Claim No: CFI 054/2024

IN THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF FIRST INSTANCE

BETWEEN

WINCORE ADVISORY GROUP DMCC

Claimant

and

(1) JPV MANAGEMENT CONSULTANCY
(2) JAI PRAKASH NARAINE

Defendants

ORDER WITH REASONS OF H.E. DEPUTY CHIEF JUSTICE ALI AL MADHANI

UPON the Claimant’s Part 7 Claim filed on 29 July 2024 (the “Claim”)

AND UPON the Order of H.E. Deputy Chief Justice Ali Al Madhani dated 2 September 2025 dismissing the Claimant’s Application to adduce the witness statement of Mr Mohammed Rahali dated 22 July 2025 into evidence (the “2 September Order”)

AND UPON hearing counsel for the Claimant and counsel for the Defendants at the Trial held before H.E. Deputy Chief Justice Ali Al Madhani on 3 and 4 September 2025 (the “Trial”)

AND UPON the Claimant’s Application No. CFI-054-2024/2 dated 23 September 2025 seeking an extension of the 21-day period to file an Appeal Notice (the “Application”)

AND UPON the Judgment of H.E. Deputy Chief Justice Ali Al Madhani dated 16 October 2025 (the “Judgment”)

AND UPON the Defendants’ Appeal Notice dated 7 November 2025 seeking permission to set aside part of the Judgment and a variation of the costs order (the “Appeal Notice”)

AND UPON the Defendants’ Skeleton Argument and Grounds of Appeal dated 28 November 2025, filed in support of the Appeal Notice

AND UPON the Claimant’s submissions in opposition dated 19 December 2025

IT IS HEREBY ORDERED THAT:

1. The Appeal Notice is dismissed.

2. The Application CFI-054-2024/2 seeking an extension of time to file the Appeal Notice is dismissed.

3. Costs are awarded to the Claimant on the standard basis for the Appeal Notice and the Application, to be assessed by the Court by way of written submissions if not agreed.

Issued by:
Hayley Norton
Assistant Registrar
Date of issue: 24 February 2026
At: 1pm

1. This Appeal Notice is brought by the Defendants seeking an order to set aside paragraphs 1 and 2 of the Judgment, and to vary the costs order at paragraph 3.

2. To address a matter of housekeeping, the Court determined that this Appeal Notice could properly be resolved on the papers rather than at a hearing. The issues were condensed, straightforward and did not raise any factual dispute or inconsistency that would require further pleadings. The written submissions filed were comprehensive in setting out the parties’ respective positions. In these circumstances, in consideration of the Overriding Objective and case management, it would not have further assisted the Court to list a full hearing. Therefore, this matter is to be disposed of on the papers only.

3. Further, I will first briefly address the Claimant’s Application No. CFI-054-2025/2 in this Order. This Application seeks an extension of time to file an appeal against the 2 September Order which rejected the Claimant’s sought permission to adduce the witness statement of Mr Mohammed Rahali dated 22 July 2025 and exhibits MR-1 to MR-6 into evidence, and denied permission for Mr Rahali to give oral evidence at the Trial.

4. The reason for this was given during the Trial; while it is acknowledged that there was a failure on the Defendant’s part to serve the Claimant its objection separately, and so the Court assumed that the Claimant disposed of its right to reply, the Court’s primary concern in these circumstances was maintaining the estimated time for the Trial to commence. Therefore, the 2 September Order was issued because the original application seeking permission was filed very late – it is highly unusual for evidence to be furnished after the filing of the skeleton arguments – and any accommodation of additional evidence would have resulted in adjourning the Trial, particularly as the Trial had already suffered two previous adjournments, therefore Rule 4.51 of the DIFC Courts was triggered.

5. On the current Application seeking an extension of time to appeal, I am of the view that at this stage of proceedings it is entirely unnecessary to grant such permission. The Judgment has been issued, which was in favour of the Claimant without the use of Mr Rahali’s oral evidence, and the Defendant’s Appeal Notice is rejected (with reasons for this below). Therefore, this Application is dismissed. Finally on this section, given that the Judgment has now been issued for the case, I will dispense with a reiteration of the background and procedural history

The Judgment

6. The Judgment awarded the Claimant AED 670,554.13 for outstanding commission rates and liquidated damages, with 5.27% interest running from the date of the final invoice to the date of issue of the Judgment (the “Judgment Sum”).

7. The Judgment Sum was awarded on the basis that the Defendants had been found to be in breach of a commercial introduction and referral agreement (the “Agreement”) as the Second Defendant joined the First Client’s company as “Head of Compliance”, contrary to clause 3.5.4 which read:

“No members, employees or officers of [D1] can be hired by the client, Members, employees, officers and associates of [D1] shall be will be prohibited from being employed directly by the client.”

8. Quantum for the Judgment Sum was calculated on the actual commission owed, which had been reduced to USD 7,000 per month from January 2024, and an uncontested entitlement to liquidated damages pursuant to clause 15 of the Agreement. The interest claimed was also unopposed in the defence, and so was awarded.

Relevant Rules on Appeal

9. This Appeal Notice is brought pursuant to Rule 44.19 of the Rules of the DIFC Courts (“RDC”) which reads:

10. As a matter of housekeeping, the Respondent raised several procedural failures of the Applicants in its submissions. First, the Appeal Notice was filed outside the 21 day limit set by RDC 44.10(2); the Judgment was issued on 16 October 2025 and the Appeal Notice was fled 22 days after on 7 November 2025. Despite falling outside of the time limit, the Applicants failed to file an application for an extension of time and an explanation for the delay alongside the grounds of appeal pursuant to RDC 44.13.

11. Further, the Respondent highlights that the Applicants failed to apply for permission to file their skeleton argument and grounds of appeal separately, nor did they submit any reason as to why filing simultaneously was impractical despite confirming their reliance on the exception provided by RDC 44.30 in the Appeal Notice. The Respondent relies on Justice Cooke’s judgment in Lal v Benton [2021] DIFC CFI 005 paragraph 6, where it was confirmed that an application must substantiate relevant impracticability. Advancing this point, the Respondent relies on Abdelsalam v Expresso Telecom Group Ltd [2019] DIFC CFI 015, whereby the applicant's permission to appeal application was refused on the basis that the appeal would have no real prospect of success, because the grounds of appeal were filed out-of-time contrary to RDC 44.10, 44.29, and 44.30, without any evidence or explanation being given to justify the delay or the impracticality of filing in the prescribed period.

12. On the above, the Respondent submits that the Applicants’ procedural failure is sufficient to dismiss the Appeal Notice on its face.

13. In my view, it is appropriate to allow the Appeal Notice to survive despite procedural irregularities.

14. I accept that the Appeal Notice was filed out of time, being 22 days instead of 21. Ordinarily, this would trigger sanction by way of rejection on procedural grounds. However, Justice Zaki was clear in his Abdelsalam Judgment that the reason for the rejection was that “no evidence and or reason was given to justify the delay in filing, or that the time prescribed was impracticable. On that basis alone the Judge held that the appeal would have no real prospect of success. I am of the opinion that he is right.” [emphasis added].

These circumstances deviate from Abdelsalam. In the Appeal Notice, some reasoning is given:

16. Irrespective of whether the reasons given were sufficient, the fact that some reason or justification of impracticality was filed is enough to deviate from the Abdelsalam precedent. Further, in accordance with the Overriding Objective, it is proportionate to allow the Appeal Notice to survive a procedural axe on the basis that there was only a one-day delay with no evident prejudice to the Respondent. Additionally, the skeleton argument and grounds of appeal were filed within the 21-day time limit thereafter.

17. I will allow the Appeal Notice, which will be determined on the merits.

Grounds of Appeal

18. The Applicants submit four grounds of appeal on errors of law and in constructing evidence in holding that the Second Appellant breached the Agreement. The grounds, and the Respondent’s submissions, will be dealt with separately in accordance with RDC 44.19.

19. The submitted grounds have different consequences on appeal. By way of summary, if the first ground succeeds, the Judgment cannot stand in its entirety. If the second and third grounds succeed, the Commission award of AED 170,554.13 will be significantly revised. If only ground four succeeds, the liquidated damages award of AED 500,000 will be reduced to a reasonable and proportionate quantum. The consequences of accepting one or more grounds will be considered in the prospect of success of the ground achieving that outcome, in accordance with what has been pleaded.

First Ground

20. In its first ground, the Applicants submit that the Judgment was reached without any or due consideration of Article 31 of the DIFC Law No. 6 of 2004 (the “DIFC Contract Law”).

21. At paragraph 34 of the Judgment, it was stated that:

“D2 advanced that all three entities of interest – the Claimant, D2 and the First Client were all aware of and in agreement with D2 taking up employment with the First Client. This was not included in D2’s original witness statement but was pleaded as a defence to the alleged breach as his employment with the First Client was conducted with consent of the Claimant.”

The Applicants submit this is contrary to the court file. In the witness statement of the Second Appellant dated 28 February 2025 at paragraphs 8 to 9, it is submitted that:

“Initially, multiple candidates were proposed to the regulatory authorities, but all were rejected du to lack of necessary experience. At that point, I was requested to take up the role, as I met the requirements. The Claimant was aware of this situation and raised no objections when I assumed the position.”

22. On this point, it is the Applicants’ position that, while there was no formal addendum to the Agreement to permit the Second Applicant joining the First Client as an employee, the fact that the Respondent accepted payment without protest of the Commission from the Second Appellant in full knowledge that the Second Appellant took up employment constitutes a waiver of Clause 15 of the Agreement, which requires variations to terms to be in writing.

23. DIFC Contract Law at Article 31 reads:

Therefore, the Respondent’s conduct indicated no issue with the Second Applicant’s employment, contrary to its claim that the Second Applicant breached the Agreement by doing so.

24. The Respondent objects to this ground on the basis that the Agreement is explicit in its restriction of members, employees, or officers of the First Applicant from being employed by the First Client. At paragraph 45, the Judgment correctly identifies the Second Applicant as an “officer” of the First Applicant, therefore falling squarely within the scope of the restriction in clause 3.5.4 and excluding any reliance on Article 31. Further, the finding at paragraphs 34 and 45 of the Judgment are correct in the finding that there was no actual evidence filed to support the Applicants’ position that the Respondent did not contest to the Second Applicant’s employment. Acceptance of commission payments, which is admitted, does not constitute a waiver of the Agreement; the Judgment correctly found that no evidence submitted supported this defence.

25. There are two reasons why, in my view, this ground fails; first, commission payments are a contractual entitlement. Second, the Applicants failed to legitimise the connection between the payment of commission and acceptance of variation by conduct.

26. Commission entitlement is defined at clause 3.1 of the Agreement as:

“The Party who introduced the client shall be entitled to a monthly recurring Commission if a Prospective Client Introduced by such Party enters into a Relevant Contract.”

27. A ‘Relevant Contract’ is defined as a “Contract for the providing of Services (or letter of engagement) entered into during the introduction Period between a Party and the Prospective Client who was Introduced by the other Party”. Further, as explained at paragraph 20 of the Judgment, the Commission Entitlement survives the Agreement in any circumstance and must continue to be paid so long as the introduced clients remain employees, irrespective of who that client is. Therefore, given that the Second Applicant entered into employment with the First Client, the Commission Entitlement was triggered by proxy and continues independently regardless of the continuation of the Agreement or a breach thereof.

28. The construction of the contract allows for two co-existing obligations, even if they contradict. The Respondent is entitled to commission irrespective of who the clients are; simultaneously, the Second Appellant is restricted from gaining employment with the First Client under clause 3.5.4.

29. On to the second point; the Applicants failed to legitimately scribe commission payments as acceptance of variation by conduct. Clause 15 of the Agreement allows for variation under the condition that it is signed and in writing. In its initial defence, the Applicants relied on the continuous reduction of the commission rates as acceptance of renegotiation. This was accepted at paragraph 54 by way of the Respondent’s conduct. The difference between acceptance by conduct of the reduced commission fee and the acceptance by conduct of the Second Applicant is that the first issue is encapsulated by writing, even if not in the format dictated by clause 15. The first commission reduction is evidenced by the issued invoices, and the second commission reduction was agreed in various emails and WhatsApp conversations between 2022 and 2024, as explained at paragraph 54.

30. The Applicants have not demonstrated that the Respondent conducted itself in a remotely similar way regarding the breach of clause 3.5.4. No documentary evidence was filed to show that the Respondent was aware of or accepting of the breach. Therefore, acceptance of the commission earned from the Second Applicant’s employment is only evidence of the Applicants’ compliance with their obligation under clause 3.1, and not a variation by conduct to circumvent clause 2.3.4 that has capacity to be upheld under Article 31 of the DIFC Contract Law.

31. Article 31 was properly considered in the Judgment for the commission rate reduction but has no relevance to a variation of clause 2.3.4. therefore, the Applicants have failed to identify an error in law that has any real prospect of success on appeal. Hence, this ground is rejected.

Second Ground

32. In its second ground, the Applicants submit that the Judgment was based without a finding that two invoices for undisputed commission were actually delivered by the Respondent to the Second Appellant in accordance with Clause 3.6 of the Agreement.

33. This ground is specifically in reference to invoice WAG-0602-0219 dated 2 June 2022 for the sum of AED 38,561.25 and invoice WAG-0710-1047 dated 10 July 2023 for the sum of AED 26,992.88 (the “Invoices”). It is the Applicants’ position that the Respondent failed to prove that it delivered the Invoices; under clause 3.6, payment is triggered upon receipt of the Invoices. As the Respondent did not deliver the Invoices, non-payment cannot amount to a breach of the Agreement.

34. In reply, the Respondent relies on clause 3.3 of the Agreement to demonstrate that commission fees are payable for as long as the First Client remains a client of the First Applicant, and so payments are required regardless of the Invoices. Further, the Respondent refers to paragraphs 61 and 62 of the Judgment, which dismisses this defence due to the known expectation that payments are made monthly and failure to receive an invoice does not amount to a waiver. The Applicants also failed to provide credible evidence that the invoices were not issued or received nor give an explanation as to why the Applicants’ assumed commission was not owed for two months, therefore the Judgment was correct in its conclusion that this defence was unreliable and contradictory. Therefore, the entitlement of AED 170,554.13 is correct, and this matter is not suitable for appeal.

35. In my view, no legal error has been identified in the Judgment on this ground. As repeated throughout the Judgment and referenced in the first ground of appeal, the obligation to pay commission fees at clause 3.3 survives as an independent clause of the Agreement due to its construction. The Applicants expected to pay commission fees on a monthly basis and provided no reason or explanation as to why it assumed two months should not have been paid. Clause 3.6 relies on clause 3.2:

“3.6 Due date for commission. The due date for payment of Commission shall be as specified in clause 3.2. If the Parties receive payment under any Relevant Contract in instalments (upon written approval of first party) then Commission shall be calculated and paid on such instalments as and when they are received by the Party and on receipt of the required invoice from the other Party.”

36. In this instance, it was not pleaded that the Invoices were issued on a different instalment basis. Therefore, clause 3.2 applies, which states that payable commission shall be agreed in advance and payable as long as the client remains an employee. The arrangement for the Invoices was agreed to be payable on a monthly basis. Therefore, the defence fails, as explained in paragraphs 61 and 62 of the Judgment, the commission entitlement of AED 170,554.13 remains, and so does the triggered entitlement for the liquidated damages of AED 500,000.

37. This ground is rejected on the basis that it carries no prospect of success.

Third Ground

38. The third ground is brought on the alleged erroneous finding that the Second Appellant’s failure to make payment of five invoices for the incorrect amounts can still constitute a breach of the Agreement.

39. The referenced invoices are WAG-0801-1053 (8 January 2024), WAG-0208-1054 (8 February 2024), WAG-0208-1055 (15 March 2024), WAG-0208-1056 (8 April 2024) and WAG-0208-1057 (1 May 2024), of AED 26,992.88 each (the “Five Invoices”).

40. It is the Applicants’ position that as these invoices were issued with the incorrect amount, non-payment cannot constitute a breach.

41. In reply, the Respondent submits that the Judgment correctly dismissed this defence as the obligation to pay commission fees remains regardless of the invoice quantum. At paragraph 62 of the Judgment, it is stated that the Second Applicant made no real attempt to formally dispute the values, opting for non-payment instead, which is a clear breach of the Agreement. Further, the Second Applicant admitted to non-payment in a WhatsApp conversation dated 11 March 2024, recognised at paragraph 59 of the Judgment. The Applicants’ failure to dispute the invoice amounts at the material time, and attempt to misrepresent the Judgment, should not constitute a successful ground of appeal.

42. As I stated throughout the Judgment, it is a breach of the Agreement to fail to pay the commission entitlement. I maintain that the amounts were incorrect, but that does not negate the Applicants’ obligation to pay the correct commission amount. No attempt was made to do so. Therefore, the Applicants breached clauses 3.2, 3.3 and/or 3.6, which triggers both the liquidated damages penalty and maintains the determined commission entitlement quantum of AED 170,554.13. Hence, this ground fails as it carries no prospect of success.

Fourth Ground

43. Finally, the fourth ground is based on the proposed error that the AED 500,000 award for liquidated damages is grossly excessive when compared to the AED 170,554.13 award for outstanding Commission and should be reduced to a reasonable amount in accordance with Article 122(2) of the DIFC Contract Law, which reads:

44. In reply, the Respondents rely on the fact that the AED 500,000 quantum was previously agreed as per Clause 11.5 of the Agreement as a consequence of breach. As the Judgment found that the Applicants were in breach of the Agreement, and that the quantum was unopposed, there was “no reason to disallow granting the full amount” given that the Agreement was lawful, enforceable and entered into voluntarily. The Applicants’ right to damages is under Article 8 of the DIFC Remedies and Damages Law, which was referenced at paragraph 25 of the Judgment, and it was found that no harm must be proven under Article 122 of the DIFC Contract Law as per the Panther Real Estate Development LLC v Modern Executive Systems Contracting [2022] DIFC CA 016 at paragraph 46. Therefore, the Judgment was correct in its conclusion, and the Applicants cannot challenge the agreed quantum for liquidated damages.

45. In my reading of the original Claim and defence, I find that this ground amounts to a new argument and cannot be brought at appellant level. The contractual liquidated damages are referenced at paragraphs 15 and 26 of the defence, and do not contest the quantum, only the entitlement, and fail to reference Article 122(2) of the DIFC Contract Law. This is stated at paragraph 46 of the Judgment. Therefore, this ground is rejected on a procedural basis.

Conclusion

46. None of the four grounds of appeal carry any prospect of success at appellate level; the fourth ground constitutes a new argument which is procedurally barred, and the first three fail on a misinterpretation of the Agreement or the Judgment.

47. In my view, the Judgment correctly found that the Applicants breached the Agreement and correctly recalculated the commission entitlement to AED 170,554.13. as the quantum for liquidated damages was not contested in the original defence, and there was no pleading for the amount to be recalculated under Article 122(2) of the DIFC Contract Law, the original AED 500,000 remains enforceable.

48. As this Appeal Notice is dismissed in its entirety, costs will be awarded to the Claimant on the standard basis, to be assessed by the Court if not agreed.