May 24, 2023 COURT OF APPEAL - ORDERS
Claim No. CA 016/2022
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
In the name of His Highness Sheikh Mohammad Bin Rashid Al Maktoum, Ruler of Dubai
IN THE COURT OF APPEAL
BETWEEN
PANTHER REAL ESTATE DEVELOPMENT LLC
Claimant/Respondent/Cross-Appellant
and
MODERN EXECUTIVE SYSTEMS CONTRACTING LLC
Defendant/Appellant
ORDER WITH REASONS OF THE COURT OF APPEAL
UPON review of the Judgment of the Court of Appeal dated 12 May 2023 (the “Judgment”)
AND UPON reviewing the Appellant's and the Cross-Appellant’s correspondence with the Registry dated 13, 14, 19 and 21 May 2023
AND UPON reviewing the relevant submissions made in the case file
AND UPON reviewing Rule 36.41 of the Rules of the DIFC Courts (“RDC”)
IT IS HEREBY ORDERED THAT:
1. Paragraphs 3 and 4 of the Order shall be deleted and replaced with the following:
“3. The Cross Appeal is dismissed.”
2. Paragraph 73 of the Judgment shall be deleted and replaced with the following:
“73. The judge rejected this claim in so far as it related to additional fees prior to termination. He did so for the reasons set out in relation to Claim 2 (see para. 70 above). So far as concerns such fees incurred after termination, the position is covered by the last sentence of the clause quoted above. The judge accepted this and directed Panther to come up with a reasoned proposal as to how the claims were to be split between the pre and post termination periods (see para 265 of his judgment). Parties have subsequently reached agreement on the appropriate figure. This ground of cross-appeal therefore fails.”
3. Paragraph 81 of the Judgment shall be deleted and replaced with the following:
“81. For the reasons set out above MESC’s Appeal fails and is dismissed. Panther’s Cross Appeal also fails and is dismissed.”
Issued by:
Hayley Norton
Assistant Registrar
Date of issue: 24 May 2023
At: 1pm
SCHEDULE OF REASONS
1. After issuing our judgment in this appeal, the parties helpfully drew our attention to an error in paragraph 73 of the judgment and, consequentially, paragraph 81 of the judgments and paragraphs 3 and 4 of the Order. The court has power to correct such matters under RDC 36.41 and we do so by making the changes indicated in our Order.
2. The Appellant also sought to persuade us to re-open the question of costs. It did so on two bases.
3. First, it was argued that our agreement to make these changes meant that the Cross Appeal had failed completely and, on that basis, there was divided success which should be reflected in the award of costs. We do not accept this analysis. Our decision as to costs did not turn on this issue. We gave our reasons for it in para. 82 of our judgment. Those reasons still hold good despite the change on this particular issue.
4. Secondly, it was submitted that there was no argument before us on the costs issue. That may be so, but it is always open to parties at the close of submissions on appeal to request the court to allow an opportunity for argument on costs after issuing its judgment. No such request was made to us. Having seen the arguments which are now sought to be advanced, or at least a summary of what would be said were we to allow further argument on the issue, we consider that there is nothing in them which materially alters our thinking on the question. There is nothing to bring this aspect of the case within RDC 36.41. Accordingly, our decision as to costs stands.
