Mikha v Merat [2023] DIFC CT 093 (23 June 2023)


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The Dubai International Financial Centre


You are here: BAILII >> Databases >> The Dubai International Financial Centre >> Mikha v Merat [2023] DIFC CT 093 (23 June 2023)
URL: http://www.bailii.org/ae/cases/DIFC/2023/DCT_093.html
Cite as: [2023] DIFC CT 093, [2023] DIFC CT 93

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Mikha v Merat [2023] DIFC SCT 093

June 23, 2023 SCT - JUDGMENTS AND ORDERS

Claim No. SCT 093/2023

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 OF DIFC COURTS
BEFORE OF H.E. JUSTICE MAHA AL MHEIRI

BETWEEN

MIKHA

Claimant

and

MERAT

Defendant


Hearing :30 May 2023
Judgment :23 June 2023

JUDGMENT OF H.E. JUSTICE MAHA AL MHEIRI


UPON this Claim being filed on 24 February 2023

AND UPON a Hearing having been held before H.E. Justice Maha Al Mheiri on 30 May 2023, with the Claimant and the Defendant’s representative in attendance

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

IT IS HEREBY ORDERED THAT:

1. The Claimant’s Claims shall be dismissed.

2. Each party shall bear their own costs.

Issued by:
Hayley Norton
SCT Judge and Assistant Registrar
Date of issue: 23 June 2023
At: 9am

THE REASONS

The Parties

1. The Claimant is Mikha (the “Claimant”), an individual filing a claim in relation to a consultancy agreement signed with the Defendant.

2. The Claimant is Mirat (the “Defendant”), a company registered in Dubai, the UAE.

Background and the Preceding History

3. The underlying dispute arises over the appointment of the Claimant by the Defendant pursuant to a consultancy contract dated 14 December 2022 (the “Consultancy Contract”). The Claimant was hired as a consultant on an exclusive basis as a design advisor for the Defendant with a monthly fee of USD 2,000. The Claimant’s work for the Defendant was to be performed remotely.

4. On 31 January 2023, the Defendant terminated the Claimant’s Consultancy Contract with immediate effect due to non-performance of services.

5. On 24 February 2023, the Claimant filed a claim in the DIFC Courts Small Claims Tribunal (the “SCT”) seeking payment of USD 2,890 for unpaid dues for 44 days, and unquantified sums to be paid for causing mental anxiety and termination of the Contract.

6. On 2 March 2023, the Defendant filed an Acknowledgment of Service setting out its intention to defend all of the claim.

7. The parties met for a Consultation with SCT Judge Delvin Sumo on 22 May 2023 but were unable to reach a settlement. 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 May 2023.

The Claim

8. The Claimant submits that he was terminated on 31 January 2023 without cause and that the Defendant refused to pay his entitlement for 44 days of work that he has performed for them.

9. The Claimant submits that he never received a warning letter from the Defendant to indicate that he was not performing his job as stated by the Defendant. In addition, the Claimant submits that he did not receive any feedback from the Defendant regarding the services he had provided, nor the quality of the work performed.

10. On 20 December 2022, a meeting was held with the Claimant and the Defendant present. The Claimant submits that during the meeting, it was discussed that the Claimant would commence work in relation to 10 websites and the purpose of the meeting, as the Claimant understood was to put an action plan together for this task and not to deliver the 10 websites in the next month.

11. In reply, the Defendant submits that the Claimant did not perform his obligations as a web consultant to the Defendant. In December 2022, the Claimant was requested to provide design services for the Defendant and the Claimant was provided with a design brief and several other projects that were to be commenced in the week of 20 December 2022.

12. The Defendant and the Claimant were required to work together on behalf of the contracting entity to organise the deadlines for each project. The Defendant submits that this was not possible due to lacking details and failure to provide clear deadlines and clarity overall from the Claimant.

13. Whilst there were many attempts to follow up with the Claimant on the deliverables that were outstanding, the Defendant consistently received new statements for the reason for delay from the Claimant. Whilst the brief was given for two projects for the website to be redesigned in the week of 20 December 2022, the Defendant did not receive any preliminary baseline design throughout the duration of the Claimant’s work.

14. On 30 January 2023, the Defendant provided an email from the Claimant whereby he stated that he will send through the designs for ZZZ and XXX, but nothing was ever received. The email was sent from the Claimant 4-5 weeks following the meeting held on 20 December 2022. The Defendant submits that the tasks that had been assigned to the Claimant were discussed daily during the remote meetings that were conducted.

15. The Defendant also submits that the only deliverables the Defendant’s client received was in relation to a basic design of 2-3 pages for a website, and not the websites that had been discussed in the week of 20 December 2022. In addition, the Defendant submits that as the Claimant worked remotely, he often did not attend the daily meetings due to personal reasons.

16. The Defendant has submitted to the Court evidence to support this accusation against the Claimant by providing emails between the parties wherein the Claimant fails to attend meetings and does not deliver the projects as promised.

17. Accordingly, the Defendant submits that it had to terminate the Claimant’s services for non-performance and the Claimant is not entitled to receive pay him for 44 days he claims to have worked.

Discussion

18. First and foremost, the relevant Consultancy Contract falls under the DIFC Courts’ jurisdiction as set out at the below clauses:

“14.1 This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws and regulations of DIFC.

14.2 Both Parties agree that DIFC SCT shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims) wherein the value of the claim is AED 100,000 or less, the DIFC SCT shall have sole jurisdiction.

14.3 Any disputes arising out of or in connection with this Agreement, including any disputes regarding its validity or its termination and the validity of this choice of forum clause shall exclusively be brought before the DIFC SCT.”

19. There is no dispute between the parties as to the existence and applicability of the Consultancy Contract issued by the Claimant.

20. In reply, the Claimant failed to provide any evidence to support that he provided any services during the period for which he is claiming payment. At the Hearing, the Claimant agreed that for a period of 11 days he accepts that he should not be paid as he did not show up for any meetings nor provide any work during that time.

21. In addition, as the Claimant works remotely, and therefore the only factor that can demonstrate the work he has allegedly performed over the period of 44 days is to submit proof of work. At the Hearing, he stated that only 3 logos were submitted and interviews completed for the company with no evidence to support his Claim. The Claimant also submits that he conducted interviews with freelancers on behalf of the Defendant through email and WhatsApp, although no evidence of the alleged communication was submitted to the Court.

22. In light of the above, I find that the Defendant terminated the Claimant’s Consultancy Contract in accordance with terms agreed by the parties, and due to the Claimant’s non-performance, he is not entitled to any payment for that period, in accordance with Article 10 of the Consultancy Contract below:

“10. OBLIGATIONS ON TERMINATION

10.1 On termination of the Agreement (howsoever arising) or earlier, if requested by the Client to do so, the Consultant shall:

(a) Immediately handover to the Client all Company property which is in the Consultant’s possession or under their control.

(b) Arrange for the handover of any original or copy documents obtained by the Consultant in the course of providing the Services to the operations manager.

(c) The Consultant also undertake to irretrievably delete any information relating to the business of the Client stored on any magnetic or optical disk, cloud or memory, and all matter derived from such sources which is in the Consultants possession and/or under their control outside of the premises of the Client.”

Conclusion

23. For the above cited reasons, I find that the Claimant’s claims shall be dismissed for lack of evidence.

24. There shall be no order as to costs.


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