June 16, 2023 court of first instance - Orders
Claim No: CFI 030/2022
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURT OF FIRST INSTANCE
BETWEEN
MAD ATELIER INTERNATIONAL B.V.
Claimant
and
(1) AXEL MANES
(2) CATHERINE ZHILLA
Defendants
and
NATHAN STUBING
Receiver
ORDER WITH REASONS OF JUSTICE SIR JEREMY COOKE
UPON the Court entering judgment in favour of the Claimant against the First Defendant on 14 October 2022 (the “Judgment”)
AND UPON the Claimant’s Application CFI-030-2022/16 dated 7 December 2022 (the “Claimant’s Receivership Application") for the appointment of a Receiver over the shares in Five Dining Corporation Limited (“Five Dining”) and as manager of Five Dining, involving the management of Atelier de Joel Robuchon Restaurant (the “DIFC Restaurant”)
AND UPON the First Defendant’s Application CFI-030-2022/14 dated 9 November 2022 (the “First Defendant’s Receivership Application") for the appointment of a receiver over the shares in Five Dining
AND UPON the Second Defendant’s Application CFI-030-2022/15 dated 10 November 2022 for permission to transfer the shares in Five Dining to the First Defendant and to be released from the freezing order made against the Second Defendant by Justice Lord Angus Glennie on 18 March 2022 and continued on 25 March 2022 (the “Second Defendant’s Application”)
AND UPON the hearing before Justice Sir Jeremy Cooke on 20 December 2022
AND UPON the Order of Justice Sir Jeremy Cooke on 22 December 2022 that, inter alia, Nathan Stubing of FTI Consulting be appointed as receiver (“the Receiver”) over all of the shares in Five Dining and as manager of the business of Five Dining on 22 December 2022 (the “Order”)
AND UPON the execution of an agreement dated 28 April 2023 for Five Dining to sell the DIFC Restaurant to ATRO Hospitality Limited (the “DIFC Restaurant Sale”)
AND UPON the Receiver’s Application No. CFI-030-2022/19 dated 26 May 2023 for further directions following the DIFC Restaurant Sale (the “Application”) as amended by the Receiver’s email of 12 June 2023 sent to the Registry
AND UPON considering the Second, Third, Fourth and Fifth Witness Statements of Nathan Stubing, the Ninth and Tenth Witness Statements of Paul Michael Stothard and the Eighth and Ninth Witness Statements of Axel Manes in relation to the Application (the “Witness Statements”)
AND UPON considering the Rules of the DIFC Courts
IT IS HEREBY ORDERED THAT:
1. The maximum total sum for the fees and expenses of the Receiver to be paid from the Receipts pursuant to paragraph 12(a) of the Order is varied to USD 520,000.
2. Should the DIFC Restaurant Sale not complete in a time frame that the Receiver considers reasonable in the context of continuing the DIFC Restaurant business, and Five Dining be unable to pay the rent due from it on 20 June 2023 and its operating expenses, including employees’ salaries and suppliers, the Receiver is at liberty to close the DIFC Restaurant and apply to the Court for further directions.
3. The Costs of the Application are reserved.
4. Liberty to the Receiver to apply.
Issued by:
Hayley Norton
Assistant Registrar
Date of issue: 16 June 2023
At: 12pm
SCHEDULE OF REASONS
1. It is self evidently in the interests of all concerned in Five Dining that the sale of the restaurant proceed. The Purchaser is apparently unable to complete the transaction by 27 June as required by the agreement of 28 April 2023, but negotiations are in progress with a view to extending the time for completion in consideration of the Purchaser making funds available to Five Dining in the meantime to enable rent and operating expenditure to be paid.
2. On the evidence before the Court, there are, without such additional funds, insufficient funds available to Five Dining both to pay the rent due on 20 June 2023 for more than a limited period of days and operating expenditure in the form of employees’ salaries and sums due to suppliers.
3. An Amendment to the Agreement of 28 April 2023 for the DIFC Restaurant Sale is currently under negotiation, but it is necessary for the Receiver to be able to close the business if this does not occur and the rent and operating expenditure cannot be paid.
4. It is also necessary to make provision for the fees of the Receiver which have been reasonably incurred and I am satisfied that the figure claimed is justifiable.
5. In these circumstances, a limited order is made with liberty to apply for further directions in the light of events as they take place.