November 17, 2014 court of first instance - Orders,Orders
Claim No. CFI 002/2014
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE DIFC COURTS OF FIRST INSTANCE
BEFORE H.E JUSTICE ALI AL MADHANI
BETWEEN
AMJAD HAFEEZ
and
DAMAC PARK TOWERS COMPANY LIMITED
ORDER MADE BY H.E. JUSTICE ALI AL MADHANI
UPON reviewing the Defendant’s Application No. CFI 002-2014/1 to strike out the Claimant’s Claim, and
UPON reviewing the Judgment of Justice Roger Giles of 30 June 2014;
AND UPON hearing all parties on 2 November 2014;
1. This application was lodged by the Applicant/Defendant to strike out the Claimant’s Amended Particulars of Claim on the basis that it did not;
a) comply with the Judgment of Justice Roger Giles of 30 June 2014;
b) comply with RDC 17.43;
c) make any deference to substantiate the allegations; and
d) remains fundamentally deficient and obscure.
2. This is the second application the Defendant has filed to strike out the Claimant’s Particulars of Claim.
3. On 30 June 2014, Justice Roger Giles ordered that the Particulars of Claim dated 29 January 2014 be struck out and granted the Claimant leave to file amended Particulars of Claim within 28 days.
“ There is obscurity as to whether the Claimant’s case is one of pre-contract misrepresentation through the plans part of the contract (or perhaps otherwise), or post-contract misrepresentation by failure to disclose changes in the course of construction, or some other case of fraudulent statements (para 21). Given the contractual entitlement to change the plans, it is particularly necessary to plead the representations with precision and taking that into account. It is also necessary to plead with precision how the representation(s) were made, what made them false and, where deceit is alleged, what it was that made the Defendant’s conduct deceitful. The particulars of claim cannot stand.”4. The Claimant then submitted an amended Particulars of Claim application on 20 July 2014.
5. Although the Claimant has narrowed his claim to misrepresentation; removing the claim of fraudulent misrepresentation and deceit, the claim for misrepresentation is nevertheless deficient for the reasons listed below.
6. There is no clear reference to the Common Law that the Claimant intends to rely on as stated in paragraph one of the amended Particulars of Claim.
7. There remains confusion as to whether the Claimant intends to rely on Article 30 of the Law of Obligations, DIFC Law No. 5 of 2005, as there are conflicting arguments put forth in relation to this Law.
8. Although the Claimant submitted that he is no longer pleading deceit at the beginning of his amended Particulars of Claim, he nonetheless referred to it throughout his submission without proper pleading reference or evidence.
9. The Claimant’s amended Particulars of Claim failed to address the issue of Duty to Disclose as required by Article 29.5 and 29.6 of the Law of Obligations, and against the Defendant’s contractual right to change which is in fact central to the dispute.
10. The Claimant’s amended Particulars of Claim did not sufficiently address core questions as to the issue of misrepresentation such as the taming of misrepresentation and how or to what extent that misrepresentation influenced him to enter into the contract with the Defendant.
11. The Claimant’s amended Particulars of Claim insufficiently addressed the financial or social impact and differences of having an apartment on a floor that contains ten instead of eight apartment units; the absence of which proves difficult to assess remedies.
12. The above said deficiencies remain in the Claimant’s submissions despite the fact that this Court has pointed out the deficiencies before it struck out the previous Particulars of Claim and gave the Claimant the opportunity to plead it sufficiently.
13. I’ve considered the possibility of allowing the current amended Particulars of Claim to proceed to trial in the hope that the above deficiencies would be resolved by the Claimant during the course of the proceeding; however, the statement of the representative for the Claimant during the hearing that the arguments put forth are the best they can come up with makes me doubt whether these deficiencies would be cured at another stage of the proceeding.
14. I now take the view that the Claimant’s amended Particulars of Claim is obscure and failed to comply with the Judgment of Justice Roger Giles of 30 June 2014 and RDC 17.43; and therefore shall be struck out.
15. The Defendant is entitled to an immediate judgment on the basis that the Claimant has no prospect of success based on the amended Particulars of Claim.
16. The Claimant is hereby ordered to pay the cost of the application to be assessed by the registrar if not agreed upon by the parties.
Issued by:
Maha AlMehairi
Judicial Officer
Date of issue: 17 November 2014
Time: 11am
