January 16, 2019 court of first instance - Orders
Claim No. CFI-029-2018
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURT OF FIRST INSTANCE
BETWEEN
THE INDUSTRIAL GROUP LTD
Claimant/Respondent
and
ABDELAZIM EL SHIKH EL FADIL HAMID
Defendant/Appellant
ORDER WITH REASONS OF JUSTICE SIR RICHARD FIELD
UPON reviewing Appeal Notice dated 6 November 2018 (“The Application”) seeking permission to appeal the decision dismissing the Defendant’s Application to set aside the Default Judgment of Judicial Officer Nassir Al Nasser dated 30 July 2018
AND UPON reviewing Appellant’s evidence in support to the Application dated 6 November 2018
AND UPON reviewing Appellant’s Skeleton Arguments dated 27 November 2018
IT IS HEREBY ORDERED THAT:
The Application for permission to appeal is denied.
Issued by:
Ayesha Bin Kalban
Assistant Registrar
Date of issue: 16 January 2019
Time: 9am
SCHEDULE OF REASONS
1.The Defendant seeks permission to appeal the order dismissing his application to have set aside the judgment in default of defence entered against him by Judicial Officer Nassir Al Nasser.
2. The Defendant’s grounds of appeal are to be derived (with some difficulty) from his Notice of Appeal and with less difficulty from the skeleton argument produced by his counsel.
3. No skeleton argument in opposition has been filed by the Claimant/Respondent within the time period set by RDC 44.14.
4. In my judgment, none of the arguments raised in the Notice of Appeal or the skeleton argument has a real prospect of success as required by RDC 44. There is no doubt at all that in reality the Claimant/Respondent relied on the failure of the Defendant to serve a Defence as the ground for seeking judgment in default. The fact that Defendant may have confusingly stated that the Defendant had also failed to serve an Acknowledgement of Service in the Request for Default Judgment therefore in no way misled the Judicial Officer or the CFI since judgment in default of a defence can only be obtained if the defendant has served an Acknowledgment of Service but not a Defence, see RDC 13.5(1).
5. Further, any challenge to the CFI’s conclusion that no part of the Defendant’s counterclaim constituted a set-off against the claim for which judgment in default had been given has no real prospect of success, so that any argument based on an assertion that the quantum of the counterclaim overtopped the judgment sum also has no real prospect of success.
