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Nell v Nemi [2023] DIFC SCT 485

August 09, 2024 SCT - JUDGMENTS AND ORDERS

Claim No: SCT 485/2023

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF FIRST INSTANCE

BETWEEN

NELL

Claimant/Respondent

and

NEMI

Defendant/Applicant

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ORDER WITH REASONS OF JUSTICE RENE LE MIERE

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UPON reviewing the Judgment of H.E. Justice Maha Al Mheiri (the “Judge”) dated 16 May 2024 (the “Jurisdiction Order”)

AND UPON reviewing the Case Management Order of H.E. Justice Nassir Al Nasser dated 10 July 2024

AND UPON reviewing the Defendant’s Appeal Notice dated 23 July 2024 seeking permission to appeal the Jurisdiction Order (the “PTA Application”)

AND UPON considering the documents and submissions filed by both parties and recorded on the case file

AND UPON hearing and considering the oral submissions of the Defendant/Applicant and the Claimant/Respondent made at a hearing held on 8 August 2024 (the “Hearing”)

IT IS HEREBY ORDERED THAT:

1. The PTA Application is dismissed.

2. Each party shall bear their own costs of the Application.

Issued by:
Delvin Sumo
SCT Judge and Assistant Registrar
Date of Issue: 9 August 2024
At: 9am

SCHEDULE OF REASONS

Summary

1. The Claimant was employed by the Defendant as a grilled chicken maker from 2 September 2023 until he resigned on 29 November 2023. He resigned on the ground that he was not paid his salary, was required to work excess hours and was not paid annual leave entitlements. He claims unpaid end of employment entitlements.

2. The Defendant contested the jurisdiction of the Court. The Defendant asserted that its trading license was issued by the Department of Economic Development and Tourism in Dubai and the Claimant was issued with a residence and work permit by the Ministry of Human Resources and Emiratisation in Dubai.

3. On 16 May 2024, the DIFC SCT made an order that the Defendant’s jurisdictional challenge is dismissed and the DIFC Courts have jurisdiction to hear and determine the claim..

4. By appeal notice issued on 23 July 2024, the Defendant seeks permission to appeal (the “PTA Application”) the Jurisdiction Order.

5. At the Hearing of the Defendant’s PTA Application the Defendant was represented by Mr Nakul. The Claimant represented himself.

6. For the reasons that follow, the Defendant’s PTA Application is dismissed. The parties will bear their own costs of the PTA Application.

Judgment

7. A jurisdiction hearing was held before H.E. Justice Maha Al Mheiri (the “Judge”) on 4 April 2024, with the Claimant’s and the Defendant’s representatives in attendance.

8. The Judge noted that the Defendant submitted:

“(a) Civil or commercial claims and actions to which the DIFC or any DIFC Body, DIFC Establishment or Licensed DIFC Establishment is a party;

(b) Civil or commercial claims and actions arising out of or relating to a contract or promised contract, whether partly or wholly concluded, finalised or performed within DIFC or will be performed or is supposed to be performed within DIFC pursuant to express or implied terms stipulated in the contract;

(c) Civil or commercial claims and actions arising out of or relating to any incident or transaction which has been wholly or partly performed within DIFC and is related to DIFC activities; . . .

(e) Any claim or action over which the Courts have jurisdiction in accordance with DIFC Laws and DIFC Regulations. . . .”.

11. The Judge found that the dispute falls under the jurisdictional gateways in Article 5(A)(1)(a) and (b).

12. The Judge found that the dispute falls under Article 5(A)(1)(a) because the Defendant has a branch in the DIFC which is a registered entity.

13. The Judge found that the dispute falls under Article 5(A)(1)(b) because the Claimant worked at the Defendant’s branch located in the DIFC and therefore the employment contract was performed in the DIFC.

The PTA Application

14. Rule 53.91 of the Rules of the DIFC Courts (the RDC”) provides that permission to appeal may be given only where:

(1) the Court considers that the appeal would have a real prospect of success; or

(2) there is some other compelling reason why the appeal should be heard.

15. The Defendant’s PTA Application addresses the merits of the Claimant’s claim. In essence, it asserts that the Claimant’s claims are unfounded, and the Defendant does not owe the Claimant anything. The PTA Application does not address the issue of jurisdiction or the findings of the Judge that this Court has jurisdiction to hear and determine the Claimant’s case.

16. At the Hearing, the Defendant submitted that the Claimant’s claim is unfounded, and the Defendant does not owe the Claimant anything. Those matters go to the merits of the claim. They are not relevant to this PTA Application for permission to appeal the Jurisdiction Order.

17. The Defendant further submitted that the Defendant is established in Dubai and has a commercial trading license issued by the Ministry of Economy and Tourism and that the Claimant has a residency permit granted by the Ministry of Human Resources and Emiratisation in Dubai on the sponsorship of the Defendant in Dubai. The Defendant further submitted that the dispute between the Claimant and the Defendant has been submitted to the Ministry of Human Resources and Emiratisation in Dubai and should be left to be resolved in onshore Dubai.

18. The Judge found that the Claimant worked at the Defendant’s branch within the DIFC based on the credibility and reliability of evidence of the Claimant.

19. The Judge’s findings are findings of fact. Those findings were not directly contradicted by the Defendant at the hearing of the PTA Application.

20. In any event, those findings are findings of fact which were open to the Judge on the material before the Court.

21. The appeal does not have a real prospect of success. There is no other compelling reason why the appeal should be heard.

22. The Defendant’s PTA Application will be dismissed.

23. The parties must bear their own costs.