Claim No: CFI 039/2025

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF APPEAL

BETWEEN

EMIRATES NBD BANK PJSC

Claimant/Respondent

and

(1) RASHED ABULAZIZ ALMAKHAWI
(2) ABDULAZIZ RASHED ABDULAZIZ MOHAMMED ALMAKHAWI
(3) HESSA RASHED ABULAZIZ ALMAKHAWI
(4) SHAMMA RASHED ABULAZIZ ALMAKHAWI

Defendants

ORDER WITH REASONS OF H.E. CHIEF JUSTICE WAYNE MARTIN

UPON the Order of H.E. Justice Michael Black dated 18 March 2026 (the “18 March Order”)

AND UPON the Order with Reasons of H.E. Justice Michael Black dated 3 April 2026 (the “3 April Order”)

AND UPON the Order with Reasons of H.E. Justice Michael Black dated 17 April 2026 (the “17 April Order”)

AND UPON the Second Defendant’s Renewed Application for Permission to Appeal dated 15 May 2026 seeking to appeal the 18 March Order, paragraphs 1, 2 and 4 of the 3 April Order and the 17 April Order (the “Renewed Application”)

AND UPON the Second Defendant’s Application No. CFI-039-2025/12 dated 15 May 2026 seeking various procedural orders and stays (the “Application”)

AND UPON the Claimant’s submissions in opposition dated 5 June 2026

IT IS HEREBY ORDERED THAT:

1. The Renewed Application is dismissed.

2. The Application is dismissed.

3. The Second Defendant shall pay the Claimant’s costs of each Application to be assessed on the standard basis by process of immediate assessment in accordance with the following directions.

4. Within twenty-one (21) days of the date of this Order, the Claimant is to file a Statement of Costs together with any submissions in support of the costs claimed.

5. Within twenty-one (21) days of the date of service of the Statement of Costs, the Second Defendant is to file any submissions in opposition to the quantum of the costs claimed.

6. Within fourteen (14) days of the date of service of the Second Defendant’s submissions pursuant to the preceding order, the Claimant shall file any submissions in reply.

7. The quantum of the Claimant’s costs to paid by the Second Defendant will thereafter be assessed on the papers by H.E. Chief Justice Wayne Martin.

Issued by:
Delvin Sumo
Assistant Registrar
Date of issue: 2 July 2026
At: 9am

Summary

1. The Appellant, Rashed Abdulaziz Mohammed Almakhawi (the “Appellant”) has applied to the Court of Appeal for permission to appeal from the decision of the Judge at first instance (the “Judge”) granting a Worldwide Freezing Order (“WFO”) against the Appellant and the other Defendants, who are his father and sisters (the “Renewed Application”). The Renewed Application has been made to the Court of Appeal because the Judge refused the Initial Application for Permission to Appeal (the “Initial Application”). The Appellant has also made application for a miscellany of procedural orders which fall into two categories, namely, orders regularising the procedure which has been followed by the Appellant and secondly, orders staying the operation of orders made by the Judge until the determination of the Renewed Application, or the appeal, as the case may be.

2. The Appellant has failed to establish that any of the proposed grounds of appeal have a real prospect of success, or that there is some other compelling reason why the appeal should be heard. It follows that the Renewed Application must be dismissed with costs. It also follows that it is unnecessary to determine the various applications for procedural orders intended to regularise the procedure which has been followed or the applications for stays which presume the continued existence of the appeal. Accordingly, those applications must also be dismissed with costs.

Context

3. The proceedings in this Court should be seen in their context. The First Defendant, who is the Appellant’s father, became indebted to the Claimant, ENBD Bank (the “Bank”) pursuant to a personal guarantee granted to the Bank. The Bank sought to enforce the guarantee and obtained judgment in the Dubai Court of First Instance in January 2017. The amount due under that judgment now stands at more than USD 90m. The First Defendant has made no payments against that judgment, and the Bank alleges that he dissipated assets in excess of USD 170m to his children, including the Appellant. The Bank has achieved some recovery of its debt by the pursuit of enforcement proceedings in various other jurisdictions.

4. In the course of proceedings before the English High Court, serious findings were made against both the First Defendant and the Appellant as to their intention to defraud the First Defendant’s creditors. In that regard there is evidence to the effect that the Appellant sought to convert a substantial amount of cash received from his father (approximately USD 26m) into gold or other precious metals and gemstones after judgment had been entered against his father.

5. The Bank commenced proceedings in this Court on the basis that all Defendants have taken steps to frustrate the execution of the judgments of the Dubai Court and the English Courts by participating in arrangements for the transfer of assets from the First Defendant to one or more of his children, who are the other Defendants. The Bank claims:

6. The Bank applied for a WFO against all Defendants, in order to preserve their assets so that they will be potentially available for enforcement proceedings if and when these proceedings are concluded and judgment is entered against the Defendants.

Relevant procedural history

7. The Application for the WFO was made on notice and heard by the Judge on 17 March 2026. The Judge also heard applications by all Defendants for declarations to the effect that the Court lacked jurisdiction to entertain the claim. Following the hearing, the Judge announced that he had decided to dismiss the objections to jurisdiction and grant the WFO for reasons to be published in due course. The WFO was issued the following day – namely, 18 March 2026.

8. On 3 April 2026, the Judge issued orders dismissing the Defendants’ challenges to the jurisdiction of the Court, granting the WFO, ordering the Defendants to pay the Bank’s costs of the applications he had determined and refusing permission to appeal the finding of the Court to the effect that the Bank was a DIFC Establishment or Licensed DIFC Establishment.

9. The Judge provided lengthy reasons for his decision in which he carefully analysed all the submissions which had been made and the relevant authorities. In summary, he concluded that:

10. On 30 March 2026, the Appellant applied for orders extending the time by which he was required to provide information with respect to his assets until 10 April 2026. On 6 April 2026, the Bank applied for orders dismissing the Appellant’s application for an extension of time and for an order that unless disclosure of information as to his assets was provided by 10 April 2026, he should not be permitted to advance any defence to the claims made against him in these proceedings.

11. On 13 April 2026, the Appellant applied for an order that his email of 8 April 2026 should stand as service of a notice seeking renewed permission to appeal from the decision of the order of 18 March 2026 and should stand as filed in time. On 14 April 2026, the Appellant formally filed the Renewed Application.

12. On 17 April 2026, the Judge dismissed the Appellant’s application for permission to appeal on all grounds and directed the Appellant to provide documents and information relating to his assets by 20 April 2026. He further ordered that unless the Appellant complied with those orders within that time, he would not be permitted to advance any defence to the claim in these proceedings. He also ordered that the Renewed Application should be treated as having been filed on 8 April 2026.

13. On 15 May 2026, the Appellant applied for various procedural orders regularising documents which had been filed in support of the Renewed Application and declaring that they had been filed within time or alternatively, seeking extensions of time and orders pending determination of the Renewed Application and, if permission is granted, pending determination of the appeal. The Appellant applied for the following orders:

14. As the application depends upon the outcome of the Renewed Application, it is properly considered by the Court of Appeal.

Permission to appeal – legal principles

15. RDC 44.117 provides

16. RDC 44.5 requires that an appellant obtain permission to appeal to the Court of Appeal except where the appeal is against a committal order.

17. RDC 44.19 provides:

18. RDC 44.19 provides that permission to appeal may only be given where the appeal would have a real prospect of success or there is some other compelling reason why the appeal should be heard.

19. In the context of an assessment of the prospects of success “real” means realistic rather than fanciful and involves the same test as is applied in applications for immediate judgment.²

20. A real prospect of success does not mean a probability of success, but more than mere arguability.³

21. “Some other compelling reason why the appeal should be heard” may include the public interest in clarifying the meaning and scope of relevant practice and provisions of DIFC and wider UAE law.⁴

22. It is established that “real” in the context of an assessment of the prospects of success means realistic rather than fanciful, applying the same test as is applied in an application for immediate judgment.⁵

23. It is also established that a real prospect of success does not mean a probability of success, but more than mere arguability.⁶

24. Accordingly, in order to obtain the grant of permission a prospective appellant needs to establish more than the proposition that the proposed appeal is reasonably arguable – rather, it must be established that there is a real prospect of success.⁷

25. When a renewed application made to the Court of Appeal is refused, it is appropriate for the Court to provide reasons which adequately explain the reasons why permission has been refused. The adequacy and extent of those reasons will be informed by the fact that the refusal of permission is final and conclusive and determines the issues the subject of the appeal.

26. On the other hand, when a renewed application for permission to appeal is granted, the reasons for the grant can and should be expressed more briefly, and any views expressed should be expressed and read as provisional, on the basis that a different view might well be formed following the consideration of the fuller argument which will be presented at the hearing of the appeal. Further, the reasons for granting permission in respect of grounds of appeal will be expressed economically, not only because the determination of the issue raised by the ground must await the hearing of the appeal but also to limit the prospect that a party might consider that a member of the Court of Appeal does not retain an open mind in relation to any of the issues in the appeal.

The grounds of appeal

27. The grounds of appeal have been amended since the initial application for permission was made to the Judge. There are now three proposed grounds of appeal.

Ground 1

28. Ground 1 asserts that the Judge erred by holding that the Bank is a Licensed DIFC Establishment and a DIFC Establishment. In support of this ground, the Appellant submits that:

29. Each of these propositions will be addressed in turn.

30. The Judge correctly rejected the proposition that there was a material and significant difference between the terminology used in the Courts Law 2025 with respect to the relevant gateway, as compared to the terminology used in the JAL. Any differences in terminology are easily explained by the changes in the financial services legislation between the promulgation of the two Laws.

31. The Judge was also correct, for the reasons he gave, to reject the suggestion that recognition as a member of NASDAQ did not provide authority to carry on “financial services”. He described the activities which could be performed by the Bank as a member of NASDAQ and concluded, correctly, that they involved the provision of financial services. The Bank would not be able to provide those services unless it was recognised by the DFSA as a member of NASDAQ.

32. The proposition that the Bank is not carrying on any activity “in or through” the DIFC because it provides information and communications to NASDAQ from outside the DIFC is misconceived. The NASDAQ is based in and operates from the DIFC. Clearly the Bank can only perform activities in respect of its membership of NASDAQ in or through the DIFC. Put another way, the securities listed by the Bank by reason of its membership of NASDAQ are listed in the DIFC. It follows that the Bank is carrying on activities in or through the DIFC.

33. The proposition that the jurisdiction conferred with respect to DIFC Establishments should be confined to cases arising from or connected with the activities which give rise to the entity’s status as a DIFC Establishment has no support in the text of the Courts Law or any previous decision of the Court. To the contrary, it is clear from the terms of Article 14 A (1) of the Courts Law that jurisdiction under that Article depends upon the status of the relevant entity, rather than the activity giving rise to the dispute.

34. The submission that the Judge dismissed the DFSA’s public statement as irrelevant is simply wrong. The Judge observed that the statement was “irrelevant to the question of whether or not ENBD may carry on financial services in or from the DIFC”. Further, the Judge gave detailed consideration to the public statement and construed it in terms which were contrary to the Appellant’s submissions. That construction was clearly open to him.

35. The criticism of the approach taken by the Judge to the definition of financial services is misconceived. The question which the Judge addressed, correctly, was whether the Bank’s membership of NASDAQ provided it with authority to provide financial services. His affirmative answer to that question was plainly correct.

36. The criticism of the Judge for relying upon the decision in Lamag depends upon the proposition that it is distinguishable because it was decided under the JAL rather than the Courts Law. As the Judge was correct to hold that there is no material difference between the relevant provisions in those Laws, the Judge was correct to draw guidance from the decision in Lamag.

37. The criticism of the Judge for failing to “give enough weight” to the decision in Dahwan is similarly misconceived. The facts of that case were entirely unrelated to the present case and the observations of Bathurst J upon which reliance is placed go no further than restating the relevant legislative provisions.

38. Finally, as it is clear that the jurisdiction of the Court pursuant to Article 14 A (1) is determined by the status of the litigant rather than the nature of the dispute in which the litigant is engaged, the consequences of that construction of the Article cannot be used to read down the clear and unequivocal terms of the Law. But in any event, as the Judge pointed out, mechanisms exist for the resolution of conflicts in jurisdiction within Dubai (the Conflict of Jurisdiction Tribunal) and within the UAE (the Union Supreme Court).

39. There is no substance in any of the propositions advanced in support of Ground 1. It has no real prospect of success. The Judge’s decision is entirely consistent with prior authority and there is no compelling reason for this issue to be determined at appellate level.

Ground 2

40. Ground 2 asserts that the Judge erred by concluding that it was not open to him to decline jurisdiction on FNC grounds.

41. In support of this ground, reliance is placed upon Article 14 C of the Courts Law which provides:

42. However, the Appellant does not submit that this case falls within either of the two categories of case in which jurisdiction might be declined – no doubt because there is no basis whatever for such a submission. Rather, the Appellant contends that the Article confers a general discretion to decline exclusive jurisdiction.

43. That proposition derives no support from the text of the Article. To the contrary, if anything, the relevant Article implies that the two categories of case specified are the only categories of case in which the Court may decline to exercise jurisdiction.

44. In further support of this ground, the Appellant contends that the Judge was wrong to follow the decision of the Court of Appeal in IGPL v Standard Chartered Bank¹⁰ to the effect that FNC did not provide a basis for declining the exercise of jurisdiction, on the grounds that it was decided under the JAL, rather than the Courts Law 2025. For the reasons already given, that is no basis for distinguishing the decision in IGPL, by which the Judge was bound. Further, the Judge gave careful consideration to other authorities in this area and concluded that, at least within the Emirate of Dubai, issues with respect to the most appropriate forum were resolved by the Conflict of Jurisdiction Tribunal rather than FNC principles. The Appellant’s only answer to that conclusion is to contend that the jurisdiction of the Tribunal only arises where there are two cases on foot in different Courts, which does not exclude the prospect of a Court declining jurisdiction on FNC grounds. That submission, with respect, misses the point, which is to the effect that the legislation in the Emirate provides a mechanism for the determination of which is the more appropriate forum when conflicts of jurisdiction arise, consistently with the view that the legislation relating to the exercise of the Court’s jurisdiction does not confer a discretion to decline to exercise such jurisdiction.

45. The decision in IGPL has stood as good authority for more than a decade and has been followed in other cases.¹¹ The circumstances of this case do not provide an appropriate occasion for the reconsideration of the correctness of the decision in IGPL because the grounds for a stay on FNC principles are extremely weak. The claims made in the proceedings in this Court have never been ventilated in any other Court, including the Courts of Dubai. The issues determined by those Courts related to the liability of the First Defendant under the guarantee which he gave to the Bank. The issues raised in these proceedings relate to the combined actions of all Defendants which are said to have been undertaken in breach of various provisions of the UAE Civil Code. The issues raised in these proceedings are quite separate and distinct from the issue determined by the Dubai Courts.

46. For these reasons, ground 2 has no prospect of success and there is no other compelling reason why the issue should be heard and determined by the Court of Appeal.

Ground 3

47. Ground 3 asserts that the Judge erred in respect of the basis upon which the WFO was granted and in respect of its scope.

48. The first obstacle which this ground must confront is that it challenges a decision made in the exercise of the Judge’s discretion following evaluation and weighting of various factors. It is well established that an appellate court will exercise considerable restraint before interfering with a decision of that kind, and will only do so if it is established that the Judge erred in law or in principle, or failed to take a relevant matter into account, or took into account an irrelevant matter, or came to a decision which was plainly wrong, in the sense that it was so unreasonable that no reasonable Judge could have made it.

49. The argument advanced in support of this ground does not confront this substantial obstacle or attempt to overcome it. Specifically, the Appellant does not submit that the Judge erred in law or applied a wrong principle, or failed to take into account a relevant matter, or took into account an irrelevant matter, or that his decision was so outside the range of decisions reasonably open to him as to be “plainly wrong”. To the contrary, the argument essentially comes down to the proposition that the Judge should have accepted the Appellant’s arguments.

50. The Judge found that there was a good arguable case to the effect that all Defendants, including the Appellant, had participated in a scheme to transfer assets from the First Defendant to the other Defendants to as to defeat the enforcement of the Bank’s claims. There was ample evidence to justify the Judge’s conclusion that there was an arguable case – indeed a case which has been established against the Appellant in England.

51. The Appellant also complains that the ambit of the information which the Judge required the Appellant to provide, goes beyond his identified assets. That submission rather misses the point of an order for the provision of information with respect to assets, which is to identify assets which may not be known to the judgment creditor. In any event, the ambit of the documents and information to be provided by the Appellant was clearly a matter within the discretion of the Judge, and no basis for appellate interference has been suggested.

52. Ground 3 has no prospect of success.

The Renewed Application - Conclusion

53. As none of the proposed grounds of appeal has any prospect of success, and no other compelling reason for the appeal to be heard has been established, the Renewed Application must be dismissed with costs.

The ancillary application

54. As the Renewed Application must be dismissed on its merits, it is unnecessary to consider or determine any of the applications which have been made with respect to orders regularising the procedure followed by the Appellant. The other orders sought were all sought on a temporary basis, pending determination of the Renewed Application or the appeal, as the case may be. As the Renewed Application will be dismissed, there is no basis for those orders.

55. It follows that the ancillary application must also be dismissed with costs.