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Claim No: CFI-041-2017

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 FIRST INSTANCE

BEFORE

BETWEEN

AMLAK FINANCE PJSC

Claimant

and

(1) MR NIGEL ANTHONY JOHN HERBERT

(2) MRS DEBORAH JANE REID

Defendants

Hearing: 21 February 2018

Counsel:Nicholas Braganza assisted by Tala Fahoum (Clyde & Co LLP) for the Claimant

Judgment: 4 March 2018

JUDGMENT OF H.E. JUSTICE SHAMLAN AL SAWALEHI

ORDER

UPON considering the Defendant’s Part 8 Claim dated 13 September 2017 seeking to enforce the Final Charging Order of H.E. Justice Omar Al Muhairi dated 11 July 2017 issued in the matter ENF-024-2017 (the “Part 8 Claim”)

AND UPON considering the submissions received from the Claimant

AND UPON being satisfied of the Claimant’s service of the Claim on the Defendants

AND UPON the Defendants failing to file an Acknowledgment of Service or otherwise participate in the proceedings

AND UPON hearing Counsel for the Claimant at the Hearing of 21 February 2018

IT IS HEREBY ORDERED THAT:

1.The Part 8 Claim is dismissed.

2. The parties shall bear their own costs.

Issued by:

Ayesha Bin Kalban

Assistant Registrar

Date of Issue: 4 March 2018

At: 3pm

BACKGROUND

1. The Claimant, Amlak Finance PJSC, originally filed the claim CFI-010-2015 seeking recovery against the Defendants, Mr Nigel Anthony John Herbert & Mrs Deborah Jane Reid (the “Defendants”), for sums owed pursuant to a Property Sale and Purchase Agreement (the “SPA”) by which the Claimant financed the Defendants’ purchase of Unit N2003, Emirates Financial Tower located in the DIFC (the “Property”).

2. As the Defendants did not file an Acknowledgment of Service nor otherwise participate in those proceedings, the Claimant sought and was granted a Default Judgment against the Defendants. By the Order of Judicial Officer Maha Al Mehairi of 7 February 2016, the Application for Default Judgment was granted in the amount of USD 1,176,102.44 (the Default Judgment). The declaratory relief sought by the Claimant was not granted.

3. On 11 May 2017, the Claimant filed an Application for a Charging Order over the Property against the same Defendants, filed under case number ENF-024-2017. After complying with the requirements of the Interim Charging Order granted by Registrar Mark Beer on 22 May 2017, the Claimant received the Order of H.E. Omar Al Muhairi of 11 July 2017 (the Final Charging Order) following a Hearing held on 6 July 2017. The First Defendant, Mr Nigel Anthony John Herbert, did submit some emails to the DIFC Courts in advance of this Hearing showing proof of service of the Interim Charging Order and the prior proceedings of CFI-010-2015.

4. The Final Charging Order required:

a. The Claimant (Judgment Creditor in the ENF proceedings) shall have permission under Rule 9.31 of the Rules of the DIFC Courts (RDC) to serve the Interim Charging Order on the Defendants (Judgment Debtors in the ENF proceedings) addressed at the email 66kips@gmail.com.

b. The Interim Charging Order dated 22 May 2017 was served by the Claimant on the Defendants by alternative means on 25 May 2017.

c. Pursuant to RDC 46.17(3), a final charging order is made over the Property confirming that the charge imposed by the Interim Charging Order shall continue without modification.

d. The Claimant’s costs in connection with the Application ENF-024-2017 shall be paid by the Defendants.

5. On 13 September 2017, the Claimant filed this Part 8 Claim seeking to enforce the Final Charging Order issued in ENF-024-2017 against the Defendants’ equitable interest in the Property, pursuant to RDC Part 46.

6. The Claimant made two Part 23 Applications seeking to serve this current Claim on the Defendants via alternative means on 18 September 2017 and 21 December 2017. Those two Applications were granted by the Order of Judicial Officer Nassir Al Nasser of 20 September 2017 and the Order of Judicial Officer Maha Al Mehairi of 10 January 2018. These Orders allowed service via email, by courier or by leaving a copy at a specific address. The second Order waived the Claimant’s responsibility to serve the Claim via diplomatic channels in the event that the Defendants failed to respond to the alternative service. The Claimant subsequently served the Defendants to the satisfaction of this Court. However, the Defendants have not filed an Acknowledgment of Service nor have they participated in these proceedings in any manner and there is no reason to believe that they will begin to participate with additional notice.

7. Instead, the Claimant proceeded to argue its case at a Hearing before me on 21 February 2018. After hearing the Claimant’s arguments and reading its submissions, I hereby give the following Judgment on this Part 8 Claim.

SUBMISSIONS

8. The Claimant argued in its Part 8 Claim that it now requires a court order for enforcement of the Final Changing Order over the Defendants’ interest in the Property to enforce the Default Judgment.

9. The Claimant argues that the only parties with an interest in the Property are the Defendants and the Claimant. The Claimant argues that title to the Property has vested with the Claimant, however, the official title has not been issued.

10. The Claimant points to a Caveat Registration Form which sought to register the Defendants’ interest in the Property, however this Caveat was not officially registered over the Property.

11. As to the lack of title deed, the Claimant contends that the DIFC Registrar of Real Property has informed the Claimant that without a Court Order, the Defendants’ interest in the Property cannot be removed and no sale can be affected. However, the Court did not choose to grant declaratory relief as to the Caveat and thus the Claimant seeks enforcement against the Property interest.

12. Accordingly, the Claimant seeks to now force a sale of the Property in order to recover its losses and satisfy the Default Judgment.

13. At the Hearing on 21 February 2018, due to the lack of title deed, the Claimant further reiterated its arguments by acknowledging that no title deed has been properly issued for the Property, and that the Caveat was not officially registered against the Property.

14. Based on the above pleaded grounds, the Claimant now seeks an order that:

a. The Claimant enforce the Final Charging Order upon the Defendants’ equitable interest in the Property pursuant to RDC Part 46;

b. In the event that the judgment debt of USD 1,176,102.44 is not paid by the date to be determined by the Court, the Claimant shall be granted the right to sell the Property without further reference to the Court at a price no less than AED 3,500,000.00 (USD 912,806.54), unless that figure is changed by a further Order of the Court;

c. The Claimant shall have conduct of the sale, shall be granted and retain full possession of the Property in order to conduct the sale; and

d. The Claimant shall apply the proceeds of the sale of the Property to the Judgment Debt, and in the event that the Property is sold at a price exceeding the Judgment Debt (together with the costs and expense of effecting the sale), then any difference shall be returned to the Defendants.

15. The Defendants, although served in accordance with direction from the Court, have not provided any submissions in the current case.

DISCUSSION

16. Despite the Claimant’s lengthy attempts to recover on their loan financing the Property, I must dismiss this Claim for insufficient proof of proper title over the Property. The relevant portion of the Rules of the DIFC Courts state:

“Enforcement of Charging Order by Sale

46.24

Subject to the provisions of any enactment, the Court may, upon a claim by a person who has obtained a charging order over an interest in property, order the sale of the property to enforce the charging order.

46.25

The claimant must use the Part 8 procedure.

46.26

A copy of the charging order must be filed with the claim form.

46.27

The written evidence in support of a claim under 46.24 must:

(1) identify the charging order and the property sought to be sold;

(2) state the amount in respect of which the charge was imposed and the amount due at the date of issue of the claim;

(3) verify, so far as known, the debtor’s title to the property charged;

(4) state, so far as the claimant is able to identify:

(a) the names and addresses of any other creditors who have a prior charge or other security over the property; and

(b) the amount owed to each such creditor;

(5) give an estimate of the price which would be obtained on sale of the property; and

(6) if the claim relates to land, give details of every person who to the best of the claimant’s knowledge is in possession of the property.”

17. As the Claimant acknowledged in its submissions and at the Hearing, there is no proper title deed related to the Property listing either the Claimant or the Defendants as owners. The proof of payment by the Claimant to the property developer is not sufficient to prove that the Claimant nor the Defendants are now properly the owners of the Property.

18. Moreover, the Caveat form related to the Defendants’ interest in the Property was not officially recorded by the DIFC Registrar of Real Properties, as required by Article 118 of the DIFC Real Property Law, DIFC Law No. 4 of 2007 as amended by DIFC Law No. 4 of 2012.

19, As was stated by the DIFC Registrar of Real Property via email dated 27 February 2017, “to issue a title deed especially in a strata building . . . will require a transfer of ownership from the developer toward the purchasers or the mortgagee.” In this case, it is clear that this step has not occurred for some reason, which was not made clear to me in the current proceedings.

20. However, without the passage of title from the developer to the Claimant or the Defendants, it seems that the developer still has title to the property, although such title has not been properly issued in official form. At this time, should I order sale of the property without a valid title deed where the Claimant will be hard-pressed to find a buyer willing to purchase in spite of this title issue. Furthermore, there is question as to whether the Claimant has the right to sell the property if the property developer in question retains title.

21. In sum, I am unable to order sale of the Property via the Final Charging Order due to the lack of proof provided that the Defendants have title over the Property. Nor has the Claimant proven title over the Property and could sell if provided with a court order that the Defendants have no valid interest in the Property. Instead, the Claimant will need to look into solving the problem of lack of official title before they can proceed with a sale of the Property.

CONCLUSION

22. As discussed above, there is no ability of this Court to grant the Claimant’s sought relief when there is no proof that the Property is titled to the Defendants. Instead, the problem of lack of title must be resolved before a sale of the Property can properly be affected.

23. Accordingly, the Claimant’s Part 8 Claim is hereby dismissed in full.

24. The parties shall be responsible for their own costs relevant to this Part 8 Claim.