Claim No: SCT 101/2025

IN THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF FIRST INSTANCE

BETWEEN

OANA

Claimant

and

ONYX

Defendant

JUDGMENT OF H.E. JUSTICE SHAMLAN AL SAWALEHI

UPON the claim being filled on the 12 January 2025 (the “Claim”)

AND UPON the Order of SCT Judge Maiha Al Shehhi dated 27 May 2025 awarding the Claimant the Costs (the “Judgment”)

AND UPON the Defendant’s Application on the 3 June 2025 for Permission to Appeal the Judgment (the “PTA”)

AND UPON the PTA being listed for a hearing before H.E. Justice Shamlan Al Sawalehi on 8 August 2025 with the Claimant’s representative and the Defendant in attendance (the “Hearing”)

IT IS HEREBY ORDERED THAT:

1. The PTA is dismissed.

There shall be no order as to costs.

Issued by:
Delvin Sumo
SCT Judge and Assistant Registrar
Date of Issue: 14 August 2025
At: 2pm

Introduction

1. This is an Application for Permission to Appeal made by the Defendant (the “PTA”). The primary basis for the appeal rests on the Defendant’s assertion that the Court misinterpreted the nature of his defense concerning the breach of the Agreement.

2. The Defendant maintains his initial defense that the sealing of the access door to his Unit violated the Agreement and undermined the Unit’s use as a retail space. The Defendant argues that this justifies withholding the service charge payments.

3. The background to this case, including the details of the Claim and the submissions, has already been set out in the previous Order issued by SCT Judge Maitha AlShehhi on 27 May 2025. For the purposes of this Judgment, the Court refers to and incorporates the background as outlined in that Order.

4. For the reasons set out below, the PTA is dismissed.

The Claimant’s Submissions

5. The Claimant maintains that the Defendant’s obligation to pay service charges is clearly stipulated under the Ophelia Management Statement and the Agreement.

6. The Claimant further submits that these charges are unrelated to the Defendant’s ability to lease or use the Unit for retail purposes.

7. The Claimant asserts that the Defendant’s attempt to withhold payments due to a sealed door is not legally justified, as the Defendant’s financial obligations are tied to the ownership of the Unit and the maintenance of the common areas, not to the functionality or leaseability of the Unit.

The Defendant’s Submissions

8. The Defendant argues that the original Agreement with the Claimant included an essential feature, public access from Omega to Ozzy through the door adjacent to his Unit. This access, the Defendant claims, was a key selling point and was essential to the Unit’s viability for retail use.

9. The Defendant submits that the sealing of this access rendered the Unit effectively useless for its intended purpose and constitutes a breach of the Agreement, justifying the withholding of service charge payments until the access issue is resolved. The Defendant seeks either the reopening of the door or the reclassification of the Unit to “Commercial” to allow it to be rented out.

Findings

10. Having reviewed the facts and the materials submitted, I find that the Defendant’s obligation to pay service charges is independent of the issues raised regarding the sealing of the door and the access to his Unit. The Defendant’s failure to lease or use the Unit for retail purposes does not alter his financial obligation under the Ophelia Management Statement and Agreement.

11. The Ophelia Management Statement and the Agreement clearly impose an obligation on the Defendant to contribute towards the maintenance and management of the common property at Omega. These service charges are not contingent upon the Defendant’s ability to lease the Unit or its functionality as a retail space.

12. The Defendant has not demonstrated that the sealing of the access door affected his legal obligation to pay the service charges. As such, the Defendant remains liable for the service charges under the terms of the Agreement and the Ophelia Management Statement.

13. While the Defendant’s frustration with the sealed access door is understandable, I find that the Defendant has failed to establish a material breach of the Agreement that would justify withholding payment of service charges.

14. The Agreement does not provide for the exact functionality of the access doors, and I find that the Defendant's claims regarding the sealing of the door do not override his obligation to pay the service charges.

15. The service charges are a recurring financial obligation tied to the ownership of the Unit, not its immediate functionality or leaseability. The Defendant’s attempt to link the withholding of service charges to the alleged breach of the Agreement does not justify the suspension of payment for these charges.

16. The Defendant has requested that the Unit be reclassified from “Retail” to “Commercial” to make it viable for leasing. I find that the original Agreement with the Claimant does not provide for such reclassification and that this request is outside the scope of the Claimant’s obligations.

17. The Agreement specifically outlines the permitted use of the Unit as “Retail,” and the Defendant has not demonstrated that the Claimant has any obligation to alter the permitted use of the Unit.

18. I recognise the Defendant’s frustration; however, I find that the Defendant’s obligation to pay service charges is a separate and enforceable obligation, and his claims regarding the breach of access do not override this financial obligation.

19. I have considered the broader context of the Agreement and the Defendant’s obligations and find that there is no legal basis for granting the Defendant this PTA. The Defendant’s PTA is therefore dismissed.