Claim No: SCT 349/2023
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
BEFORE SCT JUDGE MAITHA ALSHEHHI
BETWEEN
(1) MURSAHI
(2) MIRIYI
Claimants
and
MORIB
Defendant
| Hearing : | 7 November 2023 |
|---|---|
| Further submissions : | 8 November 2023 |
| Judgment : | 17 November 2023 |
JUDGMENT OF SCT JUDGE MAITHA ALSHEHHI
UPON the claim having been filed on 12 September 2023
AND UPON the Defendant’s defence filed on 19 September 2023
AND UPON a hearing having been listed before SCT Judge Maitha AlShehhi on 7 November 2023, with the Claimants and the Defendant’s representative in attendance (the “Hearing”)
AND UPON reviewing the documents and evidence filed and recorded on the Court file
IT IS HEREBY ORDERED THAT:
1. The Claimants’ claims shall be dismissed.
2. Each party shall bear its own costs.
Issued by:
Hayley Norton
SCT Judge and Assistant Registrar
Date of issue: 17 November 2023
At: 10am
THE REASONS
Parties
1. The First Claimant is Mursahi (the “First Claimant”), an individual who sought the services of the Defendant to apply for a visa.
2. The Second Claimant is Miriyi (the “Second Claimant”), an individual who sought the services of the Defendant to apply for a visa.
Collectively (the “Claimants”)
3. The Defendant is Morib (the “Defendant”), a company specialised in immigration services registered and located in Dubai.
The Claim
4. On 19 April 2023, the Claimants appointed the Defendant for immigration services to apply for and obtain a Portugal business visa in return for payment of AED 26,250 excluding any third-party fees (the “Agreement”).
5. The Claimants submit that they were led to believe that all of the fees payable in respect of obtaining the Portuguese visa were already included in the Agreement in addition to an extra sum of EUR 3,000 for government fees.
6. The Claimants submit that they received a “checklist” which set out all of the documentation they needed to provide in order to facilitate the visa process one week from signing the Agreement.
7. The Claimants are seeking reimbursement of the fees paid in the amount of AED 50,000 and an order rendering the Agreement void for misrepresentation.
8. On 24 April 2023, the Claimants submit that they received a WhatsApp message from the Defendant stating that pending government fees in the amount of EUR 3,000 per person (total of EUR 6,000) needed to be settled by the First and Second Claimants. The Claimants allege that such a per person payment scheme was not communicated to them prior to signing the Agreement.
9. The Claimants submit that there is no legal basis for requesting them to pay on a per person basis especially since requirements such as obtaining the taxpayer identification number (NIF/Número de Identificação ) is free of charge as well as the cost of company formation process which ranges from EUR 220 to 360 as mentioned on the Portuguese Government website. Thus, The Claimants submit that there is no justification for payment of EUR 3,000 per person.
10. The Claimants further submit that they have undergone research after signing the Agreement and found out that there are multiple upcoming payments which were not communicated to them by the Defendant, such as obtaining a social security number, police clearance and necessity of having a tax representative in Portugal. Therefore, the Claimants are of the view that there is misrepresentation as they would not have signed the Agreement if such information was available to them prior to signing the Agreement.
11. The Claimants concede that they sought further clarification and a breakdown of the fees from the Defendant which allegedly resulted in a revised Government fee of EUR 1,000 to be paid per person for NIF in addition to EUR 2,000 for company formation (i.e not per person). The Claimants paid EUR 2,000 for NIF.
12. On 20 June 2023, the Defendant contacted the Claimants by way of email with regards to the rest of the payment, as per the below:
“The total final cost of your registration after the discussion with the management is EUR 2,000/- which is equivalent to AED 8,025/- as of today’s conversion rate.”
13. Further to the above, the Claimants remitted the remaining balance of EUR 2,000 under the assumption that there is nothing further to be paid as they believed that the remaining payment pertained to them both.
14. The Claimants submit that the Defendant did not raise the issue of non-payment of the other EUR 2,000 payment until 18 July 2023, which is one month from the last payment.
15. Based on the above, the Claimants submit that there are discrepancies in the Defendant’s fee communication and allege that the Defendant was negligent and misrepresented the case by omitting critical information such as living expenses, which is why they seek to recover the amounts paid and render the Agreement null and void.
16. The issue that is at dispute is whether there was discrepancy in the Defendant’s fee communication with the Claimants in relation to the payable Government fees pertaining to company formation and whether the payment was intended to be in the sum of EUR 2,000 for both Claimants or EUR 2,000 for each Claimant.
The Defence
17. The Defendant submits that they were transparent in all communications with the Claimants as all vital information has been provided to them at the meeting, within the Agreement, as well as within the checklist. The Defendant submits that the Claimants should have contacted them if there was any misunderstanding or if they had any queries.
18. The Defendant submits that there is no misrepresentation as the Claimant failed to support their claim with evidence.
19. The Defendant alleges that the Claimants were aware that the Government fees were to be borne by each Claimant as it was clearly communicated to them and is evident in the Claimant’s message dated 24 April 2023 wherein they enquired whether payment is per person or not.
20. The Defendant submits that the First Claimant paid all of the Government fees while the Second Claimant refused to do so which is why the Claimants now seek to terminate the Agreement and ask for a refund.
21. The Defendant refutes the Claimants’ claim in relation to living expenses and other material obligations in Portugal, and submits that it is not rational as the Defendant company only handles the visa process and is not responsible for the Claimants’ living expenses and accommodation in Portugal.
22. The Defendant is of the view that the Claimants had a change of mind, as such, they are not eligible for a refund as outlined in clause 5 of the Agreement and rejects the Claimants’ claim in full.
Applicable law
23. This dispute is governed by the Law of Obligations No. 5 of 2005 as amended (the “DIFC Law of Obligations”), the DIFC Contract Law No. 6 of 2004 as amended (the “DIFC Contract Law”), in conjunction with the Agreement.
Discussion
Was there lack of transparency by the Defendant when dealing with the Claimants?
24. The Agreement sets out the Defendant’s expected course of action in respect of the Claimants which reads as follows:
“Our course of action for application process will exactly follow our offered services explained above and set in Terms & Conditions enclosed in and with this package”
25. In accordance with the above, schedule two of the Agreement sets out all the services expected from the Defendant before and after obtaining the visa on behalf of the Claimants. These services include but are not limited to detailed assessment of client’s circumstances, advising for the exact documentation needed for an application to visa authorities and formation and establishment of business. Therefore, the services offered are limited to the issuance of the Claimants’ visa.
26. That being said, schedule two of the Agreement does not include advising the Claimants on the implications or risks of residing in Portugal.
27. As the Claimants’ claim revolves around the alleged omission on behalf of the Defendant with regards to expenses that will be incurred upon living in Portugal, I am of the view that the Defendant is an advisory company that assists with visa applications and its role is to ensure that the Claimants avoid any legal issue that may occur in relation to their relocation by assisting them to obtain visa and other necessary documentation. Therefore, their role cannot be extended to include advising about life in Portugal.
28. I understand the Claimants’ argument that the checklist (which exhibits all the documents that will be needed from the Claimants during this process) was provided to them after entering into the Agreement, however, this does not change the fact that the Agreement encompasses the services that the Defendant would be performing, so there is no ambiguity in this regard. In addition, the costs of these services are categorised as third-party fees.
29. I do not find that there was lack of transparency in this regard by the Defendant.
Was there discrepancy in fee communication which amounts to misrepresentation?
30. Article 29 of the DIFC Law of Obligations reads as follows:
“(1) There is misrepresentation if:
(a) There is an incorrect statement of fact, past or present, or a statement of opinion falling within Article 29(3);
(b) The representor or his agent makes the statement, or has notice that the statement is made; and
(c) The statement of made in order to induce, and does induce, a person to enter into a contract.
……
……
……
(5) Non-disclosure cannot amount to a representation, unless the non-disclosure is a breach of a specific duty to disclose.”
31. The Claimants submit that they utilised the Defendant’s terminology with regards to fees in accordance with what is mentioned in the Agreement. The Claimants submit that when the Defendant uses the phrase “total amount” then this means it covers both Claimants and when they refer to “per person” then it means for each Claimant.
32. As mentioned above, the Claimants were under the impression that all fees to be paid in respect of obtaining the visa is included within the Agreement in addition to payment of EUR 2,000 as Government fees as allegedly communicated to them by the Defendant. In addition, it was confirmed they have already made this payment to the Defendant.
33. The Claimants submit that the language used by the Defendant was ambiguous. I shall set out the Defendant’s correspondence below in respect of Government fees.
34. On 30 March 2023 (before signing the Agreement), the First Claimant contacted the Defendant to enquire about the Government fees and was informed that it was“3,000 Euros to be paid step by step”. When the Defendant asked the First Claimant whether she intends to proceed, she replied“I am but my partner is not”.
35. I am of the view that the above correspondence demonstrates the Claimants’ knowledge before signing the Agreement about the costs of the Government fees and that it is logical for it at this stage to mean that it is due to be paid by each Claimant.
36. In addition, the Defendant contacted the First Claimant by way of email dated 20 June 2023 requesting her to provide certain documentation to facilitate the company formation process such as employment documents, personal bank statements and parents’ details, and requested payment by stating“the total final cost of your registration after the discussion with management is EUR 2,000”.
37. The Claimants submit that the use of “total costs” means that the amount includes them both in line with the term total cost referred to in the Agreement.
38. I do not agree with the Claimants’ interpretation based on a few factors.
39. The first being that the Defendant reached out to the First Claimant using her email address and mentioned her name in the headline which shows that it is intended to for her personally.
40. The second is due to the fact that the Defendant used the term “you” or “your” throughout the entire email to demonstrate that it is intended for one person.
“Please note that we are proceeding with your Company Registration in Portugal in the coming week to obtain the following:
…
…
…
Moreover, can you please provide us as well a few documents and information requested by the bank for your bank account process and completion of business plan
Please find below the bank details to proceed the payment for your company formation” (emphasis added)
41. The third is the sensitive nature of the documents sought which are normally produced by each applicant itself such as bank statements and employment documents.
42. Lastly, upon remittance of this amount, the receipt generated by the Defendant has the name of the First Claimant only which means it acknowledges that payment was made by one Claimant only even if it did not ask about the remaining payment until a month later.
43. Further to the above, I do not find there is discrepancy in fee communication nor misrepresentation.
Are the Claimants entitled to a refund?
44. I now turn to the wording of the Agreement in respect of an entitlement of a refund.
45. Clause 5 of the Agreement reads as follows:
“If the client revokes this Agreement or change his/her mind or found to a criminal record after signing this Agreement, then MIGRATION CHAMBERS shall not be responsible to refund any amount received.”
46. The Agreement does not mention misrepresentation or the consequences of such. However, given that the Claimants do not wish to proceed with the Agreement anymore, then in accordance with clause 5 of the Agreement, the Claimants are not entitled to seek a reimbursement of the fees paid.
47. Also, the Agreement does mention that the fee excludes any Government fees and the extra fees that the Claimants are claiming that the Defendant did not disclose are Government fees such as a police clearance letter and so forth.
48. Accordingly, I do not find that the Defendant has misrepresented the case as it is not in line with Article 29 of the DIFC Law of Obligations.
49. I find that the Claimants have failed to satisfy the Courts that there was misrepresentation on behalf of the Defendant and did not fulfil its obligations pursuant to the Agreement, and I shall therefore dismiss the Claimants’ claims.
Findings
50. For the above cited reasons, I shall dismiss the Claimants’ claims.
51. Each party shall bear its own costs.