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CFI 001/2014 Youssef Issa Ward v DAMAC Park Towers Company Limited
August 03, 2015 court of first instance - Orders,Orders
UPON reviewing the Claimant’s Application Notice CFI-001-2014/4 and the supporting documents dated 30 June 2015 seeking to amend the Order of Chief Justice Michael Hwang dated 16 June 2015 (the “Application”);
AND UPON reviewing the Defendant’s reply to the Application dated 7 July 2015
AND UPON reviewing the relevant documents in the case file
IT IS HEREBY ORDERED THAT:
The Application is dismissed.
The Claimant shall pay the Defendant’s costs of the Application, to be assessed by the Registrar if not agreed.
REASONS:
This Application has been made by the Claimant to the CFI when it should have been made to the Court of Appeal, since it refers to an order made by me as a single judge of the Court of Appeal pursuant to RDC 44.149, granting leave to the Defendant (“the Appellant”) to appeal against (a) the judgment of Justice Omar Al Muhairi in the Court of First Instance dated 10 May 2015 as well as (b) his subsequent order dated 25 May 2015 directing the Defendant to return to the Claimant a cheque for AED 448,815 signed by the Claimant in favour of the Defendant. I will accordingly deal with this Application in the same capacity as a single judge of the Court of Appeal
The Application seeks to correct my order granting leave to appeal by an order which, in effect, will rescind that part of my order granting leave to the Applicant to appeal against the order of Justice Omar Al Muhairi dated 25 May 2015. Instead, the Applicant seeks an order fixing that issue for a contested hearing on the question of leave to amend the Grounds of Appeal by adding a prayer for relief against that order.
The argument of the Claimant is that the Defendant had filed a Part 23 application to the CFI for leave to amend its Grounds of Appeal, and I should therefore have ordered a contested hearing of that application since the exceptions allowing a decision by the CFI without a hearing under RDC 23.69 were inapplicable; hence his complaint that I had dealt with it on paper in the same way as the original application for leave to appeal against the judgment dated 25 May 2015 to the Court of Appeal. However, once an application for leave to appeal is lodged with the Court of Appeal, it should be clear that all matters relating to that application for leave (including any application to amend the Grounds of Appeal) should be dealt with by the Court of Appeal. This is clear both pursuant to the overriding objective as well as a matter of common sense. The court that is dealing with an application for leave to appeal must logically be the court to deal with any application to amend the Grounds of Appeal. The fact that an application can be made to the Court of Appeal for a remedy incidental to the appeal pursuant to RDC 44.51 demonstrates that all matters connected with the appeal should be decided by the Court of Appeal. It is also clear that leave to amend the Grounds of Appeal and a stay of the judgment or order appealed against are matters incidental to the appeal; it is not a coincidence that both these matters come within the express authority of a single Judge of the Court of Appeal pursuant to RDC 44.149. There was therefore no administrative error or oversight as the Applicant contends. It also follows that the slip rule is inapplicable in the present case.
In the circumstances the Application is dismissed, with costs to be assessed if not agreed.
