Claim No: CFI 014/2010
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURT OF APPEAL
BETWEEN
TAALEEM P.J.S.C.
and
(1) NATIONAL BONDS CORPORATION P.J.S.C.
First Defendant
(2) DEYAAR DEVELOPMENT P.J.S.C.
Second Defendant
ORDER OF JUSTICE SIR DAVID STEEL
UPON reviewing the Second Defendant’s Application Notice CFI-014-2010/22 dated 6 April 2015 seeking an Order that the Second Ruling of Justice Sir David Steel dated 25 March 2015 be stayed pending the outcome of their appeal (the “Application”)
AND UPON reviewing the First Defendant’s response to the Application dated 9 April 2015 and the Claimant’s response dated 19 April 2015
IT IS HEREBY ORDERED THAT:
1. The Application is dismissed.
2. The costs of this Application shall be paid by the Second Defendant to the Claimant and the First Defendant within 14 days of the date of this Order, to be assessed if not agreed by the Registrar.
REASONS
1. This is Deyaar’s application to stay part of the order of Justice Sir David Steel dated 23 March 2015 pending the outcome of Deyaar’s application for leave to appeal the judgment of that date. It is agreed that the application be dealt with on the papers.
2. It is an unsatisfactory application both in form and in substance. As regards form, although the principal basis for the application is that there would be a significant risk of non-recovery of monies paid pursuant to the judgment and order in the event of a successful appeal, no evidence has been filed in support of that contention. It is merely contended in the application notice that the “ability of the First Respondent/Appellant to repay the said monies, should the Appellant be successful, is far from clear.” The burden is on the applicant to put forward good grounds for a stay and thus to establish a real risk of non-recovery. It is not legitimate, as Deyaar purports to do, to assert that “it reserves the right to file additional witness evidence in due course to assist the court”.
3. In any event the application is devoid of merit. The relevant principles as applied by the DIFC Courts have been recently set out in the judgment of Justice Roger Giles In Al Khorafi v. Bank Sarasin CFI-026-2009 dated 20 November 2014:
“21. Unless there is an order otherwise, an appeal does not operate as a stay of any order or decision (RDC 44.4); a fortiori, when permission to appeal has been sought and has not yet been granted. By Article 33 of the DIFC Courts Law 2004 (DIFC Law No 10 of 2004), the Court may stay any decision, order or proceeding “if it considers it appropriate”. There is a general discretion, exercisable in making an order otherwise or while an application for permission to appeal is considered.
4. The approach adopted in relation to CPR 52.7, which is in similar terms to RDC 44.4, was common ground at the hearing of the application. The parties referred to Leicester Circuits Limited v Coates Bros PLC [2002] EWCA Civ 474; Department for Environment, Food and Rural Affairs v Downs [2009] EWCA Civ 257; HTC Corporation v Nokia Corporation [2013] EWCA Civ 1759; and Sunico A/S v The Commissioners for Her Majesty’s Revenue and Customs [2014] EWCA Civ 1108.
5. These cases have differences in expression and emphasis, but the following may be taken from them. Grounds for a stay must be established by the applicant. The successful party at trial has a decision in its favour, and is entitled to the fruits of that decision unless the applicant does so. The outcome on appeal being uncertain, the rival contentions as to the merits are unlikely to be persuasive, and it is a question of justice between the parties until the outcome is known with a view to minimising the loss to the ultimately successful party. An important consideration is the relative risk of injustice in granting or not granting a stay, but it depends on the particular facts.”
6. The parties have referred to various further judgments but they add nothing to this analysis which I adopt. Against that background, the position is as follows:
(a) It is not contended that Deyaar would have any difficulty in paying the sums ordered either now or at any later stage.
(b) The application for leave to appeal has not been determined. Whilst there may be grounds of appeal worthy of consideration, that does not constitute a case for a stay.
(c) The bare assertion that there may be a significant risk of non-recovery in the event of a successful appeal unsupported by any evidence does not establish a ground for a stay.
7. In the result I am wholly unpersuaded that NCB, having a judgment in its favour, is somehow not entitled to the fruits of that judgment. The application is dismissed with costs.
Issued by:
Amna Al Owais
Date of issue: 27 April 2015
At: 4pm
