June 02, 2016 Court of Appeal - Orders,Orders
Claim No: CA-004-2016
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURT OF FIRST INSTANCE
BETWEEN
DEYAAR DEVELOPMENT PJSC
Appellant/Judgment Debtor
and
NATIONAL BONDS CORPORATION PJSC
Respondent/Judgment Creditor
ORDER
UPON considering the Appellant’s Grounds of Appeal and Skeleton Argument dated 15 March 2016
AND UPON reading the Enforcement Order of the Registrar dated 18 August 2015 pursuant to (discontinued) enforcement proceedings ENF-030-2015
AND UPON reading the Order of H.E. Justice Omar Al Muhairi dated 3 March 2016
AND UPON hearing Counsel for the Appellant on 25 May 2016
AND UPON reviewing the documents recorded on the Court file
IT IS HEREBY ORDERED THAT:
1.The Appellant’s appeal is allowed.
2. Paragraph 4 of the Enforcement Order made by the Registrar dated 18 August 2015 be set aside.
3. The sum of AED 7,449,804.47 deposited by the Appellant into Court pursuant to the Order of the Chief Justice Michael Hwang dated 10 April 2016 be refunded by the DIFC Courts to the Appellant.
4. There be no order as to costs.
Issued by:
Natasha Bakirci
Assistant Registrar
Date of Issue: 2 June 2016
At: 3pm
REASONS:
1.The Order of the Registrar dated 18 August 2015 was an Interim Enforcement Order (the “Interim Order”) made following two judgments of Justice Sir David Steel dated 19 February 2014 and 23 March 2014 in CFI-014-2010 by which the Appellant was ordered to pay the respondent AED 227,379,430.68 and to pay the costs of the Claimant in CFI-014-2010 and of the Respondent to this appeal.
2. By paragraph 1 of the Interim Order a charge was imposed on the Appellant’s interest in the Units in Sky Gardens and by paragraph 4 thereof the Appellant was ordered pursuant to Part VI(a) Schedule 1 to Practice Direction No. 4 of 2015 to pay an amount equal to 3% of the value of the unpaid Judgments and Orders in the sum of AED 7,449,804.47.
3. Before a hearing to determine whether a final charging order should be made, the Respondent filed a notice of discontinuance of its enforcement claim and consequently the interim charging order was never converted to a final order.
4. Part VI(a) of Schedule 1 to PD No. 4 of 2015 provides:
“(i) no fee will be payable by the party filing for enforcement.
(ii) 3% of the value of the judgment or order is to be settled by the party against whom enforcement has been filed.”
5. An application by the Appellant to set aside paragraph 4 of the Interim Order was dismissed by H.E. Justice Omar Al Muhairi who held inter alia that Part VI(a) of Schedule 1 to PD No. 4 of 2015 did not require that the relevant enforcement proceedings had been concluded by the making of a final order or discharging the interim order.
6. In the view of the DIFC Courts of Appeal, Part VI(a) of Schedule 1 to PD No. 4 of 2015 should be given a purposive construction and, so construed, the enforcement fee only becomes payable after a final enforcement order is made.
7. Since no final enforcement order was made in this case, it follows that the Appellant’s appeal succeeds and paragraph 4 of the Interim Order should be set aside.
