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You are here: BAILII >> Databases >> The Dubai International Financial Centre >> Nysa v Norwood [2024] DIFC SCT 480 (25 March 2024) URL: http://www.bailii.org/ae/cases/DIFC/2024/DSCT_480.html Cite as: [2024] DIFC SCT 480 |
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Nysa v Norwood [2023] DIFC SCT 480
March 25, 2024 SCT - JUDGMENTS AND ORDERS
Claim No: SCT 480/2023
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURT OF FIRST INSTANCE
BETWEEN
NYSA
Claimant/Respondent
and
NORWOOD
Defendant/Applicant
ORDER WITH REASONS OF JUSTICE LORD ANGUS GLENNIE
UPON reviewing the Judgment of H.E. Justice Maha Al Mheiri (the “Judge”) dated 20 February 2024 (the “Judgment”)
AND UPON reviewing the Defendant’s Appeal Notice dated 5 March 2024 seeking permission to appeal the Judgment (the “Application”)
AND UPON considering the documents and submissions filed and recorded on the case file
AND UPON hearing and considering the oral submissions of the Claimant/Respondent and the Defendant/Applicant made at a hearing held on 21 March 2024 (the “Hearing”)
IT IS HEREBY ORDERED THAT:
1. The Application is refused.
2. Each party shall bear their own costs of the Application.
Issued by:
Hayley Norton
SCT Judge and Assistant Registrar
Date of Issue: 25 March 2024
At: 10amSCHEDULE OF REASONS
1. This is an Application for permission to appeal the judgment of the Small Claims Tribunal Judge given on 20 February 2024. In terms of Rule 53.87 of the DIFC Court Rules, an appeal will be allowed where a decision was wrong. There is also a possibility of an appeal based on the decision being unjust, because of procedural unfairness or a miscarriage of justice, but nothing of that sort arises in this case. In terms of Rule 53.91 permission to appeal may only be given if there is a real prospect of success or some other compelling reason why the appeal should be heard. The question here, therefore, is whether the Defendant can show that she has a real prospect of success on the appeal if permission to appeal were to be granted.
2. The Judge made two findings, both in favour of the Claimant; first, that the Defendant was to pay the Claimant the sum of AED 13,372.50 in respect of repairs to be carried out on the apartment; and secondly, that the Defendant was to return the remainder of the security deposit in the sum of AED 10,000.
3. Dealing first with the question of repairs, the Judge in her Judgment identified the items in dispute. I will not set them out in detail, but they include work to the windows, air conditioning fan motors, exhaust fans and refrigerator. She held that these did not fall under the description of wear and tear; and she held that it was the responsibility of the lessor, the Defendant, to rectify these issues. She concluded on this aspect that the Defendant had an obligation to ensure the premises that were rented to the Claimant were habitable and could be lived in without disruption. In paragraph 20 of her Judgment, she referred to Article 38 (1) of the DIFC Leasing Law which states:
“[a] Lessor must ensure that Residential Premises are maintained in good repair”
She also referred to Article 14 of the DIFC Law No. (1) of 2020 which states:
“[a] Lessor must take all reasonable steps to ensure that the Lessee has quiet enjoyment of the Leased Premises during the term of a Lease.”
She concluded in terms of the legal obligation that the Defendant was therefore required to ensure that the premises were maintained in good repair and required to take all such reasonable steps in order to ensure that the Claimant had quiet enjoyment of the premises during the tenancy period.
4. Having set out the nature of the obligation on the Defendant, and having reviewed the written and oral submissions, the Judge was satisfied that there had been negligence from the Defendant’s side in relation to maintenance. The Claimant’s responsibility, she said, was to contact the Defendant to resolve the issues; the Defendant’s refusal to rectify the root of the problem had resulted in other maintenance issues within the premises. As a result of all that, she concluded that the Defendant had failed to ensure that the Claimant had quiet enjoyment of the premises during the term of the lease thereby breaching Article 14 of DIFC Law No. 1 of 2020. It does not matter but she could also have found, on the basis of the same conclusions of fact, that there was a failure to comply with Article 38 of DIFC Leasing Law.
5. The Defendant says that the Judge was wrong in this respect, and she refers to clauses 2.5, 2.6 and 2.9 of the second lease covering the period 2023 to 2024. These provided in summary - I am not giving a precise definition of them - that the obligation to ensure that the premises are maintained in good repair and so on lies with the lessee and not the lessor. The problem with that submission, which is not mentioned by the Judge, is that it takes no account of Clause 1 of the lease which expressly in terms says that the lease is subject to the provisions of DIFC Leasing Law and Regulations and other real property laws or regulations applicable to real property in the DIFC; and in particular the last sentence of that clause states that:
“Any term or condition inserted in this lease that conflicts with the laws shall be considered invalid.”
On that basis, it seems to me clear that the Judge was entitled to rely upon those provisions of DIFC Law, and I can see no basis for saying that the Judge was wrong. An appeal on this point would have no real prospect of success. Therefore, on this aspect, the Application for leave to appeal is refused.
6. As to the dispute about the security deposit, this is a dispute of fact. The Judge held, on the basis of the signed Addendum to the first lease and other documents, that the Defendant had been paid a security deposit in respect of the first lease of AED 15,000. She was entitled to make this finding; it justified her conclusion that, taking account of the security deposit on AED 5,000 still held for the second lease, the Defendant should return the sum of AED 10,000 to the Claimant. There is no basis for saying that she was wrong in her conclusion. An appeal on this point would have no real prospect of success.
7. In those circumstances, the Application for permission to appeal is refused.