December 22, 2022 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
ORDER OF JUSTICE SIR JEREMY COOKE
IF YOU, AXEL MANES OR CATHERINE ZHILLA DISOBEY THIS ORDER YOU MAY BE HELD TO BE IN CONTEMPT OF COURT AND MAY BE IMPRISONED, FINED OR HAVE YOUR ASSETS SEIZED.
ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS THE RESPONDENT TO BREACH THE TERMS OF THIS ORDER MAY ALSO BE HELD TO BE IN CONTEMPT OF COURT AND MAY BE IMPRISONED, FINED OR HAVE THEIR ASSETS SEIZED.
UPON the Court entering judgment in favour of the Claimant against the First Defendant on 14 October 2022.
AND UPON the Claimant’s Application CFI-030-2022/16 (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 (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 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 hearing counsel for the parties at the hearing listed before me on 20 December 2022
IT IS HEREBY ORDERED THAT:
Receiver
1. Nathan Stubing of FTI Consulting, Office 1408, Level 14, Burj Daman, Happiness Street, Dubai International Financial Center, be appointed as receiver (the “Receiver”) over all of the shares in Five Dining and as manager of the business of Five Dining.
2. The shares in Five Dining shall be transferred from the Second Defendant, Mr Enzo Manes and Mr Santino Manes to the Receiver.
Powers
3. The Receiver shall be entitled to do the following:
(a) To have himself registered as the shareholder of Five Dining;
(b) To exercise all the powers of the shareholders of Five Dining, including the power to vote the shares and to appoint himself as director of Five Dining and to procure and/or accept the resignation of the Second Defendant as director;
(c) To carry out valuations of the shares and assets of Five Dining;
(d) To manage, operate and carry on the business of Five Dining;
(e) To take possession of the DIFC Restaurant;
(f) To collect in any income or other monies now or hereafter due to Five Dining;
(g) To pay any taxes and duty properly due by Five Dining;
(h) To pay any expenses or costs of Five Dining which in the view of the Receiver should be paid so as to maintain the value of or to preserve any of Five Dining’s assets;
(i) To call for, collect in and keep documents and records of Five Dining including without limitation its bank statements, financial accounts and transaction records as might be held by agents of Five Dining including without limitation its directors, officers, accountants and lawyers;
(j) To execute any documents on behalf of Five Dining;
(k) To investigate and ascertain the whereabouts of all assets of Five Dining, including without limitation any debts, claims or choses in action which Five Dining might have against its directors, shareholders, agents or third parties by reason of any transaction;
(l) To initiate and pursue legal proceedings on behalf of Five Dining;
(m) To deal with any mortgagees, landlords or other third parties with whom Five Dining has or with whom the Receiver considers it advisable for Five Dining to have any contractual or other relationship;
(n) To market, sell, lease, assign or otherwise dispose of the assets of Five Dining;
(o) To market and sell or otherwise dispose of the Shares in Five Dining;
(p) To issue dividends in the ordinary course of business;
(q) To arrange and deal with insurance;
(r) To seek directions from the Court.
4. The Receiver shall, as soon as reasonably practicable, take such steps as are necessary for his appointment as director of Five Dining and to procure and accept the resignation of the Second Defendant as director of Five Dining.
5. For the avoidance of doubt, the Receiver shall not without the consent of the Court close the business of Five Dining.
6. The Receiver shall consult with the First Defendant in relation to the running of the DIFC Restaurant and in respect of any sale of the assets of Five Dining.
7. The Receiver shall give 7 Days’ Written Notice to the First Defendant prior to entering into any contract for sale of the Five Dining Shares or the sale of the business of Five Dining, unless such contract is subject to a condition precedent that it shall not become effective absent an order of the Court approving the same or the prior written consent of the First Defendant and the Claimant, not to be unreasonably withheld.
8. By 4pm on 23 December 2022, the Receiver shall file and serve on the parties a witness statement setting out the details of his professional indemnity insurance.
Cooperation
9. The First and Second Defendants and all other directors and officers of Five Dining shall cooperate without delay with the Receiver so as to enable him to exercise his powers as he may choose and in particular shall provide forthwith all Five Dining’s documents and records to the Receiver and within 3 days of any request, all other information requested by the Receiver.
10. The First and Second Defendants and all other directors and officers of Five Dining shall cooperate without delay with the Receiver so as to effect the transfer to the Receiver of any bank mandates in respect of Five Dining.
11. Within 7 days of this Order the First and Second Defendants and all other directors and officers of Five Dining shall inform the Receiver in writing of the full details of:
(a) All bank accounts and facilities at any financial institution of Five Dining, anywhere in the world;
(b) Any accountants and lawyers who have acted for Five Dining in the last 3 years;
(c) The audited and management accounts of Five Dining for the last 3 years;
(d) Any transaction (including the dates and counterparties, supported by all relevant documentation) carried out in the last 3 years to which Five Dining was a party and under it bought, sold, mortgaged, let out, rented, transferred, lent, borrowed, disposed of, or dealt in any way with assets worth more than USD 10,000;
(e) All payments made to the First and Second Defendants in the last 3 years;
(f) The membership of Five Dining in the last 3 years;
(g) The directors or officers of Five Dining in the last 3 years; and
(h) Details of any existing authorities conferred by Five Dining onto any person and any other authorities conferred within the last 3 years.
Application of monies
12. The Receiver shall apply any dividends, share sale proceeds or other sums received by the Receiver as receiver of the shares in Five Dining (the “Receipts”) as follows:
(a) To pay the fees and expenses of the Receiver in accordance with the terms of the engagement letter produced to the Court up to a maximum total sum of USD 200,000, and thereafter upon terms directed by the Court; and after which
(b) To hold them to the Order of the Court.
Receivers Accounts
13. The Receiver shall prepare and file accounts pursuant to RDC 49.36:
(a) Within three months of the date of this Order; and
(b) At three monthly intervals thereafter until the termination of the appointment; and
(c) Within two months following the termination of his appointment.
Freezing Order against Second Defendant
14. Upon completion of the transfer of all of the shares in Five Dining to the Receiver, the Second Defendant shall be released from the freezing order made against her by Justice Lord Angus Glennie on 18 March 2022 and continued on 25 March 2022.
Liberty to apply
15. The parties and the Receiver shall have liberty to apply.
Costs
16. The First Defendant shall pay the Claimant’s costs of the Claimant’s Receivership Application and the First Defendant’s Receivership Application, such costs to be assessed by the Registrar if not agreed.
17. The First Defendant shall pay the Claimant USD 110,000 on account of the costs ordered at paragraph 16 of this Order, by 4pm on 3 January 2023.
18. The costs of the Second Defendant’s Application shall be costs in the case.
Issued by:
Ayesha Bin Kalban
Acting Registrar
Date of issue: 22 December 2022
At: 3pm