Claim No. SCT 082/2014
THE DUBAI INTERNATIONAL FINANCIAL CENTRE
COURTS
In the name of His Highness Sheikh Mohammed Bin Rashid Al Maktoum,
Ruler
IN THE SMALL CLAIMS
TRIBUNAL
BEFORE H.E. JUSTICE OMAR AL MUHAIRI
BETWEEN
FATEMAH
Claimant
and
FARRELL LLC
Defendant
Hearing: 6 February 2015
Judgment:9 March 2015
JUDGMENT OF H.E. JUSTICE OMAR AL MUHAIRI
Background
1.The Claimant is Fatemah (“the Claimant”), the owner of The Finch Limited, registered in the DIFC
2. The Defendant is Farrell Building Contracting LLC (“the Defendant”).
3. On 13 November 2013, the Claimant signed a contract with the Defendant for MEP works for the Finch Ltd. The scope of work as per the contract consisted of supply, installation, testing and commissioning of MEP works for plumbing and drainage works, HVAC works, electrical works, fire alarm and firefighting works; inclusive of all specified submissions, approval from EFT & Tecom, warranties and work execution at site pursuant to the drawing given by the Claimant’s consultant (Frank Consultant).
4. On 1 September 2014, the Claimant alleges in his Claim Form that there was a water leakage caused by faulty pipes installed by the Defendant. This leakage damage the internal walls of the Finch as well as the corridor areas of the building.
5. The Claimant alleges that after the incident he tried contacting the Defendant but they were out of town and not responsive, following which the Claimant was forced to solicit a third party at the sum on AED 10,300 to do the internal fit out, wood-works and finishing of the Finch because the water damage was unpleasant and began to cause hygienic issues due to the yellow discoloration of the walls caused by the fungus build up.
6. Subsequently, due to the damage caused to the building the owner of the building was able to settle its claim with the insurance company. However, it forced the Claimant to pay the insurance excess amount in the sum of AED 5,000 which the Claimant and the owner of the building agreed amicably.
7. As per the above the Claimant alleges that the Defendant should reimburse him the total amount of AED 15,300.
8. The Defendant in its defence alleged that they worked on the project pursuant to the drawing given by the Claimant’s Consultant (Frank Consultants). However, the Defendant also alleged that there were concerns in regards to the high pressure as evidenced in the emails between the Claimant and the property management.
9. Additionally, it is likely that water may have been supplied to abnormal pressure, much more than the allowable capacity of normal pipes and connections, which may be the reason for breakage of the connections, for which the Defendant is not responsible. Moreover, the breakage of the connection was reported almost 4 months after the Claimant had occupied the facility.
10. The Defendant alleged that the reason for excessive pressure in the water supply line was that no PRV (Pressure relief valve)was installed by the building management, and not the quality of the hose pipe which the Defendant had fixed. This was clear as such an incident had not occurred after the installation of the PRV on 26 September 2014 by the Defendant as requested by the building management at the meeting held on 25 September 2014.
11. Furthermore, the Defendant alleged that he had compensated the building management AED 10,000 in order to release the security deposit cheque and also had installed the PRV at their cost.
12. The Defendant in its defence stated that the Claimant is liable to reimburse the Defendant the amount paid to the building management as well as for the installation of PRV (Pressure relief valve)to rectify the damages due to reasons not attributable to the Defendant.
13. On 25 September 2014, a meeting was held between the Claimant, the Defendant, Fleet Global, FLICK Financial Services and Frank Consultants, in which it was agreed that:
- Finian will resolve The Finch pending actions which includes:
- Establishing root cause of the original incident on 1stSeptember and addressing it
- Removal of excess water underneath the facility
- Replacement of flexible hoses within the basins with acceptable quality version
- Installing the Pressure Valve (PRV) as requested by Strata Team
- Costs of repair of the interior of The Finch which were taken on by its representative due to failure to reach Finian or Yolk and agree on the course of action in the previous days between 1stsept and 24 Sept.
- Strata Team will provide its own requirements which have the scope of repair of the common areas affected by the leakage incident.
- All costs and actions to be undertaken by Finian (costs will be deducted from security deposit held with Fleet)
- @Mr. Flannery – we have managed to reach an amicable agreement together with Finian and Feet.
As of this morning we can confirm from our side that Finian has completed their end of the MEP. Related scope. Our interior repairs are still ongoing (approximately 80% completed this weekend till start of 27 sept – remaining to continue next week).
Fleet will receive official confirmation from Finian about their actions related to the leakage incident.
Please come back to me if there are any questions
Discussion
14. The basic defining characteristic of general contracting is that the contractor agrees to produce what has been specified in the documents. Designers, on behalf of the employer, produce the drawing and the contractor produces the work. Therefore, pursuant to the design provided the contractor should be invited to price a complete set of documents that describe the proposed work fully.
15. The contractor’s offer of price is based on the bill of quantities, which is a document that itemizes and quantifies, as far as possible, every aspect of the work. The bill of quantities is one of the most important documents; it cannot be produced if the design is incomplete.
16. In this case, the Claimant hired Frank Consultants which is not a party in these proceedings (“Frank”). The Contract between the Claimant and Frank has not been presented before this Court
17. The Defendant provided a bill of quantity as per Frank’s drawing, the Defendant proceeded as per the drawing approved by Frank and as per specification. On 6 June 2014 the Defendant completed the work and handed over to the Claimant.
18. The incident occurred on 1 September 2014 as explained above, subsequently the Claimant, the Defendant, Fleet Global, FLICK Financial Services and Frank Consultants held a meeting on 25 September 2014 to discuss the cause of the incident which was decided to be that a PRV (Pressure relief valve),which was not mentioned either in Frank’s drawing or the bill of quantity, had not been installed.
19. The Contract between the Claimant and Frank was not provided to the Courts and there is no evidence before me that the Defendant should have installed a PRV (Pressure relief valve).
20. Pursuant to the drawing given to the Defendant in order to carry out the work, a PRV was not part of it, and the Claimant failed to provide any evidence before me that the Defendant failed to exercise reasonable care to avoid causing the loss. Therefore, the Defendant is not liable for the incident which occurred for the reason that the drawing was presented by Frank Consultants hired by the Claimant. In fact the cause of the incident was not in the work scope of the Defendant, since it was not presented to him by the Consultants.
21. For the reasons set out above, it is hereby ordered that the Claimant’s claim is dismissed.
22. Each party shall bear their own costs.
Issued by:
Nassir Al Nasser
Judicial Officer
Date of issue: 9 March 2015
At: 4pm