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You are here: BAILII >> Databases >> The Dubai International Financial Centre >> Narciso v Nairn [2024] DIFC SCT 085 (21 May 2024) URL: http://www.bailii.org/ae/cases/DIFC/2024/DSCT_085.html Cite as: [2024] DIFC SCT 85, [2024] DIFC SCT 085

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Narciso v Nairn [2024] DIFC SCT 085

May 21, 2024 SCT - JUDGMENTS AND ORDERS

Claim No: SCT 085/2024

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE SMALL CLAIMS TRIBUNAL OF DIFC COURTS

BETWEEN

NARCISO

Claimant

and

NAIRN

Defendant

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Hearing :	30 April 2024
Further Submissions :	2 May 2024
Judgment :	21 May 2024

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JUDGMENT OF H.E. JUSTICE MAHA AL MHEIRI

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UPON the Claimant filing its Claim Form dated 26 February 2024

AND UPON this Claim having been called on 30 April 2024 for a hearing before H.E. Justice Maha Al Mheiri, with the Claimant’s representative and the Defendant in attendance

AND UPON reading the submissions and evidence filed and recorded on the Court file

IT IS HEREBY ORDERED THAT:

1. The Defendant shall pay the Claimant the amount of AED 85,000.

2. The Defendant shall return to the Claimant the 3 pending cheques in relation to Lease Agreement.

3. The Defendant shall pay the Claimant’s Court fees in the amount of AED 4,252.89.

Issued by:
Hayley Norton
SCT Judge and Assistant Registrar
Date: 21 May 2024
At: 1pm

SCHEDULE OF REASONS

The Parties

1. The Claimant is Narciso (the “Claimant”), the tenant of Unit , DIFC, Dubai, UAE (the “Unit”).

2. The Defendant is Nairn (the “Defendant”), the owner of the Unit.

Background and the Preceding History

3. The Defendant and Mr. Nasir entered into a lease agreement for the rental of the Unit to open a salon under the name of Nash. On 1 July 2023, the Claimant bought the Nash from Mr. Nasir for the amount of AED 500,000. As part of the purchase, the Claimant was to receive their trade license, tenancy contract, equipment and fit out, bank accounts and employees.

4. On 10 July 2023, Mr. Nasir notified the Claimant that he could not finalize the business transfer due to the Defendant filing a claim for unpaid rent, which resulted in an order being issued against Mr. Nasir . The Defendant also initiated enforcement proceedings (the “Enforcement Claim”) against Mr. Nasir and the broker agency.

5. The Claimant contacted the Defendant to try to lease the Unit directly from her and to start the work within the Unit as originally planned. On 16 January 2024, the Claimant and the Defendant entered into a new tenancy contract (the “Lease Agreement”) from the period of 16 January 2024 to 16 January 2025 for the amount of AED 170,000.

6. On 30 January 2024, the Court was scheduled to seize the furniture from within the Unit and to proceed to sell the furniture at an auction. On 27 February 2024, the Defendant discontinued the enforcement proceedings and tried to negotiate a price for the existing furniture in the Unit to be sold to the Claimant.

7. The parties failed to reach an agreement in relation to the furniture.

8. The underlying dispute arises over the Defendant’s refusal to remove the existing furniture belonging to the Defendant’s previous tenant as it prevented the Claimant from being able to utilize the Unit.

9. On 26 February 2024, the Claimant filed a claim with the DIFC Courts Small Claims Tribunal (the “SCT”) due to the parties’ failure to execute the Tenancy Agreement and the Claimant is seeking the return of the first rental deposit in the amount of AED 85,000, and the 3 postdated cheques provided by the Defendant to the Claimant for the remainder of the rent.

10. The parties met for a Consultation with SCT Judge Maitha Al Shehhi on 3 April 2024 but were unable to reach a settlement.

11. In line with the rules and procedures of the SCT, this matter was referred to me for determination, pursuant to a hearing held on 30 April 2024 with the Claimant’s representative and the Defendant in attendance (the “Hearing”).

Discussion

12. First and foremost, the relevant Lease Agreement is in relation to a Unit in the DIFC, therefore by default any agreement shall be governed by the prevailing law of the DIFC, United Arab Emirates and that upon failure to resolve any disputes connected to the Lease Agreement, the dispute shall be referred to the DIFC Courts. Therefore, it is clear and undisputed that the DIFC Courts have jurisdiction to decide this matter.

13. There is a dispute between the Claimant and Defendant in relation to whether the Defendant is required to return the Claimant’s first deposit and 3 cheques.

14. At the Hearing, the Defendant argued that one of the Claimant’s partners negotiated to buy the furniture of the previous tenant and that the issue will be resolved. The Defendant submits that she is not responsible for the delay and she signed the Tenancy Agreement and the Unit has been transferred to be under the Claimant’s name.

15. In reply, the Claimant states that the negotiations between the parties were unsuccessful and did not reach a solution, and the Claimant continues to refuse to clear the old furniture from the Unit to enable the Claimant to start renovation.

16. The Court examined the Tenancy Agreement between the two partners. Clause 8 of the Tenancy Agreement states as follows:

“8. The Landlord undertakes to enable the tenant of the full use of the premises including its facilities (swimming pool, gym, parking lot, etc) and do the regular maintenance as intended unless other condition agreed in written, and not to do any act that would detract from the premises benefit.”

17. Having reviewed the Tenancy Agreement, I find that the Defendant failed to fulfil her obligation in providing the Unit ready to use, although the Defendant argues that the Claimant can clear the old furniture from the Unit there is nothing in writing obligating the Claimant to do so. The Defendant argues that she has evidence to prove that the Claimant agreed to buy the furniture, however no evidence was presented to the Court to support that assertion.

18. The Defendant received the first cheque and cashed it; therefore, she has a legal obligation to provide the Unit in a condition that is ready to use. As such, as the Defendant failed to meet her obligations under the Tenancy Agreement and the Claimant has the right to terminate the Tenancy Agreement and request for a refund of the first deposit in the amount of AED 85,000 and the return of its 3 pending cheques.

Finding

19. In light of my finding above, the Defendant shall pay the Claimant the amount of AED 85,000 and return the 3 pending cheques.

20. The Defendant shall pay the Claimant’s Court fees in the amount of AED 4,252.89.