Claim No: CFI 038/2024

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF FIRST INSTANCE

BETWEEN

DANT INVESTMENT LLC

Claimant

and

OLIVE GREEN HOLDING LTD

Defendant

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JUDGMENT OF H.E. JUSTICE SAPNA JHANGIANI

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UPON hearing Counsel for the Claimant and Counsel for the Defendant at the Trial on 6 March 2025 before H.E. Justice Sapna Jhangiani (the “Trial”)

AND UPON the Order of H.E. Justice Sapna Jhangiani dated 7 March 2025, directing the Claimant to file further authorities by 10 March 2025 and the Defendant to file authorities in reply by 17 March 2025

AND UPON the Registry issuing the direction of H.E. Justice Sapna Jhangiani on 29 May 2025, permitting the Claimant to file a response to the Defendant’s authorities, which was subsequently filed on 9 June 2025

AND UPON a review of the documents recorded on the Court file and the transcript of the Trial

IT IS HEREBY ORDERED, DECLARED AND DIRECTED THAT:

1. The Court declares that the Defendant’s termination of the APA (as defined in the schedule of reasons below) on 25 January 2024 was lawful.

2. The Claimant’s claim against the Defendant for repudiatory breach of the APA is dismissed.

3. The Claimant shall procure the return to the Defendant of the Deposit of USD 400,000 (as defined below), plus any interest earned on the Deposit since it was paid by the Defendant on or around 6 December 2023 by no later than 4pm on Thursday, 17 July 2025.

4. Pursuant to clause 1.4 of the APA, the Defendant shall pay to the Claimant the sum of USD 7,000 in respect of one test flight of the Aircraft (as defined below) which was taken by the Defendant prior to the parties entering into the APA, by no later than 4pm on Thursday, 17 July 2025.

5. The Defendant is entitled to its costs of this matter, to be immediately assessed on the standard basis. The parties may file short submissions of no more than 3 pages on the costs to be awarded to the Defendant based on its schedule of costs by no later than4pm on Thursday, 17 July 2025.

6. Interest shall accrue on all sums awarded in this Order at the rate of 9% per annum from the date of this Order.

7. All other claims for relief are dismissed.

Issued by:
Hayley Norton
Assistant Registrar
Date of issue: 3 July 2025
At: 3pm

SCHEDULE OF REASONS

A. Introduction

1. This case arises from a dispute between the Claimant, as seller, and the Defendant, as purchaser, regarding the purported termination by the Defendant of a sale and purchase agreement (the “APA”) for a used Bombardier Challenger 605 aircraft bearing serial number 5837 (the “Aircraft”).

2. The Claimant contends that the Defendant was not entitled to terminate the APA, and that its purported termination placed it in repudiatory breach of the APA, resulting in the Claimant being entitled to the USD 400,000 deposit the Defendant paid under the transaction (the “Deposit”), plus damages, interest and costs. By Trial, the damages claimed by the Claimant for repudiatory breach were (i) the costs of two test flights on the Aircraft taken by the Defendant, at a cost of USD 7,000 for each flight; and (ii) the fees of Mr Camille Chamoun, the Claimant’s legal consultant in respect of the APA and the transaction contemplated by the APA (who, separately, also represents the Claimant in these proceedings).

3. Whilst the Defendant purported to terminate the APA for the alleged failure of the Claimant to fulfil its conditions precedent under the APA by the “Closing Date” under the APA, the Claimant submits that it complied with its conditions precedent and that the real reason that the Defendant purported to terminate the APA was because it did not have the requisite funds to complete the purchase of the Aircraft.

4. The Defendant contends that it was entitled to terminate the APA, and as a result that it is entitled to a return of the USD 400,000 Deposit, plus costs.

5. This decision is issued following the Trial of the matter, at which Mr Camille Chamoun was the only witness to give evidence, which he gave on behalf of the Claimant. Whilst Mr Chamoun’s evidence was helpful to add background context to this case, I found the contemporaneous documents the most useful and reliable evidence in determining the issues in dispute between the parties.

B. Background

6. On 23 November 2023, the Claimant and Mr Fares Mohd Said Mustafa Abubaker, the sole shareholder of the Defendant, entered into a letter of intent (“LOI”) for the Claimant to sell the Aircraft to Mr Abubaker, as buyer. The price agreed for the Aircraft was USD 9,350,000.

7. The LOI provided for an aircraft purchase agreement to be entered into between the parties, with the buyer being entitled to inspect the Aircraft prior to entering into that agreement. The “Inspections” provision in the LOI provided as follows:

8. On or around 6 December 2023, pursuant to the LOI, the Defendant paid the Deposit of USD 400,000 to Gulf Wings FZE, which was the Escrow Agent for the intended sale, and also the manager of the Aircraft’s operations at the time. Two test flights on the Aircraft were taken by representatives of the Defendant on 1 and 10 December 2023.

9. The APA was entered into by the Claimant with the Defendant (and not Mr Abubaker) on 29 December 2023. Representatives of the Defendant inspected the Aircraft prior to the APA being executed.

10. The important aspects of the APA for present purposes may be summarised as follows:

11. Following execution of the APA, the parties corresponded towards completing the transaction, and it is necessary to set out their correspondence in some detail.

12. On 12 January 2024, Khaldoun Ghalayini of Gulf Wings sent an email to the parties as follows: “[a]s we are expected to do the closing next week, please find attached a brief outline of the steps required to complete leading up to the sale and associated issuance of the bill of sale”. There was some dispute at Trial as to precisely what constituted “Closing” and it is therefore helpful to set out below the outline of steps attached to Mr Ghalayini’s email:

13. Correspondence between the parties and Mr Ghalayani followed relating to the finalisation of various documents such as the “Bill of Sale” (which was attached in draft form to the APA).

14. On 22 January 2024, a phone conversation took place between Mr Chamoun and Mr Thuneibat of the Defendant. Mr Chamoun gave evidence that during the phone conversation, they discussed:

15. On 22 January 2024, Mr Thuneibat wrote to Mr Chamoun as follows:

16. In response to Mr Thuneibat’s email, Mr Chamoun provided the Defendant with the certificate of registration from GCAA, stating that the Claimant would issue a search certificate from the Cape Town International Registry. He explained more about the latter registry, mentioning that the interests registered are recognised in all countries which are parties to the Cape Town Convention (including the UAE), and that this facilitates title search. He mentioned he would “liaise with the owner to get full details of the thirdparty, then draft a letter and send it to you”. This appears to be a reference to Canam Investments LLC.

17. The Claimant tendered in evidence a “Priority Search Certificate” dated 22 January 2024 on the Aircraft from the Cape Town International Registry which had been requested from the Registry by Mr Chamoun, but was not shared with the Defendant prior to the purported termination of the APA. Canam Investments LLC was the previous owner of the Aircraft, and the last transaction on the extract is the sale of the Aircraft to Canam Investments LLC in December 2022. There is no mention on the certificate of the sale from Canam Investments LLC to the Claimant, Dant Investment. The only mention of the Claimant is as the “beneficiary” of the Priority Search Certificate.

18. On 23 January 2024, Mr Chamoun wrote to Mr Thuneibat attaching the trade licence of Canam Investments LLC, and a letter executed by the Claimant requesting the Defendant to pay the balance purchase price to Canam Investments LLC, stating the request was made “due to some financial restructuring”. In the same letter, Mr Chamoun stated:

19. On the same day, Mr Thuneibat sent two emails to Mr Chamoun. In the first, he requested the Claimant’s legal documents and signatory details to match them to the “assignment letter” which had been sent by Mr Chamoun. In the second, he stated:

20. Mr Chamoun responded the same day by email as follows:

21. Following the above email, a call took place on 24 January 2024 between Mr Mohammed Al Bayatie, a representative of the Defendant, and Mr Chamoun. Mr Chamoun gave evidence that, on the call, he and Mr Al Bayatie discussed the assignment from the Defendant to AF General Trading FZ-LLC, and the payment logistics for the transaction ie. whether payment would be made by wire transfer or banker’s cheque, and whether it would be made to the Escrow Agent or to Canam Investments LCC. This does not appear to be disputed.

22. After the call, Mr Chamoun emailed Mr Al Bayatie with a number of documents relating to the assignment of the APA to AF General Trading FZ-LLC. In relation to payment, Mr Chamoun attached the licence of the Claimant and of HDMO New Automobile Trading, both owned by Mr Hassan Mustafa Al Hajj, and stated “Please note that it is crucial to receive from you today. Your decision on how the payment will be done, and to which company so that we can adjust the Consent and Joinder of Escrow Agent move to closing”.

23. Mr Al Bayatie responded the same day as follows:

24. Mr Chamoun responded the same day as follows:

25. Mr Al Bayatie responded as follows by email of the same date:

26. On 25 January 2024, Mr Al Bayatie sent an email to Mr Chamoun, with Mr Ghalayini and Mr Al Thuneibat in copy, stating that the Defendant terminated the APA with immediate effect in accordance with clause 3.16(a) of the agreement. Mr Al Bayatie requested a refund of the Deposit.

27. Mr Al Bayatie attached to his email a letter (the “Termination Notice”) stating that pursuant to clause 3.16(a)(ii), the APA may be terminated by the Purchaser if the conditions specified in clause 1.7(B), Exhibit D and clause 1.4 have not been waived by the Purchaser, or satisfied in all material aspects by the Closing Date. The Termination Notice claimed that, inter alia, the Seller had failed to satisfy the following conditions in clause 1.7(B) and Exhibit D by the Closing Date:

28. The Claimant responded to the Termination Notice by letter of the same date (the “Termination Response”), stating that “the alleged defaults under Closing and Closing Procedures…[were] self-serving justifications for an unlawful termination”. In relation to the Closing date, the Claimant stated:

29. The Claimant’s Termination Response pointed out that, as clear proof that the negotiations were ongoing and “your claim about the lapse of the Closing Date is no more than an unsuccessful attempt to walk away from the APA”, the Claimant had sent various documents to the Defendant on 24 January 2024 with execution instructions. Further, the Defendant had tried to renegotiate the terms of the APA by insisting to make payment by wire transfer to the escrow agent, whereas the parties had agreed at clause 1.3(b) of the APA that payment should be made by Banker’s cheque, and the Seller had already provided the escrow agent with an original executed but undated Bill of Sale which was ready for closing.

30. The Termination Response further stated that:

31. The Termination Response stated that the Claimant had formally requested the Escrow Agent not to release the Deposit to the Defendant.

C. The Court’s Decision

32. A critical issue in dispute between the parties is what date constitutes the “Closing Date” under the APA, and I therefore address this issue first.

What was the contractual “Closing Date” under the APA?

33. Clause 1.6 of the APA sets out the Closing Date under the agreement. The relevant provisions of clause 1 of the APA are set out below:

34. The Claimant contends that the APA provides for a “longstop” closing date of 30 January 2024 under clause 1.3(a) of the APA, which takes precedence over the 15 “Business Days” referred to in clause 1.6. The Claimant submits that clause 1.3(a) comes first in the APA and therefore prevails over clause 1.6. Its position is that the period of 15 Business Days in clause 1.6 was intended to encourage the parties to progress the transaction, but not to serve as a hard deadline.

35. The Claimant’s position is that the Closing Date under the APA was yet to be set at the time of the Notice of Termination, because the Purchaser had not accepted the Aircraft at the Manager’s offices with the in-person presence of representatives of the Seller, Purchaser and Manager. Mr Chamoun’s evidence was that the Aircraft could only be accepted once the Acceptance and Delivery Certificate was issued, and this would typically be completed by the aircraft manager (ie. Gulf Wings FZE) at the time of delivering the Aircraft.

36. The Claimant contends that the closing process in aviation transactions is a practical exercise, often involving a meeting where documents are exchanged and conditions precedent are confirmed. The closing date is only fixed once all conditions precedent are met and a closing session is confirmed, which did not occur in this case. Mr Chamoun’s evidence supports this submission.

37. The Defendant’s position is that the Closing Date pursuant to clause 1.6 of the APA was 22 January 2024, as this was 15 “Business Days” after the APA. The Defendant also relies on the “time is of the essence” clause at 3.14.

38. The Defendant contends that its understanding of the Closing Date was shared by the parties and the Escrow Agent, as shown by the following correspondence:

39. It is not disputed between the parties that in construing the APA I should apply the English law principles of contractual interpretation set out in Rainy Sky SA v Kookmin Bank [2011] UKSC 50 and Arnold v Britten [2015] UKSC 36. In summary, the court is concerned to identify the intention of the parties by reference to what a reasonable person having all the background knowledge which would have been available to the parties would have understood the language in the contract to mean. I must interpret the APA in accordance with business common sense, with regard to all the relevant surrounding circumstances, whilst giving effect to the literal meaning where the language is unambiguous.

40. In my view, the clear meaning of clause 1.6 is that the “Closing Date” is 15 Business Days after the APA, although it is not clear what is meant by the following additional wording in clause 1.6: "and the Purchaser's acceptance of the Aircraft at the Manager's offices with the in-person presence of representatives of Seller, Purchaser and Manager".

41. The Claimant’s interpretation of the second part of clause 1.6 has been referred to above. The Defendant’s interpretation was not entirely clear, but appeared to be that the two parts of Clause 1.6 must be read disjunctively. The Defendant submitted that the Aircraft would be accepted by the Purchaser when the Purchaser’s acceptance certificate was handed over to the Seller on the Closing Date. I construe the Defendant’s argument to be that the second part of the clause explains that “the Purchaser’s acceptance of the Aircraft” will take place at closing. For this meaning to be unambiguous, additional words would need to be included in the clause.

42. In my view, the Claimant’s interpretation of the second part of clause 1.6 does not accord with commercial common sense. The Closing Date could not take place 15 days after the acceptance of the Aircraft, if the acceptance of the Aircraft constitutes the delivery of the Acceptance & Delivery Certificate and transfer of title to the Purchaser, because these are described at clause 1.7(c) as part of the procedure which takes place at closing.

43. I note that there is no reference to a closing meeting in the APA, nor in the outline of steps towards “Closing” which was attached to the email dated 12 January 2024 circulated by Khaldoun Ghalayini of Gulf Wings, the Escrow Agent. Further, evidence as to the market practice in the aviation industry should have properly been the subject of expert evidence, rather than oral submissions and factual evidence. Nevertheless, whilst I may be prepared to accept the Claimant’s position that it is common practice in the aviation industry for a closing meeting to be arranged once the parties’ conditions precedent are in order, it does not follow in any event that the APA could not include a deadline for the “Closing Date” by which closing would take place.

44. I consider that either:

45. In either case, the Closing Date would be 22 January 2024. However, for completeness, I consider that the interpretation set out at (a) above is to be preferred.

46. I note that, as set out in the correspondence from January 2024 referred to above, all of those involved in the transaction contemplated by the APA, including the Claimant’s representative Mr Chamoun, the Defendant, and the Escrow Agent, proceeded on the basis that the Closing Date under the APA was 22 January 2024. The Claimant stated in the Termination Response that “the agreed Closing Date, being Fifteen (15) Business Days post-execution of the Agreement, was at your explicit request”, whilst maintaining that “the closing date has not been formally set by either party”.

47. The Claimant argues that the Closing Date could not be 22 January 2024 because of clause 1.3(a) which provides that the Deposit will only be refundable in a number of specified circumstances, including that “Purchaser is not in breach of [the APA] and Seller fails to timely deliver the Aircraft as required hereunder to the Purchaser by 30/01/2024”. Clause 1.3 does not explicitly provide that the Closing must take place by 30 January 2024, but it is difficult to reconcile with clause 1.6. The Claimant argues that if 30 January 2024 is not a longstop date for “Closing” pursuant to clause 1.3(a), then clause 1.3(a) would be otiose and would have no other purpose.

48. Whilst clauses 1.6 and 1.3(a) do not sit happily together, I am mindful of my firm view expressed above that clause 1.6 provides that the Closing Date will take place on 22 January 2024. Viewing both clauses 1.6 and 1.3(a) in the full context of the APA, I consider that the express reference in clause 1.6 to how the Closing Date is to be calculated (in a clause headed “Closing Date”) is not undermined by the reference in clause 1.3(a) to the date of 30 January 2024.

49. The Closing Date is an important date in the context of the APA and it is critical that it is defined clearly: risk passes to the Purchaser on the Closing Date (clause 1.7(f)); the parties’ warranties take effect on the Closing Date (clauses 2.3 and 2.4); the parties’ liability for taxes is apportioned with reference to the Closing Date (clause 3.13); and the “Closing Date” is relevant to all the circumstances in which the APA may be terminated pursuant to clause 3.16(a). By contrast, the focus of clause 1.3 is to set out the conditions in which the Deposit is to be returned, rather than to define the Closing Date. In the circumstances, in the event of an inconsistency between clauses 1.3 and 1.6 in relation to the “Closing Date”, the definition in clause 1.6 must prevail. Whilst the Claimant argues that clause 1.3(a) would be redundant if the Closing Date was 22 January, this argument applies even more strongly in reverse to clause 1.6, the only purpose of which is to define the Closing Date. I reject the Claimant’s argument that clause 1.3(a) prevails over clause 1.6 because it appears before clause 1.6 in the APA.

Did the Defendant waive any right to compel completion by the Closing Date?

50. The Claimant contends that, even if the Closing Date was 22 January 2024, the Defendant had waived any right to compel completion on that date by its conduct, by continuing discussions with the Claimant on 23 and 24 January and requesting the production of documentation in connection with the conditions precedent.

51. The Claimant asserts that the Defendant elected to affirm the APA by: (a) asking the Claimant to provide further information on payment mechanics for compliance purposes; (b) negotiating the terms of assignment documents to AF General Trading FZ-LLC; (c) discussing and negotiating escrow and joinder consent documents (to join AF General Trading FZ-LLC to the escrow arrangement) and requesting amendments to drafts; and (d) discussing and agreeing the form of payment and payment mechanism to be utilised for the purpose of paying the outstanding amounts due under the APA.

52. The APA includes the following non-waiver provision at clause 3.9:

53. In relation to clause 3.9, the Claimant relies on two English authorities which were provided to the Court after the Trial, and which I address below, before turning to the Defendant’s submissions in response.

54. In Lombard North Central Plc v European Skyjets Ltd 2022 WL, the loan agreement which gave rise to the case included a “no waiver” provision which was similar to clause 3.9 in the APA in providing that no failure (or delay) in exercising any right, power or privilege on the part of the lender “shall operate as a waiver thereof”. A key issue in the case was whether the purported termination notice given by the lender to the borrower on account of the borrower’s default in paying an instalment was effective. Although payment of the instalment was not made on time, as required by the contract, the lender had in a letter allowed the borrower additional time to clear outstanding arrears, with interest charged on late payments.

55. Justice Foxton found at [85] that “[the] decision to assert contractual entitlements arising from the late payments was…consistent only with Lombard deciding to keep the contract in being notwithstanding the late payments…”. The lender had waived the right to terminate for default in payment up to the date of the letter, and the waiver did not result solely from a failure to exercise or delay in exercising a right, but on the positive statements set out in the lender’s letter, and the positive assertion of contractual entitlements (ie. interest) said to arise from late payments (ibid. at [87]).

56. Tele2 International Care Company SA v Post Office Ltd [2009] EWCA Civ 9 concerned a purported termination notice issued by a party after it had continued to perform a contract for almost a year after the breaching party had failed to provide a parent company guarantee as required by the contract. The breaching party argued that the innocent party had elected to affirm the contract by continuing to perform under it, and by accepting performance from the breaching party. The innocent party relied upon the non-waiver clause in the contract, which provided that no delay, neglect or forbearance on the part of any party in enforcing any provision of the agreement would be deemed to be a waiver of any provision, or prejudice any right of that party under the agreement.

57. In Tele2, the Court of Appeal summarised the principles applicable to the doctrine of affirmation of a contract by election, as summarised by Lord Goff in Motor Oil Hellas (Corinth) Refineries SA v Shipping Corporation of India [1990] 1 Lloyd’s Rep 391 (The “Kanchenjunga”), which include the principle that a party will only be held to have elected not to exercise a right if it “has so communicated [its] election to the other party in clear and unequivocal terms” (at 398). The Court held that the no-waiver clause could not prevent a party’s election to abandon a right to terminate from existing; it either exists or it does not. The no-waiver clause did not deal at all with the issue of election of whether or not to exercise a contractual right ([56]). In the circumstances, the no-waiver clause was of no particular help, “except perhaps in terms of emphasising the requirement that an election to abandon a right will only be shown if there was a clear and unequivocal communication of an election to abandon the right to terminate and to continue the [a]greement”.

57. In Tele2, the Court of Appeal summarised the principles applicable to the doctrine of affirmation of a contract by election, as summarised by Lord Goff in Motor Oil Hellas (Corinth) Refineries SA v Shipping Corporation of India [1990] 1 Lloyd’s Rep 391 (The “Kanchenjunga”), which include the principle that a party will only be held to have elected not to exercise a right if it “has so communicated [its] election to the other party in clear and unequivocal terms” (at 398). The Court held that the no-waiver clause could not prevent a party’s election to abandon a right to terminate from existing; it either exists or it does not. The no-waiver clause did not deal at all with the issue of election of whether or not to exercise a contractual right ([56]). In the circumstances, the no-waiver clause was of no particular help, “except perhaps in terms of emphasising the requirement that an election to abandon a right will only be shown if there was a clear and unequivocal communication of an election to abandon the right to terminate and to continue the [a]greement”.

58. The Claimant argues that the Defendant’s conduct between 22 and 24 January 2024 constitutes positive actions affirming the APA, rather than a failure or delay in exercising a right.

59. The Defendant’s position is that, as set out in The Kanchenjunga, waiver requires clear and unequivocal conduct demonstrating an intention to abandon a contractual right. The parties’ discussions on 23 and 24 January relating to document arrangements, payment logistics, compliance clarifications and escrow arrangements were procedural and did not constitute a waiver. The fact that the Termination Notice was issued so promptly after the procedural discussions reinforces that they did not amount to an unequivocal acceptance of late performance, but instead were part of ongoing negotiations.

60. The Defendant seeks to distinguish the two cases relied upon by the Claimant:

61. The Defendant relies on the case of Barratt v Rowe [2011] EWCA Civ 548 in which Rowe had sold a property to Barratt to be developed, and the contract provided at clause 6.2 for either party to rescind the contract “at any time” (prior to completion of the sale) if certain conditions were not satisfied by 7 July 2008. Barratt served notice on Rowe on 25 November 2008 purporting to rescind the contract due to Rowe’s failure to satisfy the conditions of clause 6.2, despite having continued negotiating with Rowe after 7 July 2008 in relation to the sale and the pre-conditions to be satisfied. The Court held that nothing Barratt did between 7 July and 25 November could be construed as a waiver because there was no clear and unequivocal election to affirm the contract.

62. The Claimant argues that Barratt can be distinguished on the following bases:

63. I turn to my decision. The question whether a party with a contractual right to rescind has waived that right by electing to affirm the contract “must depend on an analysis of the terms of the particular contract and the circumstances in which the right has arisen” (Barratt at [76], as cited by the Claimant).

64. In the context of this case, I have difficulty in construing the Defendant’s conduct from 22 to 24 January 2024 as an unequivocal election to affirm the APA. I take into account the factors set out below, whilst addressing the points raised by the Claimant.

65. Clause 3.16(a) provides that the APA may only be terminated in the following circumstances:

66. Whilst it is correct that clause 3.16(a)(ii) recognises the possibility of the Purchaser waiving conditions precedent, this is not relevant to whether the Defendant unequivocally affirmed the APA (and waived its right to terminate it) from 22 to 24 January 2024.

67. The critical question is whether the conduct of the Defendant from 22 to 24 January indicated an unequivocal affirmation of the APA and accompanying waiver of the right to terminate. I am mindful that the negotiations between the Claimant and the Defendant during this time period did not just relate to the satisfaction of the conditions precedent, but also important practical aspects of the transaction, such as payment, and to whom payment would be made.

68. The Claimant contends that the mode of payment was agreed by the Claimant and Defendant prior to the Termination Notice, and that in any event the APA provided for payment by a Bankers’ Cheque. However, Mr Chamoun’s request on 22 January 2024 that payment be made to Canam Investments LLC (which he explained on 23 January 2024 was because it had a “lease financing arrangement” with the Claimant) appears to have upended matters somewhat, and caused a degree of concern to the Defendant. In Mr Chamoun’s own words in his email of 23 January 2024 in which he sought to allay the Defendant’s concerns, this “deviation from the norm might raise some questions, so we want to provide you with a clear explanation”. By the end of 24 January 2024, the Defendant was insisting on payment to an escrow agent, and was keen to receive a certificate from the Cape Town Registry and clearance from Canam Investments in respect of the financing arrangements between Canam Investments and the Claimant.

69. Mr Chamoun’s evidence was that, although he had sent an email to the Defendant on 23 January 2024 where he stated that the Claimant “has a lease financing arrangement with CANAM”, there was in fact no finance lease in place over the Aircraft and it had been proposed for payment under the APA to be made to Canam Investments LLC because the Claimant is a special purpose vehicle and does not have a bank account. Nevertheless, the Defendant’s understanding at the material time was that there was a lease financing arrangement in place, and it is clear from the correspondence that this issue troubled the Defendant.

70. In my view, the Defendant’s conduct in negotiating with the Claimant from 22 to 24 January 2024 does not amount to an unequivocal election to affirm the APA. The facts of this case are more aligned with Barratt than with Tele2 and Lombard, and I do not consider that the Defendant’s participating in negotiations with the Claimant constituted positive steps to affirm the APA.

71. The Claimant rightly points out that clause 3.16(a)(ii) of the APA does not provide that the Purchaser may terminate “at any time”, unlike the relevant termination provision in Barratt. The impact of this must be that the Purchaser must terminate within a reasonable time after the Closing Date. In the context of the matters I have set out above, I consider 3 days was not an unreasonable time frame for the Defendant to elect to terminate the APA, given the negotiations which were ongoing.

72. I should mention that the Claimant’s position at Trial was that it was clear from the Claimant’s disclosure in these proceedings that, at the time of termination, the Claimant had all the documents ready to satisfy the Purchaser’s Conditions Precedent and complete the APA transaction. Whilst the “Priority Search Certificate” dated 22 January 2024 from the Cape Town International Registry indicates that there were no liens over the Aircraft, it did not refer to the sale of the Aircraft from Canam Investments LLC to the Claimant¹ . It therefore did not satisfy the Purchaser’s Condition Precedent at Exhibit D, Part 2, paragraph 6 that “[t]he Seller shall provide evidence (in the form of Cape Town Convention International Registry certificates/extracts) that the Aircraft is free of all Liens and that the Purchaser has acquired full legal and beneficial title to the Aircraft”

73. In relation to the case advanced by the Claimant that the “real reason” the Defendant issued the Termination Notice was because it did not have the requisite funds to complete the purchase of the Aircraft, I find that this is irrelevant. Either the Defendant was lawfully entitled to terminate the APA through the Termination Notice, or it was not. I have found that it was so entitled.

Was the Termination Notice effective to terminate the APA?

74. For the reasons set out above, I find that the Termination Notice was effective to terminate the APA pursuant to clause 3.16(a)(ii) of the APA.

What are the consequences of the Defendant’s termination of the APA?

75. Clause 3.1(b) sets out the consequences of a termination pursuant to clause 3.16(a) of the APA (including clause 3.16(a)(ii)):

76. Clause 1.3(a) also refers to the circumstances in which the Deposit may be refunded to the Purchaser:

77. Following my finding that the Defendant was entitled to terminate the APA on 25 January 2024 pursuant to clause 3.16(a)(ii) of the APA, the Defendant is entitled to the return of the Deposit under clause 3.16(b) and clause 1.3(a)(v). The Defendant is also entitled to any interest earned on the Deposit since it was paid by the Defendant on or around 6 December 2023, pursuant to clause 3.16(b).

Is the Claimant entitled to the cost of any of the two test flights taken by the Defendant?

78. The Claimant claimed the cost of two test flights at a cost of USD 7,000 each as damages for repudiatory breach by the Defendant.

79. The Claimant’s claim for repudiatory breach has been dismissed for the reasons set out in this judgment. However, it is clear from clause 1.4 of the APA that one test flight taken prior to the APA is “at the Purchaser’s expense and risk”. I find that the Claimant has established the cost of each test flight of USD 7,000, and is entitled to be paid the sum of USD 7,000 in respect of one test flight by the Defendant, pursuant to the APA.

Interest

80. The Claimant claims statutory interest on sums awarded to it at the rate of 9% per annum from the date of judgment, in accordance with Practice Direction 4 of 2017 entitled “Interest on Judgments of the DIFC Courts”.

81. I award interest at the statutory rate of 9% per annum from the date of judgment on all sums awarded in this Order.