Claim No. CFI 092/2024

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF FIRST INSTANCE

BETWEEN

MAG DEVELOPMENT SERVICES LIMITED

Claimant/Applicant

and

(1) THE COLLECTION CLUB RESTAURANT LTD.
(2) LAURENT BUISINE
(3) HUGO VALET

Defendants/Respondents

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

UPON the Claim being filed on 10 December 2024 (the “Claim”)

AND UPON the Claimant’s Application No. CFI-092-2024/8 dated 26 January 2026, seeking Immediate Judgment to Strike Out part of the Defendants’ Defence (the “Application”)

AND UPON the Defendants’ evidence in answer to the Application dated 9 February 2026

AND UPON the Claimant’s email to the Registry dated 13 February 2026, confirming that they do not intend to file any evidence in reply

AND UPON hearing counsel for the Claimant and counsel for the Defendants at the Pre-Trial Review and Application Hearing held before H.E. Deputy Chief Justice Ali Al Madhani on 23 February 2026 (the “Hearing”)

IT IS HEREBY ORDERED THAT:

1. The Claimant’s Application for Immediate Judgment is granted.

2. The Defendants’ Force Majeure defence, insofar as it relates to the obligation to pay rent and other monetary sums under the Lease Agreement, is struck out.

3. Costs of the Application are awarded to the Claimant on the standard basis, to be assessed by the Court by way of party submissions if not agreed.

Issued by:
Hayley Norton
Assistant Registrar
Date of issue: 25 February 2026
At: 2pm

1. This Application is brought by the Claimant for immediate judgment to strike out part of the Defence pursuant to Part 24 of the Rules of the DIFC Courts (“RDC”). In particular, the Claimant seeks to strike out the defence that the Dubai floods, and the financial hardship allegedly suffered by the Defendants as a result, constitutes a force majeure event relieving the Defendants from breaches of their rental payment obligations (the “Force Majeure Defence”) on the basis that it constitutes ‘bad law’ whether heard in an application for immediate judgment or at trial, and so has no merit to succeed in defending the Claim.

2. As a reiteration of the entire factual and procedural background is not relevant in the determination of this Application, I will dispense with this section. Further, my summary of the parties’ submissions will reflect the short, self-contained nature of the Application, and should not be taken as a dismissal or overlook of certain details that may be omitted.

The Legal Test

3. The Court may grant Immediate Judgment under RDC 24.1 where:

4. RDC 24.2 dictates that an application for Immediate Judgment may be based on a point of law, evidence that can be reasonably expected to be available at trial or the lack of it, or a combination of both.

5. The applicable principles are those from the case of Easy Air Ltd v Opal Telecom Ltd [2009] EWHC 339 (Ch) at paragraph 15 which was adopted by the Court of Appeal of E&W in AC Ward & Sons Ltd v Catlin (Five) Ltd [2009] EWCA Civ 1098 at paragraph 24 of the judgment. The only relevant part of the test is the following:

“it is not uncommon for an application for summary judgment to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it. The reason is quite simple: if the respondent's case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case may be. Similarly, if the applicant's case is bad in law, the sooner that is determined, the better. If it is possible to show by evidence that although material in the form of documents or oral evidence that would put the documents in another light is not currently before the court, such material is likely to exist and can be expected to be available at trial, it would be wrong to give summary judgment because there would be a real, as opposed to a fanciful, prospect of success. However, it is not enough simply to argue that the case should be allowed to go to trial because something may turn up which would have a bearing on the question of construction” [emphasis added]

6. Under Articles 82 and 83 of the DIFC Contract Law No. 6 of 2004, a party seeking to rely on force majeure must prove that non-performance was caused by an unforeseeable and unavoidable impediment beyond its control, with the burden of proof on that party:

The Application

7. The Claimant’s submissions can be summarised in two parts;

8. It is also important to note, as stressed at the Hearing, that the Claimant has limited its Application to whether there is a mere obligation to pay only and does not concern itself with the Dubai floods, the effect thereafter, production of documents or the investors; all matters of which the Defendants pleaded at length.

9. The Defendants plead their Force Majeure Defence in the Amended Statement of Defence [107 and 127] as:

“The financial hardship arising from this natural disaster constitutes a force majeure event, which made it impossible for the Defendants to fulfil its [sic.] contractual obligations”

And continue to rely on Article 82 of Law No. 6 of 2004 at [63]:

“This situation engages the principle of frustration of contract, which under DIFC law (see Article 82 of DIFC Law No. 6 of 2004) may relieve parties from performance when obligations become impossible or radically different due to supervening events.”

10. However, it is the Claimant’s position that the Lease Agreement contains no express provision extending force majeure relief to the obligation to pay rent or other monetary sums. The contractual force majeure clause must therefore be construed narrowly and cannot be relied upon to excuse non-payment and nonetheless advances that Article 82 does not protect the Defendants.

11. The Defendants’ obligation to pay rent falls under clauses 6, 7 and 10 of the Lease Particulars, Clause 3 of the Lease Terms and Schedule 1 of the attachment. These clauses dictate that the total rent of AED 50 million should be paid annually at a rate of AED 5 million for 10 years over a total of 40 payments. None of these provisions excuse or justify non-payment under force majeure and only constitute a mere obligation to pay, which was breached.

12. Article 82(1) states that non-performance is only excused by force majeure if the obligation is not a “mere obligation to pay”, and at (2), if the impediment is temporary, which the Dubai floods were, the excuse is only effective for a reasonable period. Therefore, the Defendants’ reliance on Article 82 is purely misguided, as they have failed to cite a specific provision that applies Article 82 to a mere obligation to pay indefinitely.

13. The Claimant’s interpretation of Article 82 is submitted to be supported by H.E. Justice Omar Al Muhairi in DIFC Investments v Mohammed Akbar Mohammed Zia [2017] CFI 001. The dispute concerned the sale of property contracts and the early termination of the sale; as concluded at paragraphs 87-89, the unilateral payment of the total purchase price, which was submitted to have been “frustrated” by the bank in blocking the transfer, constitutes a mere obligation to pay that could not be excused under Article 82(1). Therefore, whether there was a force majeure event or not was irrelevant, as the content of the sale agreement amounted to the purchases as mere obligations to pay by a certain date. This is reflected in the Lease Agreement; the Defendant was required to pay an annual rent of AED 5 million for 10 years, which was not done, and cannot be excuse by a 4-day force majeure event.

14. Finally, the Claimant submits that there is no other compelling reason why this defence should survive until trial. This is a narrow point of law, clearly and easily interpreted with little to no factual dispute to contend with under full evidence. Hence, this matter is suitable for immediate judgment keeping within the overriding objective, and so the two- limb test under RDC 24.1 is satisfied.

15. In the alternative, the Claimant pleads that paragraphs 6, 65, 105 to 140, (c) of the Conclusion at page 20 and part of the third, unnumbered paragraph of the Conclusion at page 19 be struck out use the Court’s case management powers pursuant to RDC 4.16(1) on the basis that this part of the defence discloses no reasonable grounds for defending the Claim for the same reasons as above if the Court considers that an Immediate Judgment is inappropriate.

The Response

16. First, at the Hearing and in its written submissions, the Defendants submit that this Application has been brought extraordinarily late in an attempt to avoid the consequences of their failure in proper disclosure of materials to show that it had taken all appropriate steps to reassure the Defendants that the premises would be fixed post damage caused by the Dubai floods, and that the parked cars in the basement would be protected from future flooding. Further, at the Hearing, the Defendants confirmed that this Application may have adverse case management effects as, in the event the Application was determined in the Claimants’ favour, the Defendants would appeal which may push back the fixed trial dates.

17. On the substantive point, the Defendants’ evidence in answer can be summarised to state that the Force Majeure Defence raises triable issues of fact and law unsuitable for an interlocutory application as a full evidential inquiry is necessary regarding the construction and operation of the Lease Agreement.

18. The Defendants reject the Claimant’s submission of a ‘mere obligation to pay’ as the Lease Agreement should be viewed as a whole comprised of a broader set of reciprocal contractual obligations, over which force majeure provisions are capable of applying.

19. The Defendants define a ‘mere obligation to pay’ conservatively, in that this only refers to the payment of debt or sum of money without consideration. The Lease Agreement is bilateral – rental payment in return for occupation of the named premises which should have been kept in a good and tenantable condition. It is the Defendant’s position that the Claimant failed to do this after the Dubai floods, which means that the Defendants were excused from their rental payments due to a force majeure event that had a knock- on effect on the entire Lease Agreement, as evidenced by competing interpretation of contemporaneous correspondence and allegations of misconduct. Therefore, the Claimant’s submission that this is a narrow point of law is incorrect.

20. Finally, the Defendants submit that the Claimant has failed to demonstrate any other compelling reason as ‘efficiency’ does not constitute a ‘compelling reason’. Instead, a compelling reason is submitted to exist where the case is not suitable for summary determination. In the Order of H.E. Deputy Chief Justice Ali Al Madhani dated 28 January 2026 for this Claim, it was stated at paragraph 23 that a ‘compelling reason’ amounts to ‘circumstances that ought to be investigated’, which means that if there is anything beyond face value that ought to be considered, the matter is suitable for trial. As there are serious disputes of fact and law, the Force Majeure Defence must prevail.

Discussion

21. On an ordinary and objective reading of the Lease Agreement and Article 82, in my view, it is clear that the Defendants’ rent payment amounts to a mere obligation to pay that cannot be protected by force majeure under Article 82.

22. The Defendants largely opt to skirt around the one and only issue raised in the Application by involving the entire Lease Agreement and squashing every obligation arising from it under the 4-day Dubai floods with different proposed outcomes. While stating that the rental obligation is suspended due to financial issues arising from the flooding, the Defendants simultaneously oblige the Claimant to fix and promise to maintain the premises for which they apparently appear to intend to withhold rent. That way, the Defendants attempt to mix the Force Majeure Defence with the rest of its substantive defence, rather than view the pleading in isolation.

23. In their limited engagement, the Defendants endeavour to narrowly define a ‘mere obligation to pay’ to disapply the concept from the Lease Agreement as rental payments are dependent upon the continuous performance of the Claimant. This submission mistakenly conflates the overall nature of the contract with the specific character of the obligation in question. While a lease is undoubtedly a bilateral contract involving reciprocal obligations, it does not automatically follow that every obligation within the lease is conditional upon reciprocal performance or that each obligation loses its independent legal significance. A lessee is not paying in instalments for a service. It is paying a lump sum over an agreed payment plan to occupy a premises. Any failure of a lessor to uphold its own obligations constitutes a separate cause of action.

24. The crucial distinction is not between reciprocal and non-reciprocal contracts, but between obligations to pay money and obligations to perform acts or services. Under DIFC law, force majeure may excuse non-performance where an external impediment prevents the carrying out of an act. However, absent express contractual wording, it does not excuse the payment of money, even when such payment is part of a broader reciprocal contractual framework. Accepting the Defendants’ submission would mean that force majeure, and by effect Article 82, could excuse rent payments whenever the tenant maintains a leasehold interest, thereby undermining the established distinction between monetary and non-monetary obligations and shifting contractual risk in a way not intended by the parties. The obligations are isolated in that context. Therefore, following the precedent set in DIFC Investments, there is a mere obligation to pay.

25. Further, in Laurent and Hugo’s witness statements, as well as in the various correspondence, the Defendants make clear that they are aware of their obligation to pay and continuously cite financial trouble. Here raises the issue of chronology, which seems to be omitted from the response for this Application; rental failures occurred before and after the Dubai floods. As pleaded in the Particulars of Claim and agreed in the Amended Particulars of Defence, the first rental failure was in March 2024, but the floods did not occur until April 2024. Therefore, even if in isolation the Dubai floods may constitute a force majeure event, this event cannot be used to circumvent the obligation under Article 82 as the Dubai floods were not the primary or only reason for failure to pay, even if they caused the cited investors to withdraw after April.

26. In either circumstance – whether the obligation is merely to pay or not – the Defendants do not identify a realistic basis on which the Force Majeure Defence could succeed. Legally, it does not hold. Chronologically, it fails. Factually, the effect is on a future obligation (to fix and maintain).

27. I do not concede that the contractual context of the Lease Agreement is fact-sensitive in this matter. Article 82 is a narrow inquiry in these circumstances as the rental obligation can only exist as a mere obligation to pay. Hence, the Force Majeure Defence fails after the first nine words of Article 82(1). No further investigation is necessary to justify taking this issue to trial.

28. Nonetheless, as per E&W in AC Ward a desire for a fuller factual inquiry does not, of itself, constitute a compelling reason for trial where the defence falls on a pure point of law. The concept of a “compelling reason” is not engaged merely because a defence is fully pleaded or because a party wishes to adduce evidence. It requires identification of a reason why summary determination would be unjust notwithstanding the absence of a real prospect of success. As stated by counsel for the Claimant at the Hearing, the defence is bad law irrespective of whether it is discussed at an interlocutory stage or at trial. Ultimately, the Defendants’ reliance on these provisions is nothing more than an attempt to postpone the resolution of a clear legal question by invoking matters that, even if accepted, would not change the fundamental nature of the obligation to pay rent.

29. On alternative compelling reasons, the Claimant relied on the judgment of Deputy Chief Justice Steel in The Estate of Christos Papadopoulos v Standard Chartered Bank [2017] DIFC DCI 004. At [16] the learned judge set out the applicable principles the Court should consider when assessing whether there is any other compelling reason why an issue should be disposed of at trial:

30. The Defendants contend that force majeure is inherently “fact-sensitive” and, as such, is not amenable to immediate judgment. However, this assertion is overly general and fails to account for the particular circumstances of the present case. While it is true that force majeure may, in some instances, necessitate the examination of factual matters, this is not one of those cases. The alleged impediment put forward by the Defendants do not hinder the actual performance of an act; rather, it pertains exclusively to their capacity to pay rent. It follows that no degree of factual enquiry undertaken at trial could alter the legal nature of that obligation in my assessment. Consequently, there is no justification for a trial where the further facts purportedly requiring exploration would not influence the outcome.

31. The Defendants also submit that the Court ought to exercise caution before striking out a defence. While this is a sound general principle, it does not constitute a compelling reason in situations where the defence is deficient as a matter of law and its continuation serves no legitimate forensic purpose. It would be inappropriate to order a trial simply to afford a party the opportunity to pursue a defence that is fundamentally untenable in law.

32. Moreover, considerations of proportionality and procedural economy strongly militate against allowing the force majeure defence to proceed to trial. Such a course would needlessly extend the proceedings, escalate costs, and divert attention from genuine issues that may warrant determination at trial. The overriding objective of the DIFC Courts is to promote the early resolution of matters that can properly be decided at this stage, without unnecessary delay or expenditure. In summary, the Respondents’ arguments regarding “compelling reason” amount, in essence, to a request for the Court to postpone a legal determination, rather than to identify any genuine reason why immediate disposition would be unjust. Where a defence lacks any real prospect of success and the issue to be determined is a pure question of law upon undisputed facts, there is simply no compelling reason for a trial. The Respondents’ contention that the matter should be reserved for trial due to alleged factual complexity is rejected by the Court. The issue at hand is a narrow and discrete point of law, and its prompt determination best serves the interests of procedural economy and proportionality.

33. The only criticism of the application that can be considered rational concerns its timing, as it was filed about six weeks before the scheduled trial dates. Naturally, this may create a risk of postponing the long-standing trial date if the Defendants decide to appeal my decision. To address such complications, I grant automatic leave to appeal should the Defendants choose to do so, and I further direct that any appeal be handled with urgency, which is a practice the court commonly employs in such cases.

Conclusion

34. In conclusion, the Defendants’ force majeure defence in respect of non-payment of rent presents no factual dispute, relies solely on a legal issue appropriate for immediate determination, and lacks any real prospect of success, and therefore should not proceed to trial.

35. For the reasons set out above, the Claimant’s Application succeeds, and Immediate Judgment is granted.

36. The Defendants’ Force Majeure defence, insofar as it relates to the obligation to pay rent and other monetary sums under the Lease Agreement, is struck out.

37. Costs are awarded to the Claimant on the standard basis, to be assessed if not agreed.