November 24, 2022 COURT OF FIRST INSTANCE - ORDERS
Claim No: CFI 083/2021
IN THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURT OF FIRST INSTANCE
BETWEEN
FIBERTECH FIBRE GLASS PRODUCT TR. LLC
Claimant/ Respondent
and
MINT CREATIVE PRODUCTION LLC
Defendant/ Appellant
ORDER WITH REAONS OF H.E DEPUTY CHIEF JUSTICE ALI AL MADHANI
UPON reviewing the Appeal Notice and exhibits filed by the Appellant on 7 September 2022
AND UPON considering the Order of H.E Justice Ali Al Madhani with reasons issued on 19 August 2022 (the “Order”)
AND UPON considering the Claimant filing a response to the Appeal Notice of the Appellant
AND UPON considering the Rules of the DIFC Courts (the “RDC”)
IT IS HEREBY ORDERED THAT:
1. The Appeal Notice is dismissed in its entirety.
2. The Order issued on 19 August 2022 will be upheld and will not be overturned.
3. The Appellant shall pay the Claimant’s costs of defending this appeal on a standard basis, or assessed by the Registrar, if not agreed.
Issued by:
Delvin Sumo
Assistant Registrar
Date of issue: 24 November 2022
At: 3:30pm
Schedule of Reasons
1. This is an application for permission to appeal the Order issued on 19 August 2022 (the “Appeal Notice”). The Order was granted in favour of the Claimant awarding them an amount of AED 774,692.49 together with simple interest. On the 7 September 2022, the Defendant applied for permission to appeal this Order
2. To grant permission to appeal, it was incumbent on the Defendant to provide this Court with proof demonstrating that there is a real prospect of success or some other compelling reason why the appeal should be heard, RDC 44.19.
3. The Defendant appears to raise two grounds of appeal. The first ground being procedural unfairness which arose from the Claimant’s immediate application filed “prematurely” prior to the case management conference hearing (the “CMC”). The second ground (from paragraph 13 to 32 of the Appeal Notice), although not clearly set out, appears to consist of a repetition of issues and exhibited evidence previously raised in the Defendant’s statement of defence, dated 13 March 2022. These issues were dealt with in great detail in the Order, and no new evidence or compelling argument has been advanced before this Court.
4. My reasons for dismissing this Appeal Notice are two-fold, the Defendant failed to discharge its burden of proof and lack of any reasoning why the Order should be overturned. Second, the Defendant’s failure to provide any cogent explanation for their lack of response to the Claimant’s immediate judgment application, the Defendant halted from expressing their legal position to the immediate judgment application for four months, until the issuance of the Order.
5. I will not repeat the background of the case as it has been dealt with in great detail in the Order. I have read carefully through the evidence submitted by both parties. The fact that I may omit some reference to some arguments does not means that I have overlooked it.
6. I will deal with the substantive issues raised by the Defendant in their Appeal Notice as set out chronologically above under paragraph 3.
7. The first ground in the Appeal Notice is the procedural unfairness which arose from the Claimant’s immediate judgment application. I will consider whether the Defendant had been put on notice in order to conclude if the immediate judgment granted in favour of the Claimant should be upheld or dismissed.
8. On 7 April 2022 at 12:26pm, the Claimant expressly notified the Defendant by way of email of their intention to write to the DIFC Registry to hold the CMC hearing pending the Court’s decision on their upcoming immediate judgment application, Exhibit R15 of the Defendant’s Appeal Notice.
9. On 7 April 2022 at 12:31, the Claimant emailed the Court Registry, copying in the Defendant’s legal representative, indicating that the Claimant had filed an immediate judgment application requesting the Court to hold the CMC hearing pending the Court’s decision on their recent application.
10. On 7 April 2022 at 13:58, the Claimant emailed the Court, copying in the Defendant’s legal representative, attaching the application notice for their immediate judgment.
11. The Defendant takes an issue with the Claimant’s application notice for immediate judgment on two grounds (i) the timing of the application and the (ii) the fact they have not received any further directions from the Court Registry following the Claimant’s request to hold the CMC hearing.
12. In light of the Claimant’s emails, the Defendant cannot simply escape the fact that they were not aware of the immediate judgement filed by the Claimant on 7 April 2022. Further, the rationale for not filing a response to the immediate judgment was based on the premise that it was filed “prematurely”, this does not offer much way of assistance to the Defendant’s Appeal Notice.
13. As indicated under paragraph 10 of the Appeal Notice, the Defendant appears to rely on the lack of directions from the Court’s registry in support of its appeal. The Defendant stated that they did not receive any further directions from the Court Registry relating to the Claimant’s request to hold off on setting a date for the CMC hearing since the Registry’s last email on 4 April 2022. It must be pointed out that the lack of any directions from the Court’s Registry in respect of the CMC hearing does not relieve the Defendant from the requirement to respond to the application for immediate judgment, if indeed the Defendant intended to defend that application.
14. Even if the Defendant was anticipating further directions from the Court’s Registry on how it intends to dispose of the Claimant’s request to hold off the CMC hearing, the Defendant failed to make any enquires with the Court to reserve its position related to the Claimant’s request. In fact, the Defendant only expressed its legal position on the Claimant’s application for immediate judgment four months after the issuance of the Order. Nevertheless, the key issue of this appeal is the Defendant’s failure to respond to the Claimant’s immediate judgment, which has not been addressed in the Appeal Notice.
15. In light of the above circumstances, I am satisfied that the Claimant has put the Defendant on notice and the Defendant had ample of opportunities to respond and defend its position against the Claimant’s application for immediate judgment, instead it held off from doing so until the issuance of the Order, without any reasonable explanation.
16. As mentioned in paragraph 14 of the Order, immediate judgments may be granted where the Claimant can show that a Defendant has no real prospect of successfully defending the claim and that there are no other compelling reasons why the matter should go to trial, by virtue of RDC 24.1. At the time of determining the immediate judgment application, the Court considered the defence and whether there was a reasonable prospect of success, which requires a degree of conviction and not merely arguable. Based on the arguments raised in the statement of defence including the evidence exhibited and the lack of any response to the immediate judgment, the Court considered that there was no realistic of prospect of success.
17. Therefore, this Appeal Notice was the Defendant’s opportunity to convince the Court that there is a real prospect of success or in fact there is any compelling reason the Order should be overturned. Instead, I found the Defendant reiterating the same issues which have been previously raised in the statement of defence and dealt with in great detail in the Order (from paragraph 13 to 32 of the Appeal Notice). Accordingly, in the absence of new arguments or evidence (related to issues such as variations issues, work inspection requests, certification and delivery notes, defects, remeasurement and retention) put forward before this Court which can assist the Defendant in discharging its burden of proof under RDC 44.19, those issues will not be considered again.
Conclusion
18. The Appeal Notice has failed to satisfy the requirements under RDC 44.19. Accordingly, the Appeal Notice will be dismissed in its entirety.
19. The Defendant made the decision to issue this Appeal Notice and as a result the Claimant has incurred costs. the Defendant’s appeal has failed for reasons outlined above. In the circumstances, I consider it fair and reasonable that the Defendant should pay the Claimant’s costs of this appeal.