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You are here: BAILII >> Databases >> The Dubai International Financial Centre >> Norma v Nunzio [2024] DIFC SCT 141 (05 June 2024) URL: http://www.bailii.org/ae/cases/DIFC/2024/DSCT_141.html Cite as: [2024] DIFC SCT 141

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Norma v Nunzio [2024] DIFC SCT 141

June 05, 2024 SCT - JUDGMENTS AND ORDERS

Claim No: SCT 141/2024

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE SMALL CLAIMS TRIBUNAL

BETWEEN

NORMA

Claimant

and

NUNZIO

Defendant

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ORDER WITH REASONS OF SCT JUDGE AND ASSISTANT REGISTRAR DELVIN SUMO

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UPON this claim being filed on 1 April 2024 (the “Claim”)

AND UPON this Claim having been called for a Consultation before SCT Judge Delvin Sumo on 16 May 2024 (the “Consultation”) wherein the Claimant’s representative attended and the Defendant failed to attend although served notice of the Claim

AND UPON reviewing the Order of SCT Judge Delvin Sumo dated 16 May 2024 (the “Order”)

AND UPON reviewing the Defendant’s Appeal Notice dated 23 May 2024 seeking to set aside the Order (the “Set Aside Application” or “Application”)

AND UPON reviewing the court file and documents contained therein

AND PURSUANT TORules 53.34 and 53.35 53.364.2 and 4.12 of the Rules of the DIFC Courts (the “RDC”)

IT IS HEREBY ORDERED THAT:

1. The Set Aside Application shall be granted.

2. The Order shall be set aside.

3. The Defendant shall file its response (if any) to this Claim via the eRegistry online portal by no later than4pm on 7 June 2024.

4. The SCT Registry shall list a consultation in this Claim in due course.

Issued by:
Delvin Sumo
SCT Judge and Assistant Registrar
Date of Issue: 5 June 2024
At: 1pm

SCHEDULE OF REASONS

The Parties

1. The Claimant is Norma (the “Claimant”), a company registered and located in Dubai, the UAE.

2. The Defendant is Nunzio (the “Defendant”), a company registered and located in Dubai, the UAE.

Background

3. On 1 April 2024, the Claimant filed a claim with the DIFC Courts’ Small Claims Tribunal (the “SCT”) seeking compensation by the Defendant in the sum of AED 26,527 (the “Claim”).

4. On 15 April 2024, the Defendant filed its Defence setting out its intention to defend all of the Claim.

5. Thereafter, a consultation was listed before SCT Judge Hayley Norton on 7 May 2024 and before me on 16 May 2024 (the “Consultations”), and at the Consultations the Claimant’s representative attended, and the Defendant failed to appear, although served notice of Claim.

6. Pursuant to Rule 53.32 of the Rules of the DIFC Courts (the “RDC”), where a party fails to appear at a consultation, the SCT Judge may decide the small claim against that party or adjourn the consultation.

7. On 16 May 2024, pursuant to RDC 53.32, I made an order against the Defendant in the sum of AED 26,527, in addition to an order that the Defendant pay the Claimant the court filing fee in the sum of AED 1,326.36 (the “Order”).

8. On 23 May 2024, the Defendant filed an Appeal Notice seeking to set aside the Order (the “Set Aside Application” or “Application”). The Defendant requested that the Application be determined without a hearing.

9. On 3 June 2024, the Defendant filed its reply to the Claimant’s submissions dated 29 May 2024 by way of an Appeal Notice. The Defendant, however, confirmed by way of email correspondence to the SCT dated 4 June 2024 that the Appeal Notice was filed in error and that the Appeal Notie may be considered as their evidence in reply to the Application.

Discussion

10. RDC 53.34 and 53.35 state as follows:

“53.34

A party who was neither present nor represented at the consultation and against whom the claim has been decided in accordance with Rule 53.32 …may apply for that order to be set aside and the claim reinstated.

53.35

A party who applies for an Order to be set aside in accordance with Rule 53.34, must make the application not more than 7 days after the day on which notice of the Order was served on him. The SCT judge who’s Order is subject to an application to set aside may extend the time for the filing of an application to set aside an order.”

11. Pursuant to RDC 53.35, an application to aside an order must be made not more than 7 days after the day on which the notice of the order was served on him. I note that the Defendant filed its Application on 23 May 2024, being 7 days after the Order was issued. Therefore, I have determined that the Application has been filed in time.

12. RDC 53.36 sets out the requirements that an applicant must demonstrate for an order to be set aside and the claim be reinstated. The SCT Judge may grant an application only if the applicant has (i) a good reason for not attending the consultation; or (ii) has a real prospect of success in the small claim.

13. I do not find it prudent to make a final determination on the merits of the Claim at this juncture, but to merely decide on whether the Defendant has demonstrated at least one of the two requirements set out at paragraph 12 of this Order.

14. When seeking to determine whether the Defendant has demonstrated ‘a real prospect of success’ (i.e. requirement 2), I will need to consider whether the Defendant has demonstrated a ‘realistic’ rather than a ‘fanciful’ prospect of success, as confirmed by H.E Shamlan Al Sawalehi in the matter of Al Tamimi v Jorum Ltd & Anor [2016] DIFC CFI 028.

15. It is clear that the Defendant was well aware of the Claim given that a Defence was filed on 15 April 2024. However, the Defendant states in the Application that it encountered technical issues when attempting to attend the Consultations. This statement is supported by emails from the Defendant that have been sent to the SCT setting out that the Defendant was unable to join the Consultations.

16. Moreover, the Defendant has set out various arguments within its Application which have persuaded me that the Defendant has demonstrated a ‘realistic’ prospect of success in this Claim. Accordingly, I order that the Application be granted, and the Order be set aside.

17. The Defendant shall file its response to this Claim via the eRegistry online portal by no later than4pm on Friday, 7 June 2024and the SCT Registry shall list a consultation in this Claim in due course.