The decision in this case explains how 'fair
remuneration' should be assessed with respect to fees payable
to a consulting engineer for design services (notwithstanding the
fact that the consulting engineer failed to get the necessary Dubai
Municipality approvals in order to proceed with the project) and
the Court's approach to assessing the claim.
The decision also highlights the relevant provisions in the UAE
Civil Code and local legislation that served as guidance, (Articles
889 and 881 of the Civil Code and Article 42 of Local Order no. 89
of 1994).
A consulting engineer is entitled to his fees and costs if the
following conditions are met:
- The consulting engineer prepares the design according to the contract and governing regulations;
- The drawings do not contain any engineering defects;
In the event a dispute occurs between the consulting engineer
and owner and there is no written agreement, a judge will refer to
the Dubai Municipality's standard agreement (attached as a
sample to Local Order no. 89 of 1994) for guidance to assess the
claim.
Claim
An action was filed by a consulting engineer (the
"Claimant") against its employer (the
"Defendant"), requesting the Court to order the Defendant
to pay his fees for drawings and designs that were provided to the
Defendant. The Defendant commissioned the Claimant to prepare
drawings for a new hotel to be built. Both parties knew that the
Dubai Municipality (DM) had already designated the land for parking
and that the DM previously rejected a request made by the Defendant
to build on the same plot. Nevertheless, the Defendant instructed
the Claimant who completed the work required and filed an
application to the DM for their approval with the hope that the DM
will change the purpose of the designated plot. The DM did not
grant the approval for the construction of the hotel. Accordingly,
the Defendant did not pay the Claimant his fees.
Court Of First Instance
In the Court of First Instance, both parties filed a request for an
expert and the Court of First Instance subsequently ruled in favour
of the Claimant and ordered the Defendant to pay the amount of AED
4 million plus 5% interest.
Both parties appealed.
Court Of Appeal
The Court of Appeal rejected all appeals and cancelled the Court of
First Instance judgment. Both parties appealed before the Court of
Cassation
Court Of Cassation
The Court of Cassation found the Court of Appeal incorrect in its
decision to cancel the judgment and referred the matter back to the
Court of Appeal to deliver another judgment on this matter
according to the guidelines set out by the Court of Cassation. The
Court of Cassation affirmed the following:
- There was a consensus between the two parties that the Claimant was to prepare preliminary drawings. The DM requires drawings to be submitted with the application for an approval.
- Despite the absence of a written agreement, and requirement for
a consultant to enter into an
agreement under Local Order No. 89 of 1994, the Court will look at intentions and meanings, and not
just words and form.
The employer is obliged to pay the consulting engineer his fees despite the absence of an agreement and as long as the DM rejection was not on the basis that the designs had defects.
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