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Anna Dadic v Orion Holding Overseas Limited [2008] DIFC CFI 007

Anna Dadic v Orion Holding Overseas Limited [2008] DIFC CFI 007

June 14, 2009

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Claim No: CFI 007/2008

THE JUDICIAL AUTHORITY OF THE DUBAI INTERNATIONAL FINANCIAL CENTRE

IN THE DIFC COURT OF APPEAL

Between

ANNA DADIC

Claimant

– V –

ORION HOLDING OVERSEAS LIMITED

Defendant


REASONS FOR ORDER BY CHIEF JUSTICE SIR ANTHONY EVANS
DATED 14 JUNE 2009


1. This is an application by the Claimant for permission to appeal against an Order made by Justice Tan Sri Siti Norma on 16 February 2009. The Order set aside a Default Judgment dated 11 January 2009 which ordered the Defendant to pay to the Claimant the sum claimed in the proceedings, namely US$352,858, together with interest and costs. The Default Judgment was obtained by the Claimant on the ground that the Defendant had not filed an acknowledgement of service or a defence to the claim, and that the relevant time for doing so had expired (RDC Part 13.4).

2. The Defendant applied to have the Default Judgment set aside on the grounds that (1) the Claim Form was not served before the Default Judgment was issued, (2) the Default Judgment was premature, in that the time for responding to the Claim Form (if it was served) did not expire until after 11 January 2009, the date the Judgment was issued, and (3) the Defendant has a real prospect of defending the claim, as regards both liability and the sums claimed (quantum).

3. The Defendant’s application to have the Judgment set aside was heard on 16 February 2009. The Judge’s Reasons were given in a Judgment dated 12 March 2009. No application for permission to appeal was made to the Judge. The time for appealing against the Judge’s Order was 14 days (RDC 44.36(2)). The present application was first made on 30 April 2009, long after the 14 day period expired, and the Claimant also applies for that period to be extended, which the Court has power to do even after it has expired (RDC 44.41 and RDC 4.2). (The Application for permission to appeal in fact was filed on 5 May 2009, but this can be taken as 30 April 2009 when the application was first made, but not in the correct form.)

4. The Judge was able to limit her judgment to the second of the three issues referred to above, namely, whether the Default Judgment was premature i.e. was issued before the time for acknowledging service expired. She could do this because the Defendant was prepared to accept that the Claimant served the Claim Form by mailing it by registered post on 17 December 2008, and the Claimant agreed that other issue raised by the Defendant, that it has a number of arguable defences, need not be inquired into, thereby saving time and costs (Judgment, first paragraph).

5. On the basis that 17 December 2008 was the date of posting, and that 14 days was the time allowed by the Rules for the Defendant to acknowledge service, or to file an admission or defence, the Judge held that the 14 day period continued until 12 January 2009, the day after the Default Judgment was issued. Therefore, she said, the Default Judgment “clearly ….. has been entered prior to the expiry of the 14 day limitation period. On that finding, I had allowed the Defendant’s application to set aside the Default Judgment and ordered that the Defendant file its Defence within 14 Days” (Judgment page 3).

6. The grounds put forward by the Claimant in support of her application for permission to appeal are set out in paragraphs 5.1 to 6.3 of her 15th Statement described as ‘Part 44 Appellant’s Notice’ dated 30 April 2009. First, she alleges that the Court was at fault in various ways with regard to the Default Judgment, and that the Court’s errors should be corrected with the result, she alleges, that the Default Judgment ought not to be set aside. Secondly, she relies upon what she describes as “newly discovered evidence” in support of these contentions.

7. It is noteworthy, therefore, that the Claimant does not challenge the Judge’s calculation of the 14 day period from service (assumed) by mailing by registered post on 17 December 2008. The calculation was not straightforward, because the Rules require 14 “clear days” which (1) excludes the day on which the period begins (RDC 2.13(1)), and (2) excludes Fridays, Saturdays and public holidays (“day” means “a business day being a normal working day in the DFC” RDC 2.12). Further, when the Claim is mailed to the Defendant by registered post, it is “deemed to be served on the Defendant on the second day after it was mailed to it” (Judgment page 2, and RDC 9.27). If mailed on Wednesday 17 December, therefore, it was deemed served on 21 December, because Friday 19 December and Saturday 20 December are excluded. Thereafter, in addition to Fridays and Saturdays, there were three public holidays, 29 December and 1 and 4 January. So the 14th clear day fell on Monday 12 January 2009 and the Default Judgment dated 11 January 2009 was issued before “the relevant time” expired.

8. The Claimant requested the Default Judgment on Thursday 8 January 2009, stating that “The Defendant has not filed an admission or defence to my claim”. The Default Judgment records that it was issued at 2 pm on 11 January 2009. The Courts’ Registry emailed it to the Claimant by an email message timed at “11.03 AM” and the Claimant forwarded it to the Defendant as an attachment to an email timed at “12.19 pm” the same day. The Defendant then emailed the Courts Registry (timed 5.03 PM) stating that the judgment had been communicated to it by the Claimant, and that previously it had not been aware of the Claim. On Monday 12 January by email timed “5.30 AM” the Registry sent to the Defendant copies of the Claim Form and of the Certificate of Service dated 21 December 2008 by which the Claimant certified that the Claim Form and other documents “were served on the Defendants by registered post sent on 17 December 2008”. (The Certificate also states “Attached is the letter of service and tracking record of the post office”. These documents are not included in the application bundle, but they are not necessary because the Defendants accept that the documents were mailed by registered post on 17 December 2009, see paragraph 4 above.)

9. The Claimant explains that the timings on her computer are 4 hours behind local time (in other words, they are GMT). Using local time, therefore, the Courts’ email to her was received at 3.03 pm and was forwarded by her to the Defendant at 4.19 pm. The Defendant emailed the Court at 1703 (5.03 pm).

10. The Court’s email timed at 3.03 pm also intended for the Defendant, but the Claimant suggests that the email address was incorrect and that the Defendant did not receive the Judgment until she forwarded it at 4.19pm. That is confirmed by the facts that the Defendant’s response to the Court is timed at 5.03 pm, not earlier, and it stated that the Judgment was communicated to it “by the counterparty” i.e. by the Claimant. I can assume, therefore, that the Claimant’s suggestion is correct.

11. The Claimant’s first ground of her present application is that the Court itself was at fault in entering the Default Judgment before the expiry of the 14 day period i.e. before 12 January 2009. Further, the Court failed to serve the Judgment on the Defendant on 11 January because the email address was incorrect, and the Defendant had not agreed to accept service by email, from the Court, in any event. The Court, she alleges, could and should have corrected these errors, and informed the parties about them (15th. Statement paras 5.1 – 5.4).

12. These allegations against the Court assume that the Default Judgment was invalid – whose responsibility it was, does not alter that fact – and they provide no ground, therefore, for denying the Defendant’s application to have it set aside.

13. The Claimant appears also to contend that the Court could and should have re-served the Judgment on or after the 12 January, when the 14 day period expired. But the Judgment was dated and issued on 11 January, and if that was premature the Defendant was entitled to have it set aside.

14. The second ground (15th. Statement paras 5.5 – 5.7) is that service was not effected until the Claimant forwarded it to the Defendant under cover of her email timed at 4.19 p.m. She contends, because this was after 4 pm, that the service is deemed to have been effected on the following day i.e. on 12 January, which she says was after the 14 day period expired. She also submits that under the Rules of Court, specifically RDC 13.4, 13.7 and 13.22, the Claimant “requests” a default judgment, but does not “obtain” it until the judgment is served. Therefore, by this somewhat convoluted reasoning, the Default Judgment was not “obtained” until after the 14 day period expired.

15. Her contention that the judgment was not obtained until it was served is plainly wrong. More generally, this ground suffers from the same basic defect as the first; it does not allow for the fact that the Default Judgment is dated 11 January and the 14 day period did not expire, on the Judge’s findings, which the Claimant does not challenge, until after that date. The Defendant clearly was entitled to have it set aside.

16. After the Defendant applied to have the Default Judgment set aside, the Claimant contended that the Claim Form had also been served on the Defendant at its place of business on 17 December 2008, by her husband on her behalf. But the Claimant had requested and obtained the Default Judgment by reference to the service effected by registered post, and the Judge clearly was correct to hold that the time for acknowledging service should be calculated on that basis.

17. For the above reasons, I refuse the Claimant’s application for permission to appeal, pursuant to RDC 44.12 and 44.14.

18. I further consider that the application is totally without merit, and pursuant to RDC 44.16 I ORDER that the Claimant may not request that my decision may be reconsidered at a hearing of the Court.

19. I make NO ORDER on the Claimant’s Application to extend the time limit for the application for permission to appeal.

20. I further ORDER that the Claimant shall pay the costs of these Applications, including Court fees and her own costs and the Defendant’s costs thereof, if any.

Chief Justice Sir Anthony Evans
Date of Issue: 14 June 2009
At 4.30pm

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