September 01, 2023 COURT OF FIRST INSTANCE - ORDERS
Claim No. CFI 025/2023
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURT OF FIRST INSTANCE
BETWEEN
(1) MARKO KRALJ
(2) BARBARA KRALJ
Claimants
and
(1) ROYAL VISION INTELLIGENT FUND LIMITED
(2) ROYAL VISION HOLDING
(3) ROYAL VISION HOLDING LIMITED
(4) ROYAL VISION CAPITAL (DIFC) LIMITED
(5) DANYLO SHAMATAVA
(6) STEFAN FRIEB
Defendants
ORDER OF JUSTICE MICHAEL BLACK
UPON the Request for Default Judgement dated 2 June 2023 (the “Request for Default Judgement”)
AND UPON the Order of H.E. Justice Nassir Al Nasser refusing the Request for Default Judgement dated 14 June 2023 (the “Order”)
AND UPON the Claimants’ Appeal Notice dated 19 July 2023 seeking permission to appeal against the Order (the “PTA”)
AND UPON the Claimants’ Application No. CFI-025-2023/1 dated 22 August 2023 seeking retrospective extension of time to file the PTA (the “Application”)
IT IS HEREBY ORDERED THAT the Application is granted.
Issued by:
Delvin Sumo
Assistant Registrar
Date of Issue: 1 September 2023
At: 3:30pm
SCHEDULE OF REASONS
1. On 17 March 2023, the Claimants Marko Kralj and Barbara Kralj commenced proceeding by Claim Form and Particulars of Claim verified by Statement of Truth against (1) Royal Vision Intelligent Fund Limited, (Formerly) Royal Vision Capital Limited, a company registered in the British Virgin Islands, (2) Royal Vision Holding, an entity carrying on business in the DIFC, (3) Royal Vision Holding Limited, an British Virgin Islands entity carrying on business in the DIFC, (4) Royal Vision Capital (DIFC) Limited, a DIFC company, (5) Danylo Shamatava, and (6) Matjaz Zadravec, (7) Stefan Frieb.
2. The proceedings were issued on the Claimants’ behalf by their Legal Representative, Claire Marie Grainger, acting under a Power of Attorney dated 20 May 2020.
3. In summary, the Particulars of Claim allege:
(1) The Claimants entered into a Capital Investment Management Proprietary Partnership Agreement given Contract No. CiM-MBK-04062017 dated 4 June 2017 executed in the DIFC, being the offices of ‘Royal Vision Holding’ and/or ‘Royal Vision Group’, which comprised the First, Second, Third and Fourth Defendants.
(2) The Agreement stated that the First, Second, Third and Fourth Defendants, carrying on business in the DIFC, in particular the Second Defendant and/or the Third Defendant (as the Executor), would co-invest funds into a “Proprietary Investment Account” managed by the First Defendant.
(3) The Agreement was signed by the Sixth Defendant, Mr Matjaz Zadravec, a shareholder with the Seventh Defendant of the First, Second, Third and Fourth Defendants and a controlling Director of each of those Defendants as well as the party who originally sold the investment opportunity directly to the Claimants.
(4) The Claimants, on the basis of the representations made by the First, Second, Third and Fourth Defendants, collectively referred to as the Royal Vision Group, invested sums with the First, Second, Third and Fourth Defendants.
(5) The First, Second, Third and Fourth Defendants failed to honour the Claimants’ repayment requests.
(6) That the Sixth and Seventh Defendants were guilty of fraud.
(7) In March 2020 the Defendants purported to suspend redemptions and in May 2020 claimed that control of the Group had changed with the Fifth Defendant acquiring substantially all of the shares in the First, Second, Third and Fourth Defendant and becoming their CEO.
(8) In June 2020, the Fifth Defendant indicated that the Claimants would receive a payout of their investment.
(9) On 18 July 2020,23 the Claimants received a Settlement Agreement pre-dated 15 July 2020 by email from the Fifth Defendant in the names of the First, Second, Third and Fifth Defendant in order to settle all disputes against Royal Vision Group on the basis that Royal Vision Group will pay the Claimants the sum of $276,100.00 inclusive of interest, costs and applicable taxes by wire transfer to registered bank account scheduled for 31 July 2020 but not later than 60 days after the signed agreement. and
(10) The Claimants did not sign the Settlement Agreement as it meant that they would withdraw all regulatory complaints and indemnify the Defendants in respect of the same with no guarantee from the Defendants with respect to payment.
4. Accordingly, the Claimants, claimed the payment of the sum of monies owed on 1 February 2020, calculated as USD 278,934 to include accrued interest and damages, legal costs, and expenses.
5. On 2 June 2023, the Claimants issued a Request for Default Judgment on the basis that the Defendants had not filed either an acknowledgment of service, an admission or a defence to the claim and the time for doing so has expired.
6. On 14 June 2023, H.E. Justice Nassir Al Nasser refused the Request for Default Judgment without a hearing on the grounds that the Court was not satisfied that the conditions of RDC 13.22 and RDC 13.23 had been met and the Claimants had not submitted evidence, as required by RDC 13.24, that (i) the claim is one that the DIFC Courts have power to 5 of 6 hear and decide; (ii) no other court has exclusive jurisdiction to hear and decide the claim; and (iii) the claim has been properly served in accordance with RDC 13.22/13.23.
7. On 4 July 2023, the Court requested that the Claimants provide the Registry with their position by 4 pm on 11 July 2023.
8. Ms Grainger on behalf of the Claimants, on 11 July 2023, attempted several times within the timeframe stipulated by the Court, to submit the Claimants’ Notice of Appeal via the online DIFC portal as required. On accessing her account with the DIFC, neither the papers for this case, nor this case, were assigned to her Portal Access and as such the DIFC portal to which her account is linked was not allowing the filling in of all the required fields in order to move to the section to submit the Notice of Appeal on behalf of the Claimants.
9. At 2:20 PM on 11 July 2023, the Claimants notified the Court by email that they wished to appeal the refusal of the Request for Default Judgment and attached their written appeal submittal. They sought guidance on how the documents could be uploaded to Court’s Portal.
10. Notwithstanding that the documents could not be uploaded at 4:59 PM on 11 July 2023 the Claimants received notification by email that the Appeal Notice had been submitted successfully.
11. On searching the registry of Legal Representatives Part I and Part II Ms Grainger found that the firm and her registration was registered twice at numbers 137 and 139 resulting in two portal accesses, one of which she had no knowledge of or access to. She understands, after speaking with Ms. Devlin Sumo of the DIFC Courts' Registrar of Legal Practitioners Department, that the case was incorrectly allocated under the newly created portal and not the account created in 2013, as a result, she did not have access to the case files and did not have any access to the Portal to make any submissions against this case.
12. On 18 July 2023, Ms Grainger emailed the Court asking that the situation be corrected so that the documents could be uploaded. The situation was regularised on 19 July 2023 and the Court Files shows the issue date of the Appeal Notice to be 19 July 2023.
13. RDC 44.10 provides that the appellant must file the appellant’s notice within such period as may be directed by the lower Court; or where the lower Court makes no such direction, within 21 days after the date of the decision.
14. The time for filing the appellant’s notice in the present case, therefore, prima facie expired 21 days after 14 June 2023, i.e. 5 July 2023, however, the Court’s email of 4 July 2023 extended to time to 11 July 2023.
15. It appears to me that the Claimants did file their appellants’ notice in time by their email timed at 2:20 PM given that they could not use the portal and as confirmed by the Court’s email of 4:59 PM on 11 July 2023.
16. If that is not correct, RDC 4.2(1) provides that the Court may extend the time for compliance with any Rule, Practice Direction or Court order (even if an application for extension is made after the time for compliance has expired). I am satisfied that it is appropriate, given the problems with the use of the portal experienced by the Claimants’ legal representative, that time for filing the notice of appeal be extended to the actual date of issue recorded on the Court File, namely 19 July 2023.
17. Either way the appeal notice was filed in time, and I consider that the justice of the situation is met by a declaration to that effect.
18. Accordingly, I order and declare that the Claimants filed their appeal notice in relation to the decision of H.E. Justice Nassir Al Nasser on 14 June 2023 refusing the Request for Default Judgment within time.