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You are here: BAILII >> Databases >> The Dubai International Financial Centre >> Nazir v Nancy [2024] DIFC SCT 037 (14 May 2024) URL: http://www.bailii.org/ae/cases/DIFC/2024/DSCT_037.html Cite as: [2024] DIFC SCT 037, [2024] DIFC SCT 37

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Nazir v Nancy [2024] DIFC SCT 037

May 14, 2024 SCT - JUDGMENTS AND ORDERS

Claim No: SCT 037/2024

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF FIRST INSTANCE

BETWEEN

NAZIR

Claimant/ Applicant

and

NANCY

Defendant/ Respondent

---

ORDER WITH REASONS OF JUSTICE ANDREW MORAN

---

UPON reviewing the Judgment of H.E. Justice Nassir Al Nasser (the “Judge”) dated 4 April 2024 (the “Judgment”)

AND UPON reviewing the Defendant’s Application Notice dated 19 April 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

AND UPON hearing and considering the oral submissions of the Applicant made at a hearing held on 13 May 2024 (the “Hearing”) in the presence of the Respondent’s representative.

IT IS HEREBY ORDERED THAT:

1. An extension of time to make the Application for permission to appeal, which was made out of time, is granted.

2. The Application is refused.

3. Each party shall bear their own costs of the Application.

Issued by:
Delvin Sumo
SCT Judge and Assistant Registrar
Date of Issue: 14 May 2024
At: 1pm

SCHEDULE OF REASONS

1. By an Application Notice, including the required Application for Permission to Appeal, issued on 19 April 2024 (the “Application”), the Claimant/Applicant and intending Appellant, Nazir seeks permission to appeal the Judgement of H.E. Justice Nassir Al Nasser dated 4 April 2024 (the “Judgement”) sitting in the Small Claims Tribunal (the “SCT” or the “lower court”).

2. The Judgement dismissed the Claimant’s claim made against Nancy (the “Defendant” in the lower court and the “Respondent” to the Application) for payment of two outstanding invoices in the sum of AED 52,500.

3. In its response submitted on 6 May 2024, the Respondent has raised an objection to the Application on the ground that it was served beyond the time limit allowed under Rule 53.107 of the Rules of the DIFC Courts (the “RDC”). The Judgement and order it is sought to appeal were issued on 4 April 2024, but the Application was not issued until 19 April 2024. Consequently, it was issued beyond the time limit allowed.

4. The Applicant requested an extension of time pursuant to RDC 53.110 and explained that:

“…The judgement was issued on April 4th, however, there was a delay due to the EID holiday of the following week, which was observed from April 9th to 12th. Additionally, the subsequent week was marked by adverse weather condition in the UAE, leading to floods and the temporary closure of the Nazir Office as it was inaccessible to employees at all”.

5. The Court has power under RDC 4.2 (1) to extend time as requested in this case. Whilst the Court was unimpressed by the excuse proffered, which does not explain why the Appeal Notice was not filed in time, the delay was very short, and no prejudice was suffered by the Respondent in consequence of it. In the particular circumstances of this case, and especially having regard to the lack of merit in the Application, the extension of time for serving the Appeal Notice is hereby retrospectively granted to the date and time of its filing.

6. By his Judgment, the learned Judge ordered as follows:

“1. The Claimant’s claim shall be dismissed.

2. There shall be no order as to costs.”

7. Under RDC 53.87, the “Court”, meaning the Court to which an appeal is made, will allow an appeal where the decision of the lower court was:

“ (1) wrong;

(2) unjust because of a serious procedural or other irregularity in the proceedings; or

(3) wrong in relation to any other matter provided for or under any law.”

8. By RDC 53.89, an application for permission to appeal a decision of the SCT, must be made to the Court of First Instance in a particular form, and under RDC 53.91, permission to appeal may only be granted by me as a judge of the Court of First Instance:

“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.”

9. Application of that test, or satisfaction that its requirements have been met, obviously requires a prospective inquiry and assessment. In short, an applicant/intending appellant must show that there is a real (i.e. a realistic as opposed to a fanciful) prospect of persuading an Appeal Court, that the judge of first instance, in the Small Claims Tribunal was wrong in what he decided or proceeded in a manner that was unjust. This requirement must be satisfied by the grounds of appeal advanced, and submissions made at an oral hearing (if one is held as it was in this case), showing how it is contended that the judge erred in his findings and decision.

10. Having considered the Applicant’s “Statement of Appeal” dated 19 April 2024 and all of the documents it produced for the hearing below, (which it failed to produce initially in support of its claim, but which the Judge gave it an opportunity to produce after the hearing) and all documentary materials it has now substantially re-produced in support of this application, I am wholly unpersuaded that there is any prospect, still less a realistic prospect, of an appeal court finding that the Judge was wrong in the conclusions he reached; or that his decision was unjust because of a serious procedural or other irregularity in the proceedings.

11. The Judge’s conduct of the hearing below shows that he was meticulously fair to the Claimant, in circumstances where he would have been entitled to dismiss the claim on its original presentation, for want of proof that the Claimant had performed under its contract. This it was required to do, in order to justify its rendering of the invoices in respect of which the claim was brought. Instead, he afforded to it, a second bite of the cherry (as it were), to put its claim in order, and substantiate that claim by production of documents proving it had delivered the services it was charging for.

12. The Judge found as a fact upon his review of those documents, that they did not substantiate the Claimant’s claim that it had performed its contract as far as it could but had been prevented by the Defendant’s alleged lack of co-operation from rendering, as the jargon of the industry describes the performance required, the “deliverables”. This finding was obviously on the basis that he accepted the serial complaints raised by the Defendant in such as its email of 23 October 2023, which made it clear that the Claimant had not performed or had rendered a wholly deficient performance. The judge was obviously not persuaded by the plethora of excusatory communications that due performance had been delivered; or that insofar as it had not been, it was the Defendant’s fault. These were straightforward findings of fact which the Judge was entitled to make on the materials and evidence put before him (which he facilitated for the Claimant’s benefit of putting its case).

13. The Applicant has not come anywhere close to demonstrating where or how the Judge went wrong in reaching his findings of fact in its written or oral submissions before me. In fact, as the Claimant’s representative at the Hearing frankly admitted, it is by this application, blatantly seeking to have a third bite at the cherry of proving its case by“resubmitt[ing] all concrete evidence to substantiate the work undertaken for both PR and Media Services”(see para 3.2 of its Statement of Appeal).

14. I afforded the Claimant’s representative multiple opportunities at the Hearing to demonstrate where or how the Judge went wrong in reaching his findings of fact, but all she did was to repeat parts of its failed and rejected case on the facts. That approach and presumption of entitlement to a re-hearing or re-trial, is completely contrary to the principles that govern the exercise of this appellate jurisdiction, in which all questions of fact are for the Small Claims Tribunal, whose findings will not be interfered with, absent clear and precise demonstration they were wrong. There was no such demonstration in anything the claimant has written or advanced before me.

15. In those circumstances, the Application is refused.