January 17, 2018 court of first instance - Orders
Claim No: CFI 048/2017
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURT OF FIRST INSTANCE
BEFORE JUSTICE SIR JEREMY COOKE
BETWEEN
SUNTECK LIFESTYLES LIMITED
and
(1) AL TAMIMI AND COMPANY LIMITED
(2) GRAND VALLEY GENERAL TRADING LLC
Defendants
ORDER OF JUSTICE SIR JEREMY COOKE
PENAL NOTICE
IF YOU DISOBEY THIS ORDER YOU MAY BE HELD TO BE IN CONTEMPT OF COURT AND MAY BE FINED OR HAVE YOUR ASSETS SEIZED.
IF YOU, ACTING BY OR THROUGH ANY INDIVIDUAL, DISOBEY THIS ORDER SUCH INDIVIDUAL OR INDIVIDUALS, MAY BE HELD TO BE IN CONTEMPT OF COURT AND MAY BE IMPRISONED, FINED OR HAVE THEIR ASSETS SEIZED.
ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS THE RESPONDENT TO BREACH THE TERMS OF THIS ORDER MAY ALSO BE HELD TO BE IN CONTEMPT OF COURT AND MAY BE IMPRISONED, FINED OR HAVE THEIR ASSETS SEIZED.
UPON reviewing the Claim CFI 048/2017 seeking interim relief in the form of an injunction
AND UPON hearing Counsel for the Claimant at an Ex-parte hearing on 21 October 2017
AND UPON considering the Order of Justice Sir Jeremy Cooke dated 21 October 2017
AND UPON reviewing the further evidence filed by the Claimant pursuant to directions issued by the Court on 31 October 2017
AND UPON hearing Counsel for the Claimant and the Defendants at the inter partes Return Date hearing on 7 November 2017
AND UPON the Judgment of Justice Sir Jeremy Cooke dated 16 November 2017
AND UPON reviewing the correspondence received from the parties dated 19 November 2017 and 20 November 2017
AND UPON considering the Order of Justice Sir Jeremy Cooke dated 10 January 2018
IT IS HEREBY ORDERED THAT:
THIS ORDER
1. This is an Order made against (1) Al Tamimi and Company (the “First Defendant”) and (ii) Green Valley General Trading LLC (the “Second Defendant”) (the First Defendant and Second Defendant together, the “Defendants” and each a “Defendant”) on 16 November 2017 by Justice Sir Jeremy Cooke following the inter partes Return Date hearing of the Order dated 21 October 2017 made on the ex-parte without notice application of Sunteck Lifestyles Limited (the “Claimant”) and upon hearing Counsel for the Claimant and the Defendants at the Return Date hearing on 7 November 2017.
2. The Court has accepted the continuing undertaking set out in Schedule B at the end of this Order.
3. This Order is effective against any Defendant on whom it is served or who is given notice of it.
ORDER
4. On a continuing basis or until further Order of the Court, the First Defendant must not give or release to the Second Defendant (or its nominee) or otherwise dispose of the following original documents subject of the escrow agreement between the Claimant and the Defendants dated 28 June 2015 (the “Escrow Agreement”):
(a) Original share certificates (the “Shares Certificates”) in respect of the Claimant’s shares (the “Shares”) in the joint venture company (the “JVco”) established by the Claimant and the Second Defendant and others, excluding those Share Certificates already released to the Claimant at the date of this Order (namely Share Certificates Nos. 6 & 8-26);
(b) A power of attorney authorising the attorneys listed in the power of attorney and/or any other attorney of the First Defendant to transfer the Shares to the Second Defendant (the “POA”); and
(c) A board resolution of the Claimant approving the transfer of the Shares to the Second Defendant (the “Resolution”)
(together the “Documents”).
EXCEPTIONS TO THIS ORDER
5. This Order may be varied by the parties upon written consent of the Claimant’s legal representatives.
COSTS
6. The Second Defendant shall pay the Claimant’s costs of the inter partes hearing on the standard basis to be the subject of detailed assessment if not agreed.
7. Costs of the ex parte application reserved.
8. Costs of the First Defendant reserved.
VARIATION OR DISCHARGE OF THIS ORDER
9. Anyone served with or notified of this Order may apply to the Court at any time to vary or discharge this Order (or so much of it as affects that person), but they must first inform the Claimant’s legal representatives. If any evidence is to be relied upon in support of the application, the substance of it must be communicated in writing to the Claimant’s legal representatives in advance.
INTERPRETATION OF THIS ORDER
10. A Defendant who is an individual who is ordered not to do something must not do it himself or in any other way. He must not do it through others acting on his behalf or on his instructions or with his encouragement.
11. A Defendant which is not an individual which is ordered not to do something must not do it itself or by its directors, officers, partners, employees or agents or in any other way.
PARTIES OTHER THAN THE CLAIMANT AND THE DEFENDANTS
12. It is a contempt of court for any person notified of this Order knowingly to assist in or permit a breach of this order. Any person doing so may be imprisoned, fined or have their assets seized.
REVOCATION
13. To the extent that any prior Order has issued in December 2017 or January 2018, which is not consonant with this Order and the terms of the judgment given, that Order is revoked.
COMMUNICATIONS WITH THE COURT
All communications to the Court about this Order should be sent to:
DIFC Courts’ Registry, Ground Floor, Building 4, Gate District, DIFC, Dubai, UAE
Telephone: + 971 4 427 3333
Fax: +971 4 427 3330
Email: registry@difccourts.ae
The Court’s offices are open between 10am to 5pm, Sunday to Thursday (excluding Public Holidays)
Issued by:
Natasha Bakirci
Assistant Registrar
Date of issue: 17 January 2018
At: 4pm
SCHEDULE OF REASONS
1. The Judgment of Justice Sir Jeremy Cooke dated 16 November 2017 referred to the issues to be resolved in paragraphs 26 and 29.
2. The Judgment provided for any Order issued to be in the form proposed by the Applicant, within one working day, in the absence of objection.
3. The objections taken by the Second Defendant amounted to fresh arguments against the continuing Order (which were abjured at the hearing) and not simply to the form of the Order made. The objections were thus groundless, and it is appropriate that the Order should take the form proposed by the Applicant, subject only to the issue of costs which was separately argued.
4. On costs, it was decided that the Second Defendant should pay the Claimants’ costs of the inter parties hearing on the standard basis to be the subject of detailed assessment by the Registrar if not agreed. All other costs were reserved. Although it was not correct to say (as the Defendant had wrongly alleged) that the Claimant did not submit a costs schedule the day before the hearing, upon further consideration of the matter and, given the overall circumstances, the other reason that was given, namely, that it was best for any assessment to be made by the Registrar, holds good and this represents the appropriate order.
5. To the extent that the Order of 10 January 2018 is inconsistent with this full Order and the terms of the Judgment, that Order is revoked pursuant to the powers of the Court under RDC 36.41, inasmuch as it represented an accidental slip or omission which the Court is entitled to correct, without any formal application by a party. The easiest method of correction is the issue of this fresh Order.
SCHEDULE B
UNDERTAKINGS GIVEN TO THE COURT BY THE CLAIMANT/APPLICANT
If the Court later finds that this Order has caused loss to the First Defendant and/or Second Defendant, and decides that the First Defendant and/or Second Defendant should be compensated for that loss, the Claimant will comply with any order the Court may make.
NAME AND ADDRESS OF CLAIMANT/APPLICANT’S LEGAL REPRESENTATIVES
The Claimant’s legal representatives are:
Clyde & Co LLP, PO Box 7001, Level 15 Rolex Tower, Sheikh Sayed Road, Dubai, UAE
Attn: Keith Hutchison, Nick Braganza, Rhys Monahan
Tel: + 971 4 384 4000 (office hours 8:30am to 5:30pm) / + 971 50 153 5341 (out of office hours)
Fax: + 971 4 384 4004
Email: keith.hutchison@clydeco.ae; nicholas.braganza@clydeco.ae; rhys.monahan@clydeco.ae