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Napoleon v Norris [2024] DIFC SCT 167
July 08, 2024 SCT - JUDGMENTS AND ORDERS
Claim No: SCT 167/2024
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
BEFORE SCT JUDGE MAITHA ALSHEHHIBETWEEN
NAPOLEON
Claimant
and
NORRIS
Defendant
Hearing : 1 July 2024 Judgment : 8 July 2024 JUDGMENT OF SCT JUDGE MAITHA ALSHEHHI
UPON the claim having been filed on 30 April 2024 and amended on 30 May 2024 (the “Claim”)
AND UPON the Order with reasons of H.E Justice Nassir Al Nasser dated 30 May 2024 determining that the DIFC Courts have jurisdiction to hear and determine the Claim
AND UPON the Defendant’s defence dated 24 June 2024 (the “Defence”)
AND UPON the Claimant’s reply to the Defence dated 2 July 2024
AND UPON a hearing having been listed before SCT Judge Maitha AlShehhi on 1 July 2024 with the Claimant’s representative and the Defendant’s representative in attendance (the “Hearing”)
AND UPON reviewing the documents and evidence filed and recorded on the Court file
IT IS HEREBY ORDERED THAT:
1. The Defendant shall pay the Claimant the amount ofAED 367,801.95plus to 10% interest on the judgment sum until date of full payment in accordance with Article 36 of the Contract.
2. The Defendant shall pay the Claimant the DIFC Courts’ filing fee in the amount ofAED 20,890.
Issued by:
Delvin Sumo
SCT Judge and Assistant Registrar
Date of issue: 8 July 2024
At: 11amTHE REASONS
Parties
1. The Claimant is Napoleon (the “Claimant”), a company registered in Dubai, the UAE.
2. The Defendant is Norris (the “Defendant”), a company registered in Dubai, the UAE.
The Claim
3. In accordance with the hire contract dated 2 October 2023 (the “Contract”), the Claimant submits that it issued 13 invoices at the Defendant’s request pursuant to the purchase orders for equipment hiring such as fuel tanks, diesel, cables and extinguishers.
4. The Claimant is seeking sums allegedly owed to the Claimant by the Defendant pursuant to the Contract in the sum of AED 417,801.95 (inclusive of penalty fee of AED 20,000) in addition to 10% interest on the judgment sum and full payment of the DIFC Courts’ filing fee.
5. The Claimant relies on the terms of the Contract as set out in Articles 36 and 37, which reads as follows:
“36.Legal Fees:All legal fees in relation to outstanding “Napoleon” account payments requiring legal action for collection, are the full responsibility of the hirer and a 10% accumulating interest performance charge per annum is applicable to all court awarded payment orders, against the debt, until the debt is cleared and paid in full.
37.No Payment Compensation:In the event of any hire not being paid to Napoleon and a legal process is required to obtain payment, the customer is required to compensate “Napoleon ” an additional sum of AED20,000 for each hire contract that is not paid, and where legal recovery is required through the Courts.”
6. The Claimant submits that the Defendant is reluctant to pay the full amount owed to them without any legal justification.
7. As to the Defendant’s reluctance to pay the cable invoice dated 3 May 2024 (the “Cable Invoice”), the Claimant states that the Defendant never asked them to submit any sort of proof, such as a photo, which they would have done if the Defendant requested them to do so.
8. As such, the Claimant states that the Defendant is in default of payment as it failed to pay within 60 days of the invoice date, despite constant follow up, and is seeking the amount of AED 417,801.95 which is owed to them since November 2023.
The Defence
9. The Defendant submits that it has a long-standing relationship with the Claimant, as they are both in the rental business, and confirms that it is willing to pay the outstanding invoices in the amount of AED 268,968.96 (as AED 50,000 was paid on 21 June 2024) and offered a settlement plan of 4 months, as the Defendant has faced some financial hardship.
10. However, the Defendant is rejecting to pay the Cable Invoice on the basis that the Claimant failed to provide sufficient evidence for the alleged “missing/ damaged” cables to support their invoice of AED 28,833, apart from the invoice itself.
11. The Defendant states that upon receipt of the Claimant’s email demanding payment for the Cable Invoice, it initiated internal investigations to confirm whether this was payable as the Cable Invoice was allegedly not signed by a representative of the Defendant.
12. The Defendant maintains its position that all cables provided by the Claimant were delivered and accounted for, therefore submits that they are not liable to pay the Cable Invoice and the Claimant’s act of issuing an invoice does not necessarily mean that the amount is owed as it does not match with the Defendant’s records.
13. The Defendant rejects the Claimant’s claim for penalty and 10% interest and asserts that it tried many times to reach a settlement with the Claimant, but the Claimant kept rejecting the proposals made. Therefore, it is not justified to charge them as efforts were made from their end to settle this amicably as they were facing cash flow problems.
14. The Defendant contends that if there was any damage to the cables then the appropriate procedure would be to agree on a damage report, which they have not done, and submits that no damage report was issued to them either by the Claimant.
15. Therefore, the Defendant is not denying its liability and is only requesting the Claimant to provide them more time to settle the outstanding invoices apart from the Cable Invoice.
Discussion
16. On 21 June 2024, the Defendant settled a portion of the outstanding sum in the amount of AED 50,000. Therefore, this amount will be deducted from the final sum to be paid to the Claimant.
17. As per the Defendant’s defence dated 24 June 2024 and the Defendant’s admission at the Hearing, it is willing to settle all the invoices apart from the Cable Invoice in the amount of AED 268,968.96.
18. Given that this amount is not disputed, I hereby order the Defendant to pay the Claimant the amount of AED 268,968.96.
Is the Defendant liable to pay the Cable Invoice?
19. The issue at dispute pertains to whether the Defendant is liable to pay the Cable Invoice in the amount of AED 28,833, interest on judgment sum, as well as the penalty in the amount of AED 20,000 in accordance with Article 37 of the Contract.
20. The proforma invoice in respect of the cables mentions the following:
“Cables not returned, Informed Norris team on 29/02/2024 but even after several phone calls and Reminder they fail to Return the Missing Cables.
Invoiced as per instructions from Collection Department.”
21. The Claimant followed up with the Defendant in respect of the missing cables on 29 February 2024, and the Defendant responded on 22 March 2024 to ask for a copy of the signed delivery note, to which the Claimant responded by attaching the signed delivery notes.
22. Following this, several follow ups were sent by the Claimant which were not answered by the Defendant which prompted the Claimant to charge the Defendant the costs of the missing cables in the amount of AED 28,833 and issue the invoice on 3 May 2024 accordingly.
23. The Claimant has submitted evidence including photos of the cables in question which appears to be signed by an individual called “Nestor”. This individual’s name also appears in the delivery note dated 6 October 2023 as well as in different collection notes in respect of the fuel tank and diesel generator (which the Defendant agreed to pay).
24. Additionally, there seems to be another Individual called “Nael” whose name and signature is available on the photos of the cables in question and the delivery note dated 8 October 2023 as well as other items which the Defendant agreed to pay in respect of the diesel generator.
25. Further to the above, I reject the Defendant’s assertation that the delivery notes were not signed by a representative of the Defendant as the Defendant agreed to pay the other invoices which includes the same names and signatures.
26. The Claimant further submitted evidence of an email sent to the Defendant on 9 October 2023 which attaches the delivery notes and photo fleets of the cables which confirms the status as delivered.
27. The Defendant failed to submit any evidence to support its defence that the cables were returned. Therefore, I shall reject this defence and hereby order that the Defendant is liable to pay the Cable Invoice.
28. As to the penalty, even though the Defendant tried to negotiate a settlement/payment plan with the Claimant, this does not mean that the Claimant cannot invoke this provision under the Contract as Article 37 stipulates that in the event of non-payment and resorting to Court, the Claimant is entitled to the compensation.
29. Consequently, I am of the view that the Defendant shall pay the Claimant the penalty for late payment in the amount of AED 20,000 in accordance with Article 37 of the Contract.
30. It follows that the Defendant is also liable to pay 10% interest on the amount until date of full payment as described in Article 36 of the Contract as“the full responsibility of the hirer”.
31. In light of the aforementioned and taking into account the amounts mentioned above, I hereby order the Defendant to pay the Claimant the amount of AED 367,801.95.
(Outstanding balance of AED 368,968.95 + Cable Invoice of AED 28,833 + penalty of AED 20,000 – AED 50,000 which is the partial amount paid by the Defendant on 21 June 2024.)
Findings
32. The Defendant shall pay the Claimant the total amount of AED 367,801.95 (inclusive of the penalty) plus 10% interest on the amount until date of full payment in accordance with Article 36 of the Contract.
33. Given that the Claimant was successful in all its claims, the Claimant is entitled to receive the full filing fee. As such, the Defendant shall pay the Claimant the DIFC Courts’ filing fee in the amount of AED 20,890.