Claim No: CFI-002-2016
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURT OF FIRST INSTANCE
DAS REAL ESTATE OWNED AND REPRESENTED BY MUSSABEH SALEM MUSSABEH HUMAID AL MUHAIRI
NATIONAL BANK OF ABU DHABI PJSC
ORDER OF JUSTICE SIR DAVID STEEL
UPON reviewing Application Notice CFI-002-2016/1 and supporting documents dated 18 January 2016 seeking mandatory injunctive relief and a prohibitive injunction against the Defendant
AND UPON reviewing the Defendant’s submissions dated 31 January 2016
AND UPON hearing Counsel for the Claimant and Counsel for the Defendant at a hearing on 2 February 2016
IT IS HEREBY ORDERED THAT:
1. The Claimant’s Application is refused.
2. The Claimant shall pay the Defendant 80 percent of their costs of this application, to be assessed by the Registrar if not agreed.
3. The Claimant be refused permission to appeal this order.
Maha Al Mehairi
Date of issue: 8 February 2016
SCHEDULE OF REASONS
1. This application is made under an Application Notice dated 18 January 2016. The Application is by the Claimant in these proceedings, Das Real Estate, which is owned and represented by Mr Mussabeh Salem Mussabeh Humaid Al Muhairi. The Defendant to these proceedings is the National Bank of Abu Dhabi PJSC, a bank from which Mr Al Muhairi has arranged substantial loan facilities secured by a mortgage.
2. The application seeks interim mandatory injunctive relief the meat of which is directed at requiring the bank to reinstate the loan facility and release the balance of funds covered by the facility agreement, with the liberty to the claimant to utilise those funds for the purpose of the building project for which the facility was made available. There is also an application for prohibitory injunction whereby the defendant should be restrained from taking any steps to enforce its security rights pursuant to that facility.The matter has come on at short notice prompted by a “Legal Warning” served by the bank on 7 January 2016 imposing a 30 day warning of proposed steps to enforce the mortgage.
3. The dispute goes back predictably to a contract dated 2008 whereby the Claimant entered into a facility agreement with the Defendant for the provision of funding totalling AED 708 million. The funding was to be directed at construction of a building on plot 31 on the crescent of the Palm Jumeirah which was owned by Mr Al Muhairi. Originally the plan was to construct a 5 star hotel together with an apartment building, but the financial crisis soon intervened and in 2010 the development was revived but this time as a hotel only. On 28 February 2010 by way of a first amendment, the facility agreement was revived on the basis of a reduced commitment by the Defendant of AED 444 million.
4. In May 2010 the Claimant retained Intermass Engineering and Contracting Company (“Intermass”) as their contractor. At that stage the works were contemplated to be completed by May 2012 – that proved to be an ambitious date. The Facility Agreement was amended in September 2013 but between November 2013 and June 2014 the bank was not willing to allow a drawdown because of the slow progress that was being made with the construction.
5. In April 2014 the Claimant signed a Hotel Management Agreement with the Langham Hospitality Group. At about the same time, Messrs EC Harris were engaged as a monitoring surveyor to provide monthly reports to the parties, and in particular the Defendant, on both the potential total cost of the development and an assessment of the building programme leading up to completion.
6. During the first half of 2014 the parties negotiated the provision of additional funding and the Defendant permitted further funds to be available to the Claimant as of June 2014 payable under a revised Facility Agreement in due course dated 12 September 2014. This was in anticipation of what became the Amendment and Restatement Agreement dated 28 September 2014 which is the foundation of the present proceedings.
7. That agreement restated the facility in regard to AED 444 million as facility A and added to it a new facility, Facility B, in the amount of AED 225 million. It is in fact the amount of the facility B at which the application is directed in inviting the court to order the utilisation of the outstanding commitment to undertake further construction work.
8. The agreement is lengthy and detailed but I think I only need to refer to some of the provisions, albeit they will be referred to in something of a haphazard sequence. The main agreement which expressly relates to the facility agreement dated June 2008 as amended in February 2010 and on 12 September 2013, dates to which I have already referred, is a short substantive agreement to which various schedules are attached. The only provision which I need to refer to at this stage is contained in Clause 5.3 under the heading ‘amendment restatement and conditions subsequent’. Under the sub-heading “conditions subsequent” it reads:
“(a) The Borrower shall deliver each of the documents and other evidence listed in Schedule 2 (Conditions Subsequent) to the Lender (in form and substance satisfactory to the Lender) on or before the date set out next to each such document or evidence.
(b) If any document or other evidence referred to in paragraph (a) above is not delivered by the time limit required by paragraph (a) above, that non-delivery will constitute an Event of Default under the Amended and Restated Agreement and no grace period shall apply”
9. Schedule 2 contains the details of the relevant conditions subsequent. They are numbers 1, 2 and 4:
“1. A duly executed original of the Construction Contract Assignment.
2. A duly executed original of the Contractor’s Insurances Assignment.
4. A copy of the Construction Contract (as amended), duly executed by all parties thereto, certificate as true, complete and accurate by a duly authorised officer of the Borrower.”
10. The deadline of delivery in respect of all three of these documents was 30 September 2014. One of the major complaints raised by the Defendant is that there was no compliance with the conditions subsequent let alone before the deadline of 30 February 2014.
11. I should note in passing that Clause 10 of the Agreement contains the governing law and jurisdiction clause. The governing law is the law of Dubai together with the applicable federal laws of the United Arab Emirates. Interestingly and importantly the clause also contains an exclusive DIFC Courts jurisdiction clause in respect of any dispute “arising out of or in connection with this agreement, including a dispute regarding the existence, validity or termination of this agreement”. There is a submission to jurisdiction under sub-clause (c) and an acceptance that questions of convenience are not relevant under sub-clause (d). Sub-clause (e) provides that this exclusive jurisdiction clause is only for the benefit of the lender.
12. What has to be set importantly at the outset is that one of the major complaints raised by the Defendant is that there was no compliance with the conditions subsequent let alone before the deadline of 30 February 2014. The facility agreement as now amended which covered a total of some AED 669 million was attached as Schedule 3. That agreement was dated 4 June 2008 but refers to the amendments made up until 28 September as already indicated. In the interpretation provisions of the agreement, an event of default is defined as “any event or circumstance specified in clause 23”, which I will come to in a moment. It records that the Facility A is AED 444 million and the facility B agreement is AED 225 million.
13.Importantly, in the interpretation provisions of the agreement, an event of default is defined as “any event or circumstance specified in clause 23”, which I will come to in a moment. It records that the Facility A is AED 444 million and the facility B agreement is AED 225 million. Such is repeated at Clause 2, together with the reference to a facility C which doesn’t concern ourselves.
14. There was some dispute, if I may interpolate, as to whether the conditions subsequent, where relevant only to facility B or with respect to both facility A and facility B. The resolution of that issue to the extent that it needs to be determined is somewhat dependent upon the interpretation of Clause 5 of the agreement which sets out the manner in which drawdown is achieved, and in particular Clause 5.4 which provides:
“Apart from any deemed Utilisations pursuant to Clause 5B (Deemed Utilisations of Facility A and Facility B) below, if the conditions set out in this Agreement have been met, the Lender shall make Facility A and Facility B available to the Loan Disbursement Account through its Facility Office.”
15. AND It was the submission of the claimant that that demonstrated that the conditions subsequent bit on both tranches of the total loan.
16. I then turn to the clauses much later in the agreement, and in particular to Clause 22.5 which attracted considerable discussion and debate, namely the development completion provision to the effect that “the borrower shall procure that development completion occurs no later than 31 March 2015”.
17. The next clause I must refer to is the clause I referred to earlier on in the agreement, namely Clause 23 events of default. Each of the events or circumstances set out in Clause 23 is related to default, there are a number of them but the only one of purpose is 23.2 headed other obligations “the borrower does not comply with any of its other obligations under the finance documents and such non-compliance is capable of remedy and is not remedied within 15 business days of the borrower receiving notice of such failure from the lender requiring the same to be remedied”.
18. There was considerable discussion before me as to whether that provision applied and if so how to provisions such as the requirement to complete by March 31 2015 given that, on the face of it, it was not entirely clear how notice of an event of default could be accompanied by a requirement for remedial action within 15 days before such an event of default could be deemed to have occurred.
19. Clause 23.13 permits acceleration of the loan: “on or any time after the occurrence of an event of default the lender may, and shall if so directed by the lender, by notice to the borrower (a) cancel the available commitment whereupon it shall be immediately cancelled.”
20. Another clause which has been much debated is Clause 27.2 under the general heading Notices which required communications under or in connection with the finance documents to be made in writing, unless otherwise stated, by fax, letter or telex and then provided addresses for a representative of each party for any communication or document to be delivered under or in connection with any of the finance documents. As regards the bank, the relevant person was a Thomas Longo from the Corporate Banking Group in Abu Dhabi.
21. The jurisdiction clause was repeated word for word in Clause 34, which I have already read out.
22. There was a threshold series of issues raised by the Defendant on the question of jurisdiction. The first point taken was that there had been no proper service of the claim form or of the application for that matter. By that was meant that the claimant had failed to comply with the provisions of our rules which permit service out of the jurisdiction but only on the basis that the service is accomplished in accordance with the law and rules of the country where service is undertaken. The position of the Defendant was that as a matter of Abu Dhabi law, the appropriate method of service was first of all that any such document must be translated into Arabic and secondly that the service itself be accomplished by a registered or licenced process server.
23. This was not done, it is accepted, by the Claimant. What they did, and I won’t run through the full detail of it, is that they sent by letter and/or fax or email, I’m not quite sure which, a notification of the claim and the application to a firm of lawyers in Dubai who had offices elsewhere. This firm had from time to time been involved in the preparation of some of the agreements on behalf of the Defendant although it is not suggested that they had been authorised to accept service or had been even retained in respect of these particular proceedings. That material was faxed and/or emailed and/or sent to their offices in Dubai, in the DIFC and in Abu Dhabi. What was also done was to take advantage, it was thought appropriately, of the service requirements contained in the contract itself for notification to Mr Longo.
24. The Defendant’s position as I understood it was that whatever may have been meant by the provisions in the contract, it was not open to the parties to depart from the provisions of Abu Dhabi law as to the service of proceedings; that accordingly whatever may have been agreed between the parties, the use of Arabic language and a process server was compulsory. Secondly, it was said that even if that was wrong, the provisions of the contract did not include any provision with regard to the service of proceedings, it was solely concerned with notices under the contract.
25. I was not persuaded that the law of Abu Dhabi prohibited the parties from agreeing some other form of service which did not require the use of the English language and the use of a process server, let alone prohibit a contractual agreement to do so. It has to be borne in mind that of all the facilities and the entirety of the communication in this case were conducted in the English language. There was an exclusive DIFCC jurisdiction clause. There is something slightly unreal that in 2015 it is a requirement of Abu Dhabi law that the authors of contractual documents who negotiate in English, contract in English and submit to a court which engages only with the English language nonetheless cannot serve proceedings in English. I also am not persuaded that the use of employment of someone other than an official process server is prohibited in Abu Dhabi. There was no material to establish that the Abu Dhabi courts were devoid of discretion in this matter.
26. In any event, on its proper construction, I am of the view that the notice provision at Clause 27 of the agreement is broad enough to encompass the service of documents containing claim forms and notice of proceedings. The service of this material on Mr Thomas Longo was contractually legitimate – such seems to me to be a business like construction of this clause making provision for “Notice” within this agreement.
27. Even if I am wrong about that, I have no hesitation whatsoever as to waiving the specific requirements of our rules in relation to service. There cannot be any doubt at all that the Defendant fully understood the documentation, became fully aware of what was required and indeed responded with the nomination of solicitors to act for them very quickly. They have prepared a great deal of material for this hearing. They have helped the court enormously. In that respect they have been left in no doubt as to what was being alleged against them is unreal. This challenge to jurisdiction I dismiss.
28. The next jurisdictional point is the reliance upon the provisions of the UAR Civil Procedures Law that proceedings in rem in relation to real estate must be allocated to the courts of the place where that real estate is situated. This in my judgment is a hopeless point. There is no existing action in rem. To the contrary the application for an interim injunction is a classic example of the invocation of in personam jurisdiction. It is simply seeking relief to restrain a person from actually embarking upon in rem proceedings, and that does not itself become an in rem proceeding as a result.
29. The next submission in regard to jurisdiction is that to the extent that the Claimant wants to seek a stay of the enforcement proceedings, the appropriate route is not by an interim injunction but by making an application pursuant to the mortgage law. This is to be found in tab 4 of our bundle. This makes various provisions in respect of execution proceedings on mortgaged property. In particular it empowers the execution judge on the request of the debtor to postpone a sale by public auction for up to 60 days, albeit only once. Again, this seems to me to be irrelevant to the issues that are before me – we are not concerned here with execution; all we are concerned with is whether and in what circumstances this court should inhibit the defendant from invoking enforcement proceedings.
30. The next point on jurisdiction is that a mandatory injunction was not an injunction that could be granted in circumstances where there was no in personam jurisdiction over the Defendant. What was said was that since the Defendant was an Abu Dhabi company with its personnel, premises and property in Abu Dhabi, there is no basis upon which the DIFC courts could issue an injunction, let alone a mandatory injunction, and expect the same to be enforced in Abu Dhabi. In short it is said that the injunction should not be granted because it is unenforceable. This in my judgment is a complete misapprehension given the exclusive jurisdiction clause that we have in this agreement whereby the parties have agreed to accord exclusive jurisdiction to this court. As a result there is in fact in personam jurisdiction over the Defendant and there is nothing to inhibit the reliance by the Claimant upon provisions of Law 16 of 2004 to obtain an order in the form that is being sought in this case and then seek to execute that order in what I might call Dubai mainland under Article 7 of the law or indeed elsewhere in the emirate under the various agreements that have been reached between the courts.
31. Accordingly, I determine that this court has jurisdiction in respect of this application.
32. So I turn now to triable issue. As I say, two points were taken by the Defendant in March and April 2015 which they claimed justified calling in the loan and effectively terminating the distribution of the facility, and in particular not distributing any part of facility B. First was the failure to complete the building by March 2015, and secondly the failure to provide or comply with the conditions subsequent.
33. It is necessary in this respect to look at some of the documentation and I hope the parties will forgive me if I find myself from time to time rather lost as to where the documents are. The bundles I have to say from time to time give the impression that someone had thrown the documents down the stairs and then piled them all together at random.
34. In the run up to the execution of the new agreement and the imposition of the conditions subsequent, the parties had some information at least and I’m focusing at the moment on the completion date, as to whether that was viable or not. There is, it is fair to say, a rather mixed bag of evidence on this topic. The matters are brought to a head on 18 March 2015 when the Defendant wrote to Mr Al Muhairi to discuss the facility and in the course of the letter said this:
“As you know, NBAD has committed full support to DAS and the completion of the Development. Nevertheless, we have significant concerns over the lack of progress on sit following the restructuring of your facilities and entry into the Amended and Restated Facility Agreement. Our understanding is that the Development is currently at a standstill which we understand is likely to lead to a further Event of Default given the obligation in the Amended and Restated Facility Agreement to procure Development Completion by March 31st, 2014.
Based on the above, we urge you to comply with the terms of the Amended and Restated Facility Agreement. In particular, please review your obligations under Clause 21.4 and Clause 21.5 and ensure you are supplying NBAD with all requisite information and notifications.
We also request that you meet with us and all relevant parties in order that we put in place, on a consensual basis, a comprehensive plan to put the Development back on track.”
35. This was followed up shortly afterwards by a further letter dated 24 March asking to Mr al Muhairi to meet with them and the contractor making it plain that the Defendant reserved any right or remedy it may have now in connection with or arising out of any defaults. That is a letter dated 24 March.
36. This sequence ends with another letter dated 22 April which said:
“We note that as of the date of this letter you have not proposed any measures to put the Development back on track nor have you accepted our repeated requests to meet with NBAD and the Contractor. We further note that Das has now breached several terms of the Amended and Restate Facility Agreement.”
37. That reference to other breaches in the agreement was illuminated to some extent by letter dated 30 April which albeit not seen I think by Mr Al Muhairi for some time duly indeed arrived that very same day at his address in the Das Real Estate post box and again having introduced that as convention it went on “you have requested information on the defaults that currently exist under the amended…we highlight the following non-exhaustive examples…restated agreement.”
38. Accordingly, the parties were thereafter effectively at war.
39. What the Claimant says in relation first of all to the March 31 non completion date is that the bank had been aware for some considerable time that the prospects of completing by March 2015 were I suspect he would say unlikely. Indeed he contends that the evidence demonstrates or at least suggests that they were aware of the problem before the facility agreement was ever entered into, and there are some documents which have seen the light of day before me which do to some extent support that proposition. Again, I’m not sure I can really feel it appropriate to spend too much time reading them all but the first I think is the report of EC Harris dated in August 2015 to the bank in which paragraph 1.4 contains this annotation “it is our assessment…achievable.”
40. A similar sceptical view was expressed in Hill International Report dated August 2014 in slightly greater detail under the heading of schedule: considerations, the expectation of the author was to the effect that completion or handover would only be achieved by 1 July 2015, with completion in the following month.
41. For what it’s worth, at this interlocutory stage, I am disposed to accept that both parties were fully conscious that the completion date of March 2015 which they chose to put into the agreement was undeniably ambitious if not impossible, but it is not clear to me that that puts the Bank in the position that it can’t rely upon that failure to complete for the purposes of calling in the loan.
42. Two points are made as I understand it to challenge the bank’s position on that. The first relates to the fact that Article 23 of the agreement which deals with events of default is wholly inapposite to deal with the failure to complete by March or indeed any date, the reason being that the machinery in Article 23(2) contemplates that the event of default would be responsive to activity whereby compliance could be achieved and hopefully within a period of 15 days and that only thereafter would an event of fault be permitted to be declared. Again, it is not a matter to decide at this present moment unlike the jurisdiction issues but it seems to me strongly arguable that on a proper business like construction of this agreement, in the event that one has a failure to comply with an obligation other than non-payment or so on and which is not of the nature that can be remedied by further work or compliance, nonetheless an event of the default has occurred. Otherwise, it seems to me, that the failure to comply with the obligation to complete by March 2015 is devoid at least of any express contractual effect which would be surprising.
43. Secondly, it is said that even if that is right, by I suppose I hope I get the expression right stringing the Claimant along and not bringing down the shutters at a stage when they knew that 31 March was not achievable or even I suppose stringing the Claimant along by agreeing that that was a contractual completion date which was not achievable, the Defendant was not acting in good faith. I would be minded again, though this is not for me to decide finally, to regard that proposition as rather weak. It seems to me that the Defendant could have taken complaints about 31 March much earlier than they did but it doesn’t seem to me that that would have made the slightest difference. The claimant asserts that it was doing its best t complete the project, he was having difficulty with his contractor and the fact that the bank was on one view lackadaisical and on the other forgiving is not in my judgment indicative let alone strongly indicative of want of good faith. I will have to come back to the significance of the extent to which it matters, how strong the argument is on these points on one side or the other.
44. The complaint about the failure to comply with the conditions subsequent is slightly strange and I’m not convinced I got the full feel for it. The main document which the Defendant complains was not furnished in accordance with the schedule of conditions subsequent was the construction contract itself. As I understand it, there were a series of attempted amendments to the original construction contract most of which were never executed although one of them may have been in the possession of the Defendant at least as a matter of first impression. If there were further negotiations going on it would be difficult to complain if the Defendant was saying to the contractor and to the claimant ‘you must get on with completing these agreements before September 30 2014 otherwise you’re at risk or jeopardy of having the facility withdrawn’. The default in respect of the conditions subsequent if they were defaults did make sense in the context of the article dealing with it; this was a matter which could, if the parties were able to reach agreement, be dealt with. It seems to me again that the Defendant can legitimately complain that these conditions subsequent were not complied with; when I say legitimately, at least have a significant arguable case in that regard and again I am not persuaded that the decision to rely upon that was indicative of bad faith or at least so manifestly so as something which should be taken into account at this interlocutory stage.
45. I think that last point requires me just to remind ourselves what process we’re undertaking. Somewhat predictably, the most helpful exposition of the way in which a court should approach applications for mandatory injunctions, which is what we’re faced with here, namely an injunction to require the Defendant release more money, is to be found in a speech of Lord Hoffman, this time in National Commercial Bank Jamaica v Olint, and I will now save time by not reading solemnly aloud. the passage I have in mind is on page 1409 at paragraph 16 from just below letter b to the end of paragraph 19.
46. This emphasises the need for where there is an application for a mandatory injunction for the court to be reluctant to grant any such relief unless it is fully satisfied that the chances of the court being wrong about that are misplaced.
47. This is a jurisdiction which must be exercised with considerable caution and a jurisdiction which requires the court to be satisfied that as I see it the applicant for the relief has no much better of the argument at the interlocutory stage.
48. Taking that approach, at best it seems to me that the arguments of the triable issues are evenly balanced and the claimant falls quite a long way short of being in a position to satisfy the court that the claim that they make is a strong one.
50. But that leads it seems to me to the next point namely the question of whether damages are an adequate remedy. This is an unusual case by any standards not only is the Claimant seeking to require the bank to release a further AED 225 million, something in the region of GBP 60 million, but also are accepting that there is no realistic prospect of completing the project unless yet further funds are released from some unidentified source but certainly not the Claimant itself of yet a further GBP 30 million (USD 150 million). The claimant has not been able to indicate where such funds might be forthcoming; the highest he put it is to say that if the AED 225 million was released, that would make it easier for him to get the further money. I would accept that as a matter of common sense but I don’t accept that that demonstrates that either he or for that matter the Defendant are going to be better off as a result of the release of further funds.
51. The position as it seems to me is very unsatisfactory from the claimant’s point of view; he’s got a valuation of the property, that is to say that part of the Palm which has this construction project on it in the region of AED 600 million. He also has a valuation in the region of AED 1.2 billion in relation to a completed facility that is a long way from that, so what he wants to do is to impose upon the Defendant the risk of losing yet another GBP 70 million and impose upon himself the risk of not getting a further GBP 30 million and therefor being unable to complete the project, or obtaining another GBP 30 million then finding himself in financial difficulties and foreclosure taking place to reimburse the Defendant for the funds that they’ve already released which by then will total nearly AED 700 million and find himself once again in financial difficulties.
52. Now, the other side of this coin is this; that the Claimant is in the unhappy position that although he offers an undertaking in damages in relation to the interim injunction, he himself is not in a position to proffer money other than that which has been exceeded on the project this half completed project is probably going to be difficult to sell and therefore the value of the land is probably if anything less than it is with nothing built on it. Even if he manages to recover from what has been done and what the value of the land itself, he is again going to have no liquid funds to provide or meet the undertaking.
53. It seems to me that it is strongly arguable that the appropriate remedy for the claimant is a claim in damages. The Defendant is very well placed to meet that claim, it is a well-established valuable bank which could readily meet any liability that it may incur to the claimant but the contrary position is not correct. Of course, these points tend to alive into each other; the stronger the case or the weaker the case, the more valuable or less valuable the claim in damages is, the more the balance of convenience which I come to now favours one side over the other or both sides, the more it is appropriate to stand back and take an overall view as to what the right and just result is.
54. All the points that I have made seem to me to at best leave the parties in a position of mutual difficulty. In fact, I prefer the view for what it’s worth the position of the Defendant, but that doesn’t really help the Claimant very much. When one is faced with an application for a mandatory injunction, the court must seek a high degree of assurance that the plaintiff is going to be able to trial because if he cannot there is a very enhanced risk of injustice, so taking a broad view of this case i am not persuaded that it is appropriate to grant a mandatory injunction.
55. There is a secondary application for a prohibitive injunction to restrain the Defendant from enforcing its mortgage rights. I’m not persuaded that that is appropriate to undertake – it seems to me that the position is that the Defendant will embark upon a very long process in order to enforce its mortgage in the meantime the claimant is in a position to seek to sell property if so advised or find alternative finance and replace the Defendant or enter into further negotiations. So far as the applications under Law No. 16 are concerned, these are not urgent, they can be overcome by further discussion, negotiation or further input of funds so I’m not minded to grant a prohibitive injunction either.
56. So for all these reasons, and I have no doubt there are many other points that I could add, I refuse this application.
Date of Issue: 4 February 2016
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