Neveah v Noa [2024] DIFC SCT 045 (24 April 2024)


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The Dubai International Financial Centre


You are here: BAILII >> Databases >> The Dubai International Financial Centre >> Neveah v Noa [2024] DIFC SCT 045 (24 April 2024)
URL: http://www.bailii.org/ae/cases/DIFC/2024/DSCT_045.html
Cite as: [2024] DIFC SCT 45, [2024] DIFC SCT 045

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Neveah v Noa [2024] DIFC SCT 045

April 24, 2024 SCT - JUDGMENTS AND ORDERS

Claim No: SCT 045/2024

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

In the name of His Highness Sheikh Mohammad Bin Rashid Al Maktoum, Ruler of Dubai

IN THE SMALL CLAIMS TRIBUNAL
BEFORE H.E. JUSTICE MAHA AL MHEIRI

BETWEEN

NEVEAH

Claimant

and

NOA

Defendant


Hearing :28 March 2024
Further Submissions :15 April 2024
Judgment :24 April 2024

JUDGMENT OF H.E. JUSTICE MAHA AL MHEIRI


UPON the Claim Form being filed on 29 January 2024

AND UPON a Hearing being held before H.E. Justice Maha Al Mheiri on 28 March 2024, with the Claimant’s and Defendant’s representatives in attendance

AND UPON reviewing the documents and evidence submitted in 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: 24 April 2024
At: 3pm

THE REASONS

Parties

1. The Claimant is Neveah (the “Claimant”), a company specialising in the provision of wholesale electrical equipment.

2. The Defendant is Noa (the “Defendant”), a company that purchased electrical equipment from the Claimant.

Background and Hearing

3. On 26 September 2021, the Claimant assigned the Defendant to setup a salesforce solution website for its business, the parties signed an agreement titled “Salesforce Implementation Commercial Proposal” (the “Agreement”) which had an outline of the project, along with another document titled “Appendix A Technical Proposal” (the “Appendix”) which entailed all the technical details of the project.

4. The Defendant’s role behind this project was that they were the contractual entity of the project (“Salesforce Project”). The Claimant alongside with the Defendant chose Nova as the implementation entity to migrate the Claimant’s existing data to salesforce and develop different functionalities needed for the Claimant’s business process within the salesforce team.

5. The Defendant started working on the Salesforce Project software system between September 2021 to June 2022, there was ongoing communication between the three parties to get the project finalised within the time frame agreed.

6. In June 2022, due to the lack of communication from the Defendant and Nova, the Claimant issued a notification for breach of the Agreement, the notice was sent through courier, 15 days later the breach was not resolved so the Claimant issued a further notice to the Defendant where the breach was still not resolved. There was email communication back-and-forth between the parties, but nothing was ever put in place to resolve the breach.

7. Nova presented a resolution for the Salesforce Project which the Claimant did not agree on. After which, the Claimant hired a third-party contractor to get the software implemented. Once the Claimant assessed the damages associated with the Defendant’s work, a case was filed with the DIFC Courts as per the Agreement for a refund of money paid and costs as the Defendant did not deliver the required system.

8. On 29 January 2024, the Claimant filed a case against the Defendant in the DIFC Courts Small Claims Tribunal (“SCT”) seeking from the Defendant the amount of AED 163,804 being the following:

(a) AED 75,830.69 refund for the amount paid for the implementation of the Salesforce Project;

(b) AED 88,000 associated damages due to wasted management time and resources; and

(c) DIFC Court Fees of AED 8,191

9. The Court scheduled a Consultation before SCT Judge Delvin Sumo on 7 March 2024, but the parties were unable to reach a settlement.

10. In line with the rules and procedures of the SCT, this matter was referred to me for determination, pursuant to a Hearing held on 28 March 2024 with the Claimant’s and the Defendant’s representatives in attendance.

The Claim

11. The Claimant argues that the work performed on the Salesforce Project was rejected by them and they assigned a third party to execute the unfinished works. The Claimant also submitted a list of the work completed by the third party to execute the Salesforce Project, arguing that the third party only used 5 percent from the Defendant’s work. The Claimant also rejects the Defendant’s argument stating that 90% of the work was completed and submits that the work submitted does not meet the criteria detailed in the Appendix. In addition, the Claimant argues that the implementation partner’s work, Nova, assigned by the Defendant, was not up to standard.

12. In reply, the Defendant argues that Nova was chosen by the Claimant to be the implementation partner in the Salesforce Project, and the Defendant was not in the loop in relation to the ongoing communications in regards to the project. In addition, when the Claimant was not satisfied with the outcome, it raised its concerns to Nova and in reply Nova presented a resolution to the Claimant. The Claimant stopped communicating with them in relation to the work performed in the Salesforce Project and they were given a 90-day period to come back with comments, but they did not comment on the work that was delivered, and only came back in October 2023.

“From: Nadia Nadia@Nova

Date: Tuesday, 6 September 2022 at 6:50 AM

To: Neal Neal@Neveah Neal

Cc: Niles Niles@Nova, Nyle Nyle@Noa, Nyx Nyx@Nova

Subject: Conclusion of business

Dear Neal,

This is a courtesy to inform you that the period of 30 days for remediation and bug fixes has passed. Since we have not received any response, as per the commercial proposal, all services shall be deemed to have been accepted by Neveah.

Moving forward we can no longer continue so engage on this as our business is concluded.

We wish you the best of luck.

Kind regards.

Nadia

Operations Director”

Findings

13. The dispute is governed by the DIFC Law of Contract and the relevant case law and principles concerning a breach of contract. Pursuant to Clause 8 of the Agreement, as stated:

“8. Governing Laws:

This agreement shall be governed and construed in accordance with the laws of the Emirate of Dubai and applicable federal laws of the United Arab Emirates. Any dispute arising out of or in connection with this agreement, including any question regarding its existence, validity or termination, shall be subject to the non-exclusive jurisdiction of the Courts of the Dubai International Financial Centre and both parties agree that claims up to AED 1,000,000 may be heard in the DIFC Small Claims Tribunal. Each Party irrevocably waives any objection it may have to disputes arising out of or in connection with this contract being heard in the courts of Dubai International Financial Centre on the grounds that it is an inconvenient forum.”

14. The Court does acknowledge the Claimant hired a third-party to complete the Defendant’s work, but also notes that the Claimant was silent about the dissatisfaction of the resolution presented by Nova. The email sent by Nova on 6 September 2022 was an indication that the period to raise any issues has expired and the work is considered acceptable to the Claimant. Moreover, even after the email was sent to the Claimant, it did not argue or raise issues with the services presented.

15. The Claimant has failed to present any evidence to the Court to suggest that the Defendant’s services were unsatisfactory within the 90 days period assigned in the Agreement, nor did it request for a refund of the amount paid in the Agreement.

16. As such, the Court deems that the services delivered to the Claimant are satisfactory, pursuant to Clause 6 of the Agreement, as stated:

“6. Warranty: Except as expressly outlined in the said Proposal, Noa makes no other warranty to the customer, any person or entity or any kind, express or implied, including, without limitation, any conditions of quality and any implied warranty of title, non-infringement, merchantability or fitness for a particular purpose. Acceptance: All Services shall be deemed to have been accepted by the Customer if no issues concerning their quality and/or performance are raised by the customer within 30 working days of the handover of the system by Noa, which shall be confirmed by both parties in writing. The Customer shall not in any event unreasonably withhold or delay its acceptance response to Queries: The customer project coordinator will ensure the timely and complete response to the queries or clarifications sought by Noa. Decision Making: The project manager designated by the Neveah will be deemed to possess the authority to make day-to-day project decisions, organize and command resources. Statutory Requirements: Neveah shall inform in writing to Noa in case any statutory & regulatory issues can impact the security solution or any other aspect of the project.

Work Rules: Neveah shall inform the rules, regulations, security policies & code of conduct to be observed by Noa personnel during the execution of the project at the customer's site. Final Terms: These terms and conditions form an integral part of the commercial or priced offer of Noa for the provision of Noa services. These terms and conditions supersede all prior representations, warranties and agreements, written or oral unless otherwise agreed to in writing by Noa.

7. Breach of contract: Both parties will have the right to remedy a breach of this contract within fourteen (14) days of being notified of the breach in writing by the other party, pursuant to clause.”

17. Although the Claimant sates that the 90% percentage was not accepted by them even after the resolution presented by Nova, there is no evidence to support this, the Claimant was silent and hired a third party and only raised the issues 1 year after the Nova’s resolution email.

18. This is a very straightforward matter; the Defendant delivered the services to the Claimant, and the Claimant failed to present any evidence to support their rejection of the services within the time frame indicated in the Agreement. Therefore, the Claimant’s claims are dismissed.

19. Each party shall bear their own Costs.


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