October 15, 2020 COURT OF APPEAL - JUDGMENTS
Claim No: CA 001/2020 THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS In the name of His Highness Sheikh Mohammad Bin Rashid Al Maktoum, Ruler of Dubai IN THE COURT OF APPEALBEFORE CHIEF JUSTICE ZAKI AZMI, JUSTICE ROGER GILES AND H.E. JUSTICE ALI AL MADHANI BETWEEN VEGIE BAR LLC, A DULY INCORPORATED COMPANY,REGISTERED IN THE DIFC, REGD
Claim No: CA 001/2020
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
In the name of His Highness Sheikh Mohammad Bin Rashid Al Maktoum, Ruler of Dubai
VEGIE BAR LLC, A DULY INCORPORATED COMPANY,
REGISTERED IN THE DIFC, REGD NO 0907.
EMIRATES NATIONAL BANK OF DUBAI PROPERTIES PJSC
|Hearing :||8 September 2020|
|Counsel :||Mr Roger Bowden instructed by Banks Legal Consultancy FZE for the Appellant
Mr Tom Montagu-Smith QC instructed by Taylor Wessing LLP for the Respondent
|Judgment :||15 October 2020|
UPON the Order of H.E. Justice Omar Al Muhairi dated 4 September 2019 (the “Order”)
AND UPON the Appellant’s application dated 30 October 2019 seeking permission to appeal the Order
AND UPON the Order of H.E. Justice Omar Al Muhairi dated 31 December 2019 granting permission to appeal the Order
AND UPON hearing the Counsel for the Appellant and Counsel for the Respondent on 8 September 2020 at the hearing of the appeal held by way of teleconference
AND UPON reading the submissions and evidence filed and recorded in the Court file
IT IS HEREBY ORDERED AND DIRECTED THAT:
On the application to restore Vegie Bar LLC (“VB”) to the Register:
1. VB is restored to the Public Register.
2. Naki Alkalajleh is directed to:
(a) deliver a copy of these orders to the Registrar of Companies within 14 days; and
(b) forthwith inform the Court of such delivery by letter to the Registry.
3. Reserve liberty to Emirates National Bank of Dubai Properties PJSC (“Emirates”) to apply for an order in relation to the costs of the application and the appeal.
On the appeal:
1. The appeal is dismissed.
2. Subject to order 3, VB is ordered pay the costs of Emirates, to be assessed by a Registrar if not agreed.
3. Emirates has liberty to apply for a different or additional order in relation to costs within 14 days.
Date of issue: 15 October 2020
CHIEF JUSTICE ZAKI AZMI
1. I have had the benefit of reading in draft the judgment of my brother Justice Roger Giles, now finalised below, and I agree fully with his reasoning and conclusion. Permit me to say an additional few words. I adopt the abbreviations of Giles J in his judgment, as below.
2. It must be borne in mind that real property within the DIFC is registered according to the Torrens title system, a system which originates from Australia (and is followed in Malaysia, amongst other countries) and which my learned colleague Giles J will be most familiar with. Under the Torrens title system, all rights and interests in real property must be registered and, if not registered, will be incapable of defeating a registered owner’s interests. The registered owner has an indefeasible title and, where none of the exceptions in Article 30(3) of the RP Law apply, any person claiming unregistered rights or interests will not be able to enjoy them. The Register is conclusive.
3. UP and VB executed the lease of the Units on 5 April 2011 for a period of 10 years commencing on 1 June 2011. VB claimed that the lease between it and UP and its rights thereunder continued against VB’s successor in title, Emirates, notwithstanding that the Units were, after being transferred by UP to Emirates, transferred again thereafter from Emirates to Zain.
4. It was on 11 January 2012 that UP and Emirates executed individual SPAs for the sale of the Units. Soon thereafter, UP wrote to VB recording that the commencement date of the Lease had to be adjusted and such commencement date would depend on the date of occupancy of the Limestone House which contained the Units. The plot comprising Limestone House was transferred to UP on 25 August 2013.
5. The same Units were, by an SPA dated 6 March 2016, agreed to be sold by Emirates to Zain and, on 31 March 2016, the freehold was transferred to Zain. Of course, Zain, like UP, is not a party to these proceedings.
6. The strata plan was registered on 16 January 2014, and transfers could not be registered before it had been.
7. Without going into much detail, VB argued that the spreadsheet of the Registrar should be read as equivalent to the folios. To my mind, this cannot be so for the reasons that Giles J has given. As such, during the whole relevant period within which the Units were transferred, from one entity to another, the disputed Lease was not on the Register; they were not on the Register from the time the Units were transferred to Emirates on 20 March 2012 and neither at the time of the transfer to Zain on 31 March 2016.
8. Now going back to the law of Torrens title system, as I said earlier, a claimant with respect to any right or interest within the system may only be successful if that right or interest has been registered on the Register prior to any other party claiming the same right or at least if they have filed for the registration of their interest before any other party makes a claim to it. Of course these rights are subject to a few exceptions mentioned in Article 30 of the RP Law, but in this appeal before us, as Giles J has pointed out, they do not arise. It was not, therefore, possible for any right or interest that VB allegedly had to be capable of defeating Emirate’s title to the Units.
9. The other issue of course is the question of whether VB was properly registered as a company. Justice Giles has discussed this at length under the heading VB’s Status and he concluded that by Article 33 (2) of the Operating Law, the effect of the Order is that VB is deemed to have continued in existence as if it has not been dissolved or struck off the Public Register. To this I also agree except to express that what was stated in the judgment should not be read as imposing any duty on the ROC to make an intervention. If any step should have been taken, it was for the parties to take it.
10. In respect of the other issues discussed and decided in my learned colleague’s judgment, I, again, agree, and have nothing to add.
JUSTICE ROGER GILES
11. VB claimed that it had a lease of Units R17A and R17B (the “Units“) in Limestone House in the DIFC. In proceedings commenced by a Claim Form issued on 3 March 2016 against Emirates, it claimed specific performance by, in substance, an order for possession of the Units, and damages for loss suffered through refusal of possession.
12. After interlocutory excursions between the parties, by an Application Notice issued on 21 November 2018 VB applied:
(a) for permission to amend the particulars of claim against Emirates;
(b) to join Zain Capital LLC (“Zain”), which had purchased the Units from Emirates;
(c) for immediate judgment against Emirates on the claims in the existing particulars of claim (the “PC”), alternatively on the first three causes of action in the proposed amended particulars of claim (the “PPC”);
(d) a Document Production Order against Emirates; and
(e) a Document Production Order against Zain.
13. By an application notice issued on 14 February 2019, Emirates applied for immediate judgment against VB.
14. By a further application notice issued on 27 May 2019, VB applied for a witness summons against a Ms Melanie Fernandes, a former employee of Emirates.
15. All applications were heard by the Deputy Chief Justice (the “Judge“) on 28 and 29 May 2019. His Excellency gave judgment on 4 September 2019 (the “Judgment“), dismissing all VB’s applications and granting Emirates’ application for immediate judgment.
16. VB appealed from the Judge’s orders. All matters were said to be appealed. Emirates cross- appealed to uphold the order for immediate judgment for a reason not dealt with in the Judgment.
17. For the reasons which follow, VB has no real prospect of establishing that it had or has a lease binding upon Emirates or Zain; and in any event, the lease claimed by it is clearly void for uncertainty. The PPC have no real prospect of success. The appeal should be dismissed.
18. On 29 September 2016 the Registrar of Companies (the “ROC”) gave notice that, because it was not carrying on business or otherwise in operation in the DIFC, VB would be struck off the Register after three months unless grounds to the contrary were provided. By Article 128 (6) of the then Companies Law, DIFC Law No 2 of 2009, upon striking off a company was dissolved.
19. VB wrote providing grounds why it should not be struck off, by inference being the existence of the proceedings. In unclear circumstances, it was nonetheless struck off the Register. However, in an apparent late response the ROC on 22 January 2017 advised that VB’s status would be changed from “Inactive – Struck Off” to “not renewed” until final judgment in the proceedings, when its status would be reconsidered.
20. Shortly before the hearing of the applications, it was found that VB’s status was still “Inactive – Struck Off”. By an Application Notice issued in the proceedings on 28 May 2019, VB applied for an order pursuant to Article 33 of the Operating Law, DIFC Law No 7 of 2018, that it be restored to the Register in accordance with the ROC’s advice. The application was incompetent, as VB was not one of the persons entitled to make it (and did not exist), and it had not been served on the ROC. The Judge declined to deal with it.
21. The Application Notice was thereafter amended to name Mr Naki Alkalejleh, a former officer and shareholder of VB (the “officer”) as the applicant, and notice of it was given to the ROC in June 2019. But the application was not brought forward for determination by a single judge prior to the hearing of the appeal; rather, it was left and raised as a matter in the appeal.
22. The unfortunate result is that for a period or periods VB’s lawyers prosecuted a claim on behalf of a non-existent company; that the Judge gave judgment and ordered costs against a non-existent company; and that when the appeal was heard, the appellant still did not exist. This should not have occurred. The difficulty encountered by VB’s lawyers when it was found that VB was still struck off can be recognised, but should have been resolved by a prompt Part 7 Claim Form in which the officer was the claimant, served on the ROC and promptly brought before a single judge.
23. When the ROC proposed to restore VB to the Register, and it appears that administrative error has intervened, there should nonetheless be restoration so that VB can prosecute its claim. As Mr Montagu-Smith QC, appearing for Emirates, pointed out, ordinarily the applicant for restoration would need to show that the company’s proceedings had prospects of success, but I do not accept his suggestion that the appeal should first be determined and, if it fails, restoration should be denied; the proceedings were brought before the striking off and have been prosecuted against the background of the ROC’s advice that it would remain on the Register. The ROC has not appeared to oppose the application, and the procedural irregularity of an application in the appeal proceedings should be excused in the exercise of the Court’s case management powers. However, since there may be costs consequences in what has occurred, I accept Mr Montagu-Smith’s submission that the question of the burden of the costs of the application and appeal falling on the officer should be reserved.
24. By Article 33 (2) of the Operating Law, the effect of the order is that VB “is deemed to have continued in existence as if it had not been dissolved or struck off the Public Register”. Since by Article 33 (6) the restoration takes effect upon a copy of the order being delivered to the ROC, it should be directed that it be delivered and that the Court be informed that it has been delivered.
The leasing and transfer of the units
25. The developer of Limestone House was Union Properties PJSC (“UP”). In conjunction with an adjoining property, a strata plan was being prepared for the division of the properties into lots and common property.
26. On 5 April 2011, UP and VB executed a lease of the Units, then designated LP5 and LP6 and being lots in the as yet unregistered strata plan, for a term of 10 years commencing on 1 June 2011.
27. UP agreed to sell to Emirates all its units in Limestone House. Individual SPAs dated 11 January 2012 were executed for the Units, at some point re-designated R17A and R17B. VB submitted, and Emirates denied, that there was an umbrella agreement for the sale of all UP’s units.
28. On 15 March 2012, UP wrote to VB recording agreement that, inter alia, the commencement date of the lease of the Units was “adjusted and revised towards a new date once the progress of the occupancy [of Limestone House] is achieved“. VB alleged that UP was acting as agent of Emirates, and the lease as so varied (the “Lease”) is the lease claimed by it in the PC and the PPC.
29. On 29 March 2012, the freehold of the Units was transferred by UP to Emirates.
30. The strata plan was registered on 16 January 2014.
31. By an SPA dated 6 March 2016, Emirates agreed to sell the Units to Zain. The freehold of the Units was transferred by Emirates to Zain on 31 March 2016.
32. As will appear, regard must be had to the registration of instruments under the DIFC’s Torrens Title system of land registration. VB’s submissions equated the dates of the transfers from UP to Emirates and from Emirates to Zain, as alleged by it, with registration of transfers. Some explanation is appropriate.
33. The dates appear in searches of the Real Property Register for the Units. The Register records the SPAs with the ascriptions “dt. 11.01.2012, Reg. dt. 29.03.2012” and “ dt. 06.03.2016, Reg. dt. 31.03.2016”. However, it appears from a letter from the Registrar of Real Property (the “RORP”) in evidence that due to a dispute between UP and the master developer for the DIFC, the plot comprising or containing Limestone House was not transferred to UP until 25 August 2013, and that folios for the Units could not be created before the strata plan was registered on 16 January 2014. Thus, the transfer dates alleged by VB are not the dates on which registration of the transfers of the Units occurred, but the dates as at which the transfers were registered.
34. The Lease was not on the Register at the time of the transfer to Emirates on 29 March 2012. VB submitted, but Emirates disputed, that it was registered on 28 May 2012. It was not on the Register at the time of the transfer to Zain on 31 March 2016 and is not now on the Register.
Title by registration
35. In 2007 a Torrens Title system was introduced for real property within the jurisdiction of the DIFC. The Real Property Law, DIFC Law No 4 of 2007, as amended by Law No 4 of 2012 (the “RP Law”), has since been replaced by Law No 10 of 2018, but the events in these proceedings are governed by the prior Law.
36. The essentials of the RP Law, so far as necessary for these proceedings, may be summarised as follows.
37. The central feature is that the registered owner has an indefeasible title: save for prescribed exceptions, the registered owner’s interest is not subject to, and cannot be defeated by, a prior unregistered interest. As described in Breskvar v Wall (1971) 126 CLR 367 at 385, a decision in a jurisdiction in which the Torrens Title system has its origins, it is “not a system of registration of title but a system of title by registration”.
38. Subject to some exceptions, the creation or transfer of an interest in real property must be embodied in an instrument (Article 18), which is given a distinguishing reference and recorded in the folio for the lot or lots concerned (Article 20). Instruments must be registered in the order in which they are lodged for registration and have priority according to when they are registered not when they were executed (Articles 22, 23). The Register is conclusive as to registration, when the instrument was registered, and the contents of the instrument (Article 24). It is the instrument which, on registration, creates or transfers the interest and vests it in the identified person (Articles 26, 27).
39. Indefeasibility begins with Article 29, providing that subject to other provisions of the RP Law the registration of a person as owner of an interest in real property is conclusive evidence that the person is the owner of the interest and that the person’s title to the interest is indefeasible. The central feature, and its exceptions, are then detailed in Articles 30 and 31: so far as relevant to these proceedings –
“30. Quality of registered instruments
(1) Subject to this Law, a registered owner holds the registered interest subject to all prior interests registered or recorded in the folio of the Register for the relevant lot but free from all other interests.
(2) In particular, the registered owner:
(a) is not affected by actual or constructive notice of any trust or unregistered interest affecting the lot;
(b) is not affected by any interest that, but for this Law might be held to be paramount or have priority;
(c) is not affected by any error or informality in any application or proceedings;
(d) is not liable to proceedings for possession unless the proceedings are brought by a person claiming a registered interest in the lot.
(3) However, paragraphs (1) and (2) do not apply:
(a) to an interest or matter mentioned in Article 31; or
(b) if there has been fraud by the registered owner in acquiring or holding the interest;
(4) For the purposes of this Article, knowledge that a trust or unregistered interest is in existence is not of itself to be regarded as fraud.
31.Exceptions to Article 30
A registered owner does not obtain the benefit of Article 30 in relation to the following Interests or rights affecting the lot
(h) an equitable obligation binding the registered owner as a result of the registered owner’s conduct;
(i) subject to Article 54, the interest of a lessee in actual possession under a lease for a term (including any option to renew, whether or not exercised) not exceeding one year;
The Framework for the Claim to the Lease
40. Emirates is no longer registered as owner of the Units, and the PPC accordingly claimed a declaration that VB had had a valid lease of the Units and an order for an inquiry into damages.
41. The Lease being a lease for 10 years, Emirates as registered owner of the Units held its interest free from the Lease unless:
(a) the Lease was registered or recorded in the folios for the Units prior to Emirates becoming registered owner;
(b) there had been fraud by Emirates in acquiring or holding its interest; or
(c) the Lease bound Emirates as an equitable obligation as a result of Emirates’ conduct.
42. In the PPC, VB claimed against Zain a declaration that it had a valid lease of the Units and orders in relation to its term and enforcement. In similar manner, Zain as registered owner of the Units holds its interest free from the Lease unless one of the same matters is established.
43. In addressing these matters, Emirates and Zain are not affected by actual or constructive knowledge of an unregistered lease. Thus, in determining any question of fraud, knowledge that the Lease existed does not of itself establish fraud.
The Assignment Submission
44. VB’s particulars of claim and the submissions of Mr Roger Bowden, appearing for VB, did not well address the importance of title by registration to its causes of action. It is convenient at this point to go to Mr Bowden’s core submission that the Lease was assigned by UP to Emirates. There is no reference to assignment in the PC, but the PPC alleged that Emirates “purchased the assignment of the lease of the Units“, and that was extensively asserted in the written submissions and at least initially in oral submissions. The submission, as put, was of assignment as itself bringing about the Lease with Emirates, without regard to having a registered lease at the time of transfer, or to fraud or an equitable obligation.
45. VB submitted that there must have been an umbrella agreement for the sale of all UP’s units in Limestone House, which it said “would have assigned the lease “. It referred to a 2013 agreement which it said showed what the postulated agreement would have said, providing that “the Seller agrees to assign, sell, transfer, convey and dispose to the Buyer all of the Seller’s rights, title and interests to the Properties”, and it said that the postulated umbrella agreement and other evidence showed that Emirates “purchased the assignment of the lease”. In oral submissions it was also said that the words in the SPAs “all risk in and benefit in the property shall pass to the purchaser” transferred the burden of the lease.
46. The evidence is overwhelming that there was not an umbrella agreement in relation to the sale of the Units. Even if there had been, in the agreement to which VB referred it was provided that the terms of the individual SPAs took precedence over its terms. And again even if there had been, and it had provided as in the terms set out above, the words were not a purported assignment of the lease; nor were the words in the SPAs.
47. Nor in any other terms could Emirates have purchased an assignment of the lease or could there have been an assignment of the lease from UP to Emirates. As an interest in land, a lease is capable of sale and transfer by the lessee to a third party; but the lease was not UP’s interest and what it sold and transferred was the freehold. Unless there was novation by tripartite agreement between UP, VB and Emirates, VB’s rights against Emirates depended on transfer of the freehold subject to the lease as a prior registered interest, or in circumstances of fraud or an equitable obligation, in accordance with the RP Law.
48. The assignment submission was misconceived. It is not clear how it came into the causes of action described later in these reasons, but it cannot play any part in them. It is also not clear that, when the matter arose in the course of submissions, VB sought to submit that there had been novation, but it was not pleaded.
49. The PC are a relatively concise 11 paragraphs. The PPC are a diffuse 57 paragraphs followed by six statements of “cause of action“, each repeating the 57 paragraphs and adding further paragraphs to provide the cause of action and the relief claimed. The PPC in the appeal papers were further amended from those before the Judge. This should not have happened: an appeal is concerned with the decision below on the materials before the judge. Emirates took the point, but in the interests of finality I proceed on the PPC in the appeal papers.
50. The first five causes of action are against Emirates. All end with a claim for a declaration that VB had (meaning past tense) a valid lease of the Units with Emirates, and a claim for an enquiry into damages for (in order of the causes of action) (1) breach of the Lease by denying possession; (2) the same, as an “equitable claim” in the alternative to the first cause of action; (3) breach of the Lease by repudiation; (4) breach of the Lease by “committing equitable fraud“; and (5) breach of the Lease by “committing a fraud against the Registrar of Real Property“.
51. The sixth cause of action is against Zain. It ends with a claim that VB has a valid lease of the Units with Zain, and claims to orders amending the term to a term of ten years from the date of judgment or a date determined by the Court and that the Units be made available for that term.
The Amendment Application
52. The Judge dismissed the application because the amendments were not “minor changes“ but “major re-writing“; for “lack of clarity“; and because he considered VB’s case “inherently implausible and… lacking in terms of prospects of success“.
53. With respect, amendments are not confined to minor changes, although discretionary and other considerations (for example, a limitation period) can come into play if there are significant amendments. However, amendments should not be permitted if they have no real prospect of success, and as is now explained the Judge’s view in that respect was correct for the PPC before him.
The Causes of Action Against Emirates
54. The Judge directed himself by the question appropriate for immediate judgment, whether VB had no real prospect of success or Emirates had no real prospect of defending VB’s claims. It was not suggested on appeal that he erred in his approach, and the same approach was implicitly taken by the parties before us. His Excellency regarded VB’s prospects of success as fanciful, considering it highly improbable that it could establish that the Lease was binding on Emirates and considering that in any event it would have been void for uncertainty or illegality. In the manner the matter was argued on appeal, I will not go to any detail of the Judgment but will address the PPC afresh.
55. Central to the causes of action is whether Emirates held the Units free of any lease to VB. I put aside for the present the issues of uncertainty and illegality, and assume that, if Emirates held the Units subject to it, the Lease was a valid lease. VB’s submissions paid little regard to its pleaded causes of action and ranged into evidence which often had no apparent relationship with the pleading; but as Emirates correctly submitted, the pleadings must govern the question.
(a) Prior Registration of the Lease
56. In submissions, VB sought at some length to show that the Lease had been registered on 28 May 2012. It does not matter whether or not what happened was registration of the Lease. Assuming that it was, it was after the transfer of the freehold to Emirates on 29 March 2012, as alleged by VB, and after the date recorded in the Register as the date of registration of the transfer of ownership of the Units. Although VB did not so submit, if it be asked whether the date of transfer of the freehold was more correctly after the registration of the strata plan on 16 January 2014, the Lease also could not have been registered until after 16 January 2014, and had it been then registered (which it was not) its registration must, by force of Article 31 (1) of the RP Law, been secondary to that of the transfer of the freehold. On any view, the freehold was not transferred subject to the Lease as a prior registered interest.
(b) The First Cause of Action
57. In the PC, VB’s basis for the Lease as against Emirates was that the sale by UP “was expressly subject to, and made with notice of, the leasehold interest of the Claimant…“. The same was repeated for the first cause of action in the PPC.
58. This cannot establish the Lease as binding on Emirates. Under the Torrens Title system in the RP Law, notice of the Lease is insufficient for the fraud exception, or otherwise for Emirates to be bound by the Lease. The assertion of “subject to… the leasehold interest of the Claimant“ goes nowhere in a system of title by registration, and in any event as between UP and Emirates the sale of the Units was not subject to the Lease. The SPAs provided that Emirates took “possession and occupation“ of the Units and, save for stated encumbrances and the terms of the strata management statement, purchased them “otherwise free from any encumbrances”. Further, as submitted by Emirates, Emirates undertook as purchaser obligations inconsistent with permitting VB to use the Units for the only use permitted under the Lease. It follows that VB did not have a right to possession as against Emirates and could not be entitled to damages for denial of possession.
(c) The Second Cause of Action
59. The second cause of action repeated that the sale by UP was expressly subject to and made with notice of VB’s leasehold interest, adding that Emirates held the Lease on the same terms as if it had been registered under the RP Law. Apparently as the basis for the addition, it was then alleged-
“The equitable obligation arises by operation of equitable estoppel, the doctrine of anticipation and the rule in Walsh v Lonsdale which apply irrespective of any registration pursuant to Article 31 (h) of the DIFC Law of Real Property.”
60. This is the assertion of an equitable obligation as the Article 31 (h) exception to indefeasibility; in fact not properly regarded as an exception, because indefeasibility is a matter of title and the equitable obligation is an in personam right. From the pleading, the equitable obligation is founded on the sale by UP being said to be subject to and made with notice of the Lease.
61. That cannot give rise to an equitable obligation. The appeal to Walsh v Lonsdale and its sometimes rubric of the doctrine of anticipation requires an agreement to do something, and makes no sense. Notice in Emirates of the Lease could not found an estoppel, and if taking subject to the Lease means anything more than notice of it, as noted above Emirates did not take subject to the Lease. If one looks beyond the pleaded cause of action, nowhere in the 57 paragraphs are the representation and reliance necessary for an estoppel pleaded, as to sale subject to and with notice of VB’s leasehold interest or anything else. The cause of action cannot establish the Lease as binding on Emirates, and again VB did not have a right to possession as against Emirates and could not be entitled to damages for denial of possession.
(d) The Third Cause of Action
62. No basis for the Lease being binding on Emirates was asserted: the third cause of action went straight to an allegation of repudiation. It must be taken that the basis was one or other of the bases in the first and second causes of action. For the reasons given, that the Lease was binding on Emirates cannot be established, and there was no Lease for it to repudiate.
(e) The Fourth Cause of Action
63. The substance of the fourth cause of action was that Emirates transferred the freehold in the Units to Zain “without transferring the burden of [the Lease]”, knowing that VB had a claim against it; knew that VB’s rights to enforce the Lease against Zain would be likely to be affected; concealed the transaction from VB; and “given the relationship between the parties as landlord and tenant” thereby acted unconscionably, dishonestly or recklessly. After the claim to a declaration that VB had a valid lease with Emirates, a declaration was claimed that Emirates “has Breached the Terms of [the Lease] by committing an equitable fraud”, plus claims to orders concerning damages.
64. Mr Bowden’s explanation of the cause of action was difficult to follow, eventually citing Vitacea Company Ltd v The Winning Combination Inc 2016 MBQB 180 (“Vitacea”) as the authority on which he relied. That is a damages case, in which the Court declined to strike out a claim alleging that the defendant sold to a third party intellectual property belonging to the plaintiff, falsely representing that the property was its own. The conduct alleged against Emirates could not be a breach of the Lease, as asserted, and that must be an error in the expression of the damages claim; even if it could, there is no cause of action unless the Lease binding on Emirates is first established. Without going further into the existence and requirements of a claim to damages for equitable fraud, Vitacea does not apply unless the Units were in fact held by Emirates subject to the Lease. Absent the Lease binding on Emirates, there is no basis for it having acted in a manner attracting relief.
(f) The Fifth Cause of Action
65. The fifth cause of action had not been in the PPC before the Judge. The substance of the cause of action was that the Lease was registered on 28 May 2012; that it was thereafter removed from the Register because Emirates advised the RORP that the Units were not subject to a lease; and that that advice was fraudulent because Emirates knew that VB held a lease of the Units. The relief claimed, apart from the usual declaration that VB had a valid lease of the Units with Emirates, was a declaration that Emirates “had Breached the Terms of [the Lease] by committing a fraud against the Registrar of Real Property” and claims to damages. As with the fourth cause of action, the conduct alleged against Emirates could not be a breach of the Lease, as asserted, and this should be understood as a claim to damages because, through Emirates’ fraud, VB did not have a Lease binding on Emirates when it should have, incorrectly expressed as a breach of the Lease.
66. On the present state of the evidence, what happened can be summarised as follows. In May 2012 Emirates signed a lease registration form, which was also signed by VB and submitted by VB to the RORP, with particulars of a lease for 10 years from 1 June 2011. In the absence of folios for the Units, the RORP recorded lots and interests in lots on a spreadsheet pending the registration of the strata plan and creation of folios. Before the strata plan was lodged for registration, according to the RORP, communications from Emirates dating back to December 2012 had said that the Units were not subject to a lease, “thereby superseding the details of “ the registration form: hence when the folios came into existence, the Registrar did not record the Units as subject to a lease. But, on VB’s case, in its internal records at the time Emirates noted a lease in favour of VB, and for that and other reasons (it said) what Emirates told the RORP was fraudulent.
67. VB submitted that the spreadsheet record was registration of its lease. The RORP did not so regard it: he considered it a means of keeping a record which could be used to inform the ROC, as was necessary for the latter’s licensing functions. That may not be critical; the Register is conclusive that the Lease is not registered. What matters is what the RORP did about the spreadsheet record; if the RORP was misled into not doing something when, if he had done it, VB would have had a prior registered lease, then VB could have suffered a loss. That, however, is the flaw in the cause of action. As earlier noted, if the Lease was registered by recording on the spreadsheet or if it had been registered following creation of the folios, its registration must have been secondary to the registration of the transfer of the freehold. Assuming all else in VB’s favour, it did not lose a prior registered lease: the flaw in the cause of action is fatal.
68. None of these causes of action has a real prospect of success. I have considered whether, given the rather unsatisfactory way in which they are framed, this can be seen with sufficient certainty for immediate judgment, and whether further factual investigation might be warranted with the possibility of a different complexion emerging. That is a particular consideration when there was a considerable amount of evidence to which VB referred, potentially calling for greater analysis and assessment than ordinarily appropriate in an application for immediate judgment. However, it is necessary to address the causes of action as pleaded, the proper evidentiary scope is confined, and the essentials of VB’s case can be considered. In my view, the essentials are lacking.
The Uncertainty Defence
69. I have earlier referred to the letter of 15 March 2012 from UP to VB, recording agreement on adjustment and revision of the lease commencement date. More fully, the letter relevantly said –
“1. Vegie Bar interior fit-out to be postponed again until progress and development is achieved with the commercial spaces available in Limestone Building.
2. All cheques issued by Vegie Bar in favour of Union Properties PJSC are to be put on hold and replaced when the process of leasing the rest of the commercial units is achieved.
3. Lease Commencement Date and Rent Commencement Date to be adjusted and revised towards a new date once the progress of the occupancy is achieved; however, all other terms and conditions of the agreement remains [sic] the same.”
70. VB alleged this agreement in the PPC, as to commencement in the terms that the commencement date “was to be adjusted and revised towards a new date once the progress of occupancy of the commercial units in Limestone House was achieved“. The lease it sought to have recognised and enforced was the lease as varied, in these reasons the Lease; that is, a lease with a commencement date other than 1 June 2011 – to the extent that the relief claimed against Zain included that the Court should fix a future commencement date.
71. It is not easy to see how VB suffered loss from denial of possession or repudiation, during Emirates’ ownership of the freehold, when the lease had not commenced. But the problem lies deeper. Emirates submitted before the Judge that even if the Lease would otherwise have bound it, the Lease was invalid for uncertainty. The Judge held that it would be “unenforceable because it did not state the timeframe (here [Emirates] cites Blue v Ashley  EWHC 1128 (Comm) at ) nor a date”.
72. Blue v Ashley concerned whether in a conversation in the Horse and Groom a contract had been made that if the plaintiff caused the share price in a company to reach £8, the defendant would pay him £15 million. It was held that no binding contract had been made, amongst other reasons because what had been said was so vague and incomplete that no contract was intended. In discussion, Leggatt J observed that even if a formal contract in like terms indicated that a contract was intended, it would nonetheless not have been validly made because it lacked the essential term of the period within which the plaintiff had to get the share price to £8.
73. His Lordship’s observation illustrates, in a different context from the present, the requirement of certainty. To that requirement is added, in the case of a lease, that it is an interest in land and must have a commencement date for the property right to come into being. It is trite that a lease must have a stated or ascertainable commencement date.
74. The Lease does not. The commencement date is doubly uncertain. It is to be adjusted and revised “once the progress of the occupancy [of Limestone House] is achieved“, but there is no measure of the extent of progress. And even if some occasion of sufficient progress were ascertainable, that occasion is not the commencement date; it is when there is to be adjustment and revision, with no measure of how the new commencement date is to be adjusted or revised or in any way arrived at. There is no objective standard, not even the concept of a reasonable time, to resolve the uncertainty. The Court does not fix the date for the parties.
75. In the appeal grounds, VB baldly asserted that the extension of the lease and rent commencement date did not invalidate the Lease. Its submissions did not provide meaningful support for that position. It dismissed Blue v Ashley as a humorous case of a pub conversation. It said that there was “better authority for uncertainty created by collateral terms in leases“, referring to Siew Soon Wah v Yong Tong Hong [ 1973 ] 1 MLJ 133, a decision of the Privy Council which is not in point. It described the agreement as an agreement to put the lease on hold, which did not answer the difficulty. It said that it relied on its skeleton argument before the Judge, in which it had said that the agreement was not intended to affect the enforceability of the lease, but only its performance; that there had only been a deferral of the commencement date, intended to be for a short period; that if the agreement created a condition affecting the validity of the lease, it had been waived by VB or alternatively Emirates could not take advantage of it by failing to lease the surrounding premises; that the lease had subsequently been affirmed by Emirates; and that the “condition” could be severed. It is hard to take these submissions seriously. None answers the clear uncertainty or its consequences.
76. Emirates’ submission should be accepted. Remembering that the application before the Judge was for immediate judgment, it cannot reasonably be argued to the contrary. Even if VB had a real prospect of establishing that Emirates held the Units subject to the Lease, all the causes of action require that the Lease be valid and enforceable, and for this independent reason the order for immediate judgment should be upheld.
The Illegality Defence
77. Emirates also submitted before the Judge that even if the Lease would otherwise have bound it, the Lease was unenforceable for illegality. The Judge accepted the submission. It being unnecessary to do so, I do not enter into the rather vexed area of statutory and common law illegality in the context of immediate judgment.
The Result as Between VB And Emirates
78. Permission to amend the particulars of claim should be refused, since the PPC are not viable. It was pointless for VB to apply for immediate judgment on the claim in the PC, since it was predicated upon Emirates as current registered owner. Transposed to the first cause of action in the PPC, VB should not have immediate judgment against Emirates on that cause of action, or on the second or third cause of action. The order for immediate judgment in favour of Emirates should be upheld.
The Application to Join Zain
79. The Judge said of the application to join Zain –
“At the hearing, Counsel for the Claimant expressed the sentiment that the application for joining Zain Capital LLC to the proceedings is in fact no longer a priority and may be left to one side, or indeed ignored altogether. I shall therefore dismiss the application.”
80. This is born out in the transcript of the hearing. It is rather surprising, therefore, that the refusal to join Zain was appealed. The appeal ground was unhelpful, simply that the application “should have been granted to allow an effective remedy against Zain as the new owner of the Units”.
81. A short answer to joining Zain is that, the proceedings being otherwise at an end because Emirates gains immediate judgment, as a matter of discretion Zain should not be joined. Apart from that, in none of VB’s skeleton argument on permission to appeal, its skeleton argument and supplementary skeleton argument for the appeal, or its oral submissions at the appeal hearing, was anything said about the joinder of Zain. When no attempt was made to support the appeal ground, it should be taken to have been abandoned. On even a cursory consideration of the cause of action against Zain in the PPC, this is an understandable course, to which maybe added that the cause of action had no real prospect of success because of the invalidity of the Lease for uncertainty.
The Document Production Orders
82. The Judge declined to make the orders for a number of reasons, saying that he did so “even if the application did not rest upon the success of the others”. His Excellency was not satisfied that there had been prior non-compliance by Emirates in document production and regarded the application for the orders as nothing more than a fishing expedition; and he considered disclosure of new information, in context meaning information of assistance to VB, implausible.
83. The orders are now moot, but no reason has been shown to differ from the Judge’s views. In particular, and putting uncertainty aside, there is no reason to conclude that further document production might overcome the terminal difficulties in establishing that the Lease was binding on Emirates.
The Witness Summons
84. The appeal grounds also included that the Judge was in error in refusing the application for a witness summons. The Judge noted that Mr Bowden said he did not wish to proceed with the application. Again, it is surprising that the failure to issue the witness summons was appealed. VB said nothing of it in submissions, and the appeal ground should be taken to have been abandoned.
A Further Matter
85. The appeal grounds included that the Judge “demonstrated apparent or actual bias”. From a paragraph in the document, a lengthy and unfocused 22 pages, the bias came down to the Judge failing properly to deal with the facts and the law, although the complaint was in extravagant language.
86. Not a word was said of the ground in VB’s skeleton argument on permission to appeal, its skeleton argument and supplementary skeleton argument for the appeal, or its oral submissions at the hearing. It is quite improper to assert bias, particularly actual bias, without a basis for doing so. The assertion of bias was without foundation, and should not have been made.
87. I propose the following orders:
(a) On the application to restore VB to the Register:
88. VB is restored to the Public Register.
89. Naki Alkalajleh is directed to:
(a) deliver a copy of these orders to the Registrar of Companies within 14 days; and
(b) forthwith inform the Court of such delivery by letter to the Registry.
90. Reserve liberty to Emirates National Bank of Dubai Properties PJSC (“Emirates”) to apply for an order in relation to the costs of the application and the appeal.
(b) On the appeal:
91. The appeal is dismissed.
92. Subject to order 3, VB is ordered pay the costs of Emirates, to be assessed by a Registrar if not agreed.
93. Emirates has liberty to apply for a different or additional order in relation to costs within 21 days.
H.E. JUSTICE ALI AL MADHANI
94. I agree with the comments and proposed orders of the learned judges, Zaki CJ and Giles J, and have nothing further to add.
Date of issue: 15 October 2020