work at home.
4. I doubt the tenant's signature and I'll drive to him myself to get the signature with 2 witnesses.I refuse to pay money for the thigs(sic) that were not reached
- Obviously, you’ve mixed up who of us is a client and who is an agent
- In the land department they distinctly said that the signature must be original
- I stop trusting you at all”
18. Moreover, in review of the Agreement, the Court deems that the services delivered to the Defendant falls within the Claimant’s agreed services:
“In the event when the Property is leased to a tenant after signing the T&C, the BSO will supervise every Lease Agreement, and will perform the following duties:
- EJARI registrations and renewals of Lease Agreements with supervision of DEWA, cooling and gas connections of tenants;
- Supervision of a tenant move-in and move-out inspections with the Property's inventory checklist signing and coordination of necessary financial refunds and reimbursements in connection with Lease Agreement;
- Keeping the Landlord informed if tenant falls into rent arrears;
- Liaising with third party service providers and supervision on necessary repairs, defects and logistics related to the Property at the Landlord's costs and expenses;
- 1 (one) annual visit to the Property for visual condition checking with providing a report to the Landlord;
- Lease Agreement official notice registration in notary public at the Landlord's cost;
- Negotiation on extensions or renewals of Lease Agreement terms, including rent price increase terms allowed by RERA;
- Supervision of Lease Agreement early termination requests between Lease Agreement parties;
- Sending lease supervision performance statements on monthly basis.”
19. Within the Claimant’s services are “Negotiation on extensions or renewals of Lease Agreement terms, including rent price increase terms allowed by RERA;” and “early termination requests between Lease Agreement parties” which the Defendant is already paying an annual service fee to the Claimant of AED 4,800.
20. The Court is also of the view that the Claimant did not deliver the service that was discussed over WhatsApp as agreed; the essence of the service provided is the rent amount, which was never validly agreed as the Claimant only indicated a broad range. The Court finds the Claimant’s action by moving forward with the New Tenancy Agreement without prior approval of the rent by the Defendant is against what was agreed by the parties, which invalidates the service fee charged.
21. This is a very straightforward matter; the Claimant failed to deliver the services as agreed to the Claimant, therefore, the Claimant’s claims are dismissed.
22. Each party shall bear their own Costs.