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Eilwyn v Eimear [2014] DIFC SCT 011

Eilwyn v Eimear [2014] DIFC SCT 011

May 6, 2014

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Claim No. SCT 011/2014

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 H.E. JUSTICE SHAMLAN AL SAWALEHI

BETWEEN

EILWYN

Claimant

and

EIMEAR

Defendant

Hearing: 10 April 2014

Judgment: 17 April 2014


JUDGMENT OF H.E. JUSTICE SHAMLAN AL SAWALEHI


Background

1. The Claimant is Eilwyn.

2. The Defendant is Eimear.
3. On 20 November 2013, the Defendant, the seller, entered into a Memorandum of Understanding (MOU) drafted by the Claimant, the beneficiary, with the buyer of the Defendant’s Property.
4. The MOU was signed in the net amount of AED 4,636,000 net to seller with a 10% deposit of AED 463,600 to be transferred upon signing of the MOU. The buyer signed the MOU on 20 November 2013 and handed over the deposit cheque in the amount of AED 460,000 at the time of signing. The Seller signed the MOU on 4 December 2013.
5. The buyer subsequently withdrew from the purchase of the property, forfeiting his deposit pursuant to Clause 9 of the contract which states:

“In the event the Buyer withdraws from the purchase or by reason of his own default fails to execute the transfer by the Transfer Date, or fails to make the payment as stipulated in Clause 2 (a) (b) (c) and (d), then it shall be expressly agreed that the Buyer shall forfeit 80% of the Deposit to the Seller by way of compensation and 20% to compensate the Claimant’s administrative cost.”

6. Despite repeated requests from the Claimant, the Defendant has not paid the 20% of the forfeited deposit due to the Claimant and as a result, the Claimant filed this claim with the Small Claims Tribunal on 19 February 2014 not as a party to the Agreement, but as a beneficiary of the signed MOU.
7. In his reply, the Defendant requested the original signed MOU in addition to evidence that the buyer has indeed withdrawn from the purchase of the property.
8. The parties to this case took part in a consultation meeting, but no settlement was reached.
9. An SCT hearing was held on 10 April 2014. The Claimant was represented by its Managing Director and its Head of Compliance, and the Defendant was represented by the General Manager.
10. During the hearing, the Defendant requested that the Court confirm that the buyer had in fact withdrawn from the purchase of the property and after such confirmation, that the Defendant would indeed pay the Claimant the full amount due.
11. While the Claimant maintained that they were no longer in communication with the Buyer, they additionally promised to hand over their 20% of the deposit in the event that the original Buyer went through with the purchase at a future date.
12. Both the Claimant and the Defendant agreed to waive the provisions of the MOU that stipulated that disputes arising under the MOU should be settled by arbitration under the rules of the Dubai International Arbitration Centre and jointly agreed to submit the matter to the exclusive jurisdiction of the DIFC Courts.

Finding

13. It has been confirmed that the Buyer has in fact withdrawn from the purchase of the property and, in any event, is in legal default by virtue of Clause 9 of the contract which states that the Buyer will be in default if he fails to execute the transfer by the Transfer Date of 20 December 2013.
14. Whether the Buyer wishes to complete the transaction on a future date is irrelevant as he has withdrawn and defaulted in failing to execute the transfer by 20 December 2013.
15. As a result, the Defendant is entitled to 80% of the Deposit as compensation and the Claimant is entitled to 20% of the deposit as a beneficiary of the Agreement.
16. For the reasons mentioned above, it is hereby ordered that the Defendant pay the Claimant the amount of AED 94,434.42, being the sum of AED 92,000 constituting 20% of the actual deposit paid (AED 460,000), and AED 2,432.42 being the sum of 50% of the Claimant’s Court fees.

Issued by:
Nassir Al Nasser
Judicial Officer
Date: 6 May 2014
At: 11am

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