December 27, 2018 court of first instance - Orders
Claim No. CFI 044-2018
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURT OF FIRST INSTANCE
BEFORE H.E. JUSTICE SHAMLAN AL SAWALEHI
BETWEEN
GRAND VALLEY GENERAL TRADING LLC
Claimant/Respondent
and
GGICO SUNTECK LIMITED
and
SUNTECK LIFESTYLES LIMITED
Third Party/Applicant
ORDER WITH REASONS OF H.E. JUSTICE SHAMLAN AL SAWALEHI
UPON the Third Party’s/Applicant’s (hereafter the “Applicant”) Application dated 19 September 2018 (the “Application”), seeking (1) to set aside the Default Judgment pursuant to the Rules of the DIFC Courts (“RDC”) Part 14 and 36.33, (2) a stay of execution of the Default Judgment pursuant RDC 48.22 and 23.13, and (3) should the case not be dismissed for lack of jurisdiction, to be joined as a Defendant to these proceedings pursuant to RDC 20.11;
AND UPON reading the documents submitted in the Court file;
AND UPON hearing the Claimant’s and Applicant’s submissions at the Hearing of 4 December 2018;
IT IS HEREBY ORDERED THAT:
1.The Application to set aside the Default Judgment of Judicial Officer Maha Al Mehairi dated 16 September 2018 is granted and the Default Judgment is set aside.
2. The Applicant’s remaining requests are not determined in this decision.
3. The Claimant shall serve the Claim Form on the Defendant pursuant to Part 9 of the RDC or otherwise make an application as to service within 14 days of the issuance of this Order.
4. The Applicant may apply to be joined as a defendant in this case within 28 days of the issuance of this Order.
5. Costs in the case. Should the Applicant not be joined as a party to this case, it may apply for its costs as to this Application, if not agreed, and such Application may be determined by the Registrar of the DIFC Courts.
Issued by:
Ayesha Bin Kalban
Assistant Registrar
Date of Issue: 27 December 2018
At: 3pm
SCHEDULE OF REASONS
Procedural History
1. The Claimant/Respondent (hereafter the “Claimant”) filed its claim on 13 June 2018 seeking declarations (1) for the dissolution of GGICO Sunteck Limited (hereafter the “Defendant”) in accordance with Article 295(6) and/or Article 298 of the UAE Federal Law No. 2 of 2015 concerning Commercial Companies, (2) interest on the monies the Claimant contributed to the Defendant, and (3) to be entitled to be paid out of the Defendant’s proceeds upon its dissolution its costs of these proceedings. The Claimant originally filed its Claim against the Defendant and two individuals who act as directors of the Defendant company, Mr Kamal Khetan and Mr Sumesh Mishra.
2.The Claimant filed a Certificate of Service on 15 July 2018 stating that it had served the Defendant care of Al Tamimi and Company as registered agent, at Al Tamimi’s DIFC office. On 26 July 2017, the Claimant filed two additional Certificates of Service stating that it had served the two individual directors, Mr Khetan and Mr Mishra, via email. Mr Khetan filed an Acknowledgment of Service on 7 August 2018 contesting the adequacy of service and contesting jurisdiction. On 8 August 2018 the Claimant filed a Notice of Discontinuance seeking to discontinue the Claim against Mr Khetan and Mr Mishra. This Notice was accepted via the Order of Discontinuance issued by the DIFC Courts’ Registry on 9 August 2018 and from then onwards, the Claim remained against the Defendant alone.
3. On 13 August 2018 the Claimant filed a Request for Default Judgment. This request was granted via the Order of Judicial Officer Maha Al Mehairi dated 16 September 2018 (hereafter the “Default Judgment”). On 19 September 2018, Sunteck Lifestyles Limited (hereafter the “Applicant”) being a shareholder, along with the Claimant, in the Defendant company, filed an Application to Set Aside the Default Judgment (hereafter the “Application”). Specifically, the Application seeks an order that:
a. Pursuant to RDC 14.2 and RDC 36.33, the Default Judgment be set aside;
b. Pursuant to RDC 48.22 and RDC 23.13, execution of the Default Judgment is stayed pending final determination of this Application; and
c. In the event that the Claim is not dismissed for lack of jurisdiction pursuant to RDC 4.2, the Applicant be joined as a defendant to these proceedings pursuant to RDC 20.11 solely for the purpose of contesting the jurisdiction of the Court and/or seeking dismissal or stay of the Claim pursuant to Article 13 of the DIFC Arbitration Law.
4. The Claimant and the Applicant provided submissions regarding this Application in advance of the Hearing of 4 December 2018, at which both the Claimant and Applicant presented their arguments. At no time did the Defendant make any filing or otherwise participate in the proceedings. After the Hearing, I reserved my decision regarding this Application.
Background
5. As brief background on this Claim, the Defendant company is a joint venture created pursuant to a Joint Venture Agreement (the “JV Agreement”) entered into by the Claimant and the Applicant for the purpose of commercial development of land in onshore Dubai. The Defendant company is a JAFZA company in which the Claimant and Applicant are both 50% shareholders.
6. The JV Agreement contains a dispute resolution clause providing for the resolution of any dispute between the Claimant and Applicant by an LCIA arbitration seated in Singapore. The governing law is listed as “the applicable federal laws of the [UAE] and the laws applicable in the Emirate of Dubai.”
7. While the Claimant and Applicant began to fulfill their duties pursuant to the JV Agreement, the board of the Defendant company became deadlocked such that the Defendant company has become unable to proceed to continue with the intended project as outlined in the JV Agreement.
8. The Claimant and Applicant were involved in a prior DIFC Courts matter in which the Claimant sought to obtain certain shares of the Applicant which were held in escrow by Al Tamimi and Company (DIFC office) acting as escrow agent pursuant to a separate Escrow Agreement entered into between the Claimant and Applicant in 2015. The matter, CFI-048-2017, resulted in the Applicant obtaining an interim injunction preventing the shares from transferring to the Claimant. The Claimant did not further pursue this claim in the DIFC Courts.
9. After the beginning of these proceedings, the Applicant obtained an anti-suit injunction in the High Court of Singapore (hereafter the “Singapore Injunction”), as supervisory court of the arbitration agreement contained within the JV Agreement, which prohibited the Claimant from continuing its claims in the DIFC Courts. The Claimant contends that it is not bound by the Singapore Injunction as it has not yet been properly served with it.
10. The Applicant has recently commenced arbitration pursuant to the JV Agreement’s arbitration clause.
Summary of Arguments
11. While the Applicant and Claimant have submitted lengthy arguments both in written and oral form, I have included here a summary only to the extent that those arguments are relevant to the below decision.
12. In summary, the Applicant argues that:
a. The Default Judgment must be set aside pursuant to RDC 14.1 as there has not been valid service of the Claim Form on the Defendant, and thus the time for acknowledging service cannot have expired for the purposes of RDC 13.4. This argument rests on the distinction between the escrow agent, being Al Tamimi and Company’s DIFC office and the registered agent, being Al Tamimi and Company’s onshore Dubai office located in the Maze Tower. The Claimant has served the DIFC branch and the Applicant contends that the escrow agent cannot be exchanged for the registered agent as these are two separate entities.
b. Alternatively, the Default Judgment should be set aside, pursuant to RDC 14.2 as there is:
i. good reason for doing so because the underlying dispute between the Claimant and Applicant must be resolved in the agreed arbitral forum before the Defendant is wound up by any order of a UAE Court, the Claimant is seeking to raise a Claim over which the DIFC Courts do not have jurisdiction under the judicial authority law and under Article 13(1) of the DIFC Arbitration Law, the simultaneous winding-up of the Defendant while ongoing arbitration continues would result in abrogation of the arbitration, the matter is being pursued in breach of the Singapore Injunction, and the Claim is an abuse of process by the Claimant, knowingly suing a deadlocked entity without including the other relevant party, the Applicant; and/or
ii. if the Applicant is joined as a defendant, it has a real prospect of success in defending against the Claim as there is no jurisdiction for the DIFC Courts to decide the matter.
c. The Applicant argues that it is entitled to make this Application pursuant to RDC 36.33 on the basis that it is directly affected by the order for dissolution of a company in which it is a 50% shareholder, which was sought in breach of the JV Agreement, and is continued in breach of the Singapore Injunction.1
d. The Applicant argues that should the DIFC Courts find that it is not directly affected pursuant to RDC 36.33, then the Applicant should be joined as a defendant in the claim, pursuant to RDC 20.2, on the basis that such joinder would be desirable.
e. Finally, the Applicant seeks a stay of execution pending this Application.
13. The Claimant contends that the Applicant’s Application is misconceived for a number of reasons:
a.The Claimant argues that its Claim against the Defendant is solely a statutory claim seeking to dissolve the Defendant company due to the fact that the object of the joint venture has been frustrated. The Claimant highlights that the reasons why that object has been frustrated are not material to the Claim. The Applicant has not presented anything contrary to this and remains free to pursue any dispute between the Claimant and Applicant in arbitration.
b. The Applicant does not have locus standi to make an application to set aside the Default Judgment as it is not a party to the Claim and it is not adversely affected by the Default Judgment. The Applicant is not materially affected solely by nature of being a shareholder. The Claimant has not sought to litigate any dispute with the Applicant, any such dispute being wholly separate and distinct from this Claim. Thus, this Application should be dismissed.
c. The Singapore Injunction does not bind the DIFC Courts and furthermore, it has not been properly served on the Claimant.
d. It should be noted that the Applicant failed to make an application prior to the Default Judgment being issued, despite being aware of the Claim and the Claimant’s intention to apply for Default Judgment and having been invited by the DIFC Courts’ Registry to make such an application. Furthermore, the Applicant’s representatives asked the Claimant to withdraw the case against Mr Khetan and Mr Mishra and thus the Applicant should not now be allowed to adopt a second legal strategy towards the case.
e. As to the issue of jurisdiction, the Claimant contends that the jurisdictional gateways under Article 5(A)(1) of the Judicial Authority Law applies to this case. Specifically, the Claimant cites Article 5(A)(1)(c) and (e), stating that the DIFC is where the relevant assets are located and held by the escrow agent and there is jurisdiction pursuant to the Memorandum of Understanding between the DIFC and JAFZA free zones. The Claimant also purports to claim jurisdiction pursuant to Article 5(A)(2).
f. As to service, the Default Judgment records that the proper elements of service were met and thus, the Defendant was properly served. Furthermore, the Applicant cannot contest service that was made on the Defendant. Finally, the two branches in question, Al Tamimi and Company’s DIFC and onshore Dubai branches, are interchangeable for a number of reasons including that they share a PO Box.
14. At the Hearing, both parties reiterated and expanded on their arguments. The relevant points are included in the discussion below.
Discussion
15. First and foremost, I must determine whether the Applicant is entitled to make the Application as a non-party to the dispute. Should the Application be allowed, I must second determine whether or not the Default Judgment should be set aside, making clear reference to Part 14 of the RDC. Finally, I may include guidance about how the case should proceed. I will note that as of this decision, no enforcement of the Default Judgment has been filed and thus there is no need to assess the Applicant’s request for a stay of execution pending this decision.
16. While the Applicant makes its “primary” case that it should be joined as a defendant in the matter, the appropriate issue to consider as a result of the Applicant’s Application is first, whether the Applicant may make the Application and second, whether the Default Judgment should be set aside. This is not an appropriate application through which to join a party nor to contest jurisdiction. Those issues can appropriately be taken up in separate applications with the benefit of full pleadings on the issues. While I appreciate that the Applicant argues that sufficient pleadings have occurred on these matters such that no further argument is necessary and that the Court can make certain findings of its own initiative, I find it is prudent in terms of case and cost management to decline to decide on these additional matters in order to allow the Claimant the full ability to respond.
17. As the Applicant points out, part of the reason for setting aside the Default Judgment may be that there is question as to jurisdiction and joinder, so these arguments are not made without any affect. However, I do not find that these arguments can be said to be pleaded in full and furthermore, the content of the arguments may need to be adjusted depending on the progress of the case after the resolution of this Application.
The Applicant’s Ability to make the Application
18. RDC 36.33 states that “A person who is not a party but who is directly affected by a judgment or order may apply to have the judgment or order set aside or varied.” I accept the principle that the Applicant must show that it is directly affected, in that some interest capable of recognition by the law is materially and adversely affected by the judgment or order. The Applicant is not currently a party to the case and thus would be required to show this in order to proceed with an Application to set aside.
19. The Applicant states that it is clearly directly affected by the Default Judgment that dissolves a company of which it is a 50% shareholder, was obtained in breach of the JV Agreement, and results from a breach of the Singapore Injunction. As the Applicant points out, shareholders are entitled to be heard on an application for a winding-up order due to their interests being directly affected.
20. The Claimant argues that being a shareholder or member of a company is not itself sufficient to show a direct and material interest. Furthermore, even if the Applicant shows a direct interest, the Court can use its discretion to disallow the Application. In fact, the Claimant argues that the Default Judgment protects both the Claimant’s and Applicant’s interests and it reflects the only sensible action such that the Defendant’s liabilities will be discharged, and any excess will be divided between the Claimant and the Applicant. At the Hearing, the Claimant argued that any accruing interest resulting from the Default Judgment would be de minimus compared to the significant liabilities related to the Defendant company. Any dispute as to accruing interest can be resolved in the arbitration along with any other dispute between the Claimant and Applicant; this claim is not about any disputes between the Claimant and Applicant and thus there is no direct affect. The Claimant further pointed out at the Hearing that where a shareholder accepts a share, he accepts that the fortune of his share comes from the company and that the shareholder can only exercise these rights in voting and participation in the company. The share does not give a legal right in lieu of the company itself.
21. At this point it is helpful to look to the operative paragraphs of the Default Judgment itself, which state:
“8. The First Defendant shall be dissolved in accordance with Article 295(6) and/or Article 298 of the UAE Federal Law No. 2 of 2015 concerning Commercial Companies.
9. The Claimant shall be entitled to interest, in accordance with Article 76 of UAE Federal Law No. 18 of 1993 on the Commercial Transactions Law, on monies it contributed to the First Defendant, to be assessed and paid during the course of the First Defendant’s dissolution.
10. The First Defendant shall pay the Claimant the legal costs of this claim, to be assessed by the Registrar, if not agreed.”
22. I note that the Claimant acknowledged during the Hearing that the interest provisions of paragraph 9 of the Default Judgment may affect the Applicant in a de minimus Furthermore, the Claimant stated that dissolution is the “only sensible course . . . such that [the Defendant’s] liabilities may be discharged, and any excess assets be divided between the Claimant and the Applicant,” acknowledging that the Applicant may receive assets as a result of the dissolution.
23. I decline at this time to assess whether the Applicant’s interest in the dispute resolution portions of the JV Agreement are sufficient to allow this Application pursuant to RDC 36.33 as this is a claim between the Claimant and Defendant and this argument is much more relevant to the issue of joinder. Instead, it is clear to me that the Applicant’s interest as a 50% shareholder in a company that has now been ordered dissolved without its input and presumably against its wishes qualifies it as being directly affected by the Default Judgment. Furthermore, the interest and costs provisions of the Default Judgment may increase the Defendant’s potential liabilities, which has a direct and adverse effect on the Applicant.
24. I find it persuasive that the Applicant would be able to be heard on an application for a winding-up order as a shareholder. This Default Judgment is a precursory step towards a winding-up order and thus similar rights and interests are at stake. The Claimant argued that a shareholder shall accept the fortune of his share and exercise rights in voting and participation in the company. However, they are seeking to dissolve that very company and thus deprive the Applicant of the ability to exercise its rights through voting and participation in that company. Thus, I find that the Applicant’s material interest in the Defendant company has been adversely affected by the Default Judgment. The Applicant acknowledges that perhaps dissolution is not the only remedy and it has not had a chance to be heard on other courses of actions. The Claimant insists that dissolution is the only course of action, however I do not see how this can be shown without some comments as to the Applicant and its interest in the Defendant company and the dissolution proceedings.
25. As to the Claimant’s contentions that the Applicant did not timely make this Application and has otherwise acted in a contrary manner, it is not for me now to determine the best and most efficient time or method for the Applicant to seek to intervene in these proceedings. Instead, I am just to assess whether it is appropriate for the Applicant to make this specific Application. I find that it is appropriate at this stage and no alleged delay was prohibitive of the Application itself; this does not mean that delay may not be a factor for consideration in assessing the merits of the Application, pursuant to RDC 14.3.
26. It is important to note that this finding allows only that the Applicant make the Application to Set Aside and is not determinative of the outcome of that Application. However, certainly the degree to which a party is directly and adversely affected by a Default Judgment in a case that it was not party to may have some bearing on there being good reason to set aside that Default Judgment. Thus, I deal with this assessment below.
B. Application to Set Aside the Default Judgment
27. It is imperative to keep in mind the standard of review required in assessing an Application to Set Aside a Default Judgment. RDC Part 14 states in relevant part:
“CASES WHERE THE COURT MUST SET ASIDE JUDGMENT ENTERED UNDER PART 13
14.1
The Court must set aside a judgment entered under Part 13 if judgment was wrongly entered because:
(1) in the case of a judgment in default without an acknowledgment of service, any of the conditions in Rules 13.4 and 13.6 was not satisfied;
(2) in the case of a judgment in default of a defence, any of the conditions in Rules 13.5 and 13.6 was not satisfied; or
(3) the whole of the claim was satisfied before judgment was entered.
CASES WHERE THE COURT MAY SET ASIDE OR VARY JUDGMENT ENTERED UNDER PART 13
14.2
In any other case, the Court may, on such conditions as it sees fit, set aside or vary a judgment entered under Part 13 if:
(1) the defendant has a real prospect of successfully defending the claim; or
(2) it appears to the Court that there is some other good reason why:
a. the judgment should be set aside or varied; or
b. the defendant should be allowed to defend the claim.
14.3
In considering whether to set aside or vary a judgment entered under Part 13, the matters to which the Court must have regard include whether the person seeking to set aside the judgment made an application to do so promptly.”
28. I find that this is not an instance where the Court must set aside the Default Judgment in accordance with RDC 14.1 specifically because the Applicant is not in a position to argue that the conditions of RDC 13.4-6 were not satisfied; those are claims that may properly be made by the Defendant. However, the Applicant’s arguments about service may be relevant in an assessment of “good reason” pursuant to RDC 14.2(2). Similarly, this Default Judgment cannot be set aside pursuant to RDC 14.2(1) or 14.2(2)(b) as those provisions would apply correctly to an application made by the Defendant. Again, the Applicant’s arguments in this regard may be relevant to the “good reason” provision of RDC 14.2(2)(a).
29. Thus, I am left to assess the Application pursuant to RDC 14.2(2)(a) to see if it appears to the Court that there is some other good reason why the Default Judgment should be set aside. In this matter I find that the Applicant, who is permitted to make the Application pursuant to RDC 36.33, has shown that there is good reason why the Default Judgment should be set aside. This has been shown for a number of reasons, namely that:
a. There is question as to the DIFC Courts’ jurisdiction over the matter;
b. There is an interested party that wishes to seek to be joined and heard in the matter;
c. There is an interested party whose interests are directly affected and was unable to participate in the merits of this dispute; and
d. There is some question as to the proper service of the Claim on the Defendant.
30. Furthermore, I have concerns about the DIFC Courts’ ability to grant the remedy sought under UAE Federal Law and I have not yet been convinced by the Claimant that this remedy is permitted in this forum. I understand that the Claimant contends that there are no merits of this dispute and instead it is simply a statutory claim without a relevant dispute. However, as mentioned, there is question as to the availability of the relief request pursuant to the statute in question and furthermore, a Judge should determine whether there are merits to the case in light of the attempts of the Applicant to join the dispute.
31. The Claimant would also argue that the Applicant delayed its Application and could have applied earlier in the dispute, perhaps even before the Default Judgment was issued. Furthermore, the Claimant points to the Applicant’s request that Mr Khetan and Mr Mishra be removed from the Claim. However, seeing as the Applicant made its Application only three days after the Default Judgment was issued, I do not find this alleged delay relevant. Even if the Applicant knew of the proceedings at an earlier time period, it did not know the outcome or the necessity to get involved until the Default Judgment was issued as there was still potential for the case to be withdrawn or dismissed. While the Applicant could have become involved at an earlier point, I find it an equally reasonable course of action that the Applicant would wait until it was necessary to protect its rights rather than potentially waste costs. Once the Default Judgment requiring dissolution of a company in which it had a significant interest was issued, the Applicant deemed it appropriate to act and I do not find it relevant to use any alleged delay against the Applicant at this time.
32. As to the legal strategy of the Applicant in requesting removal of Mr Khetan and Mr Mishra, I do not see how this allegation is relevant to the current Application. Surely the Claimant did not need to seek discontinuance if it had reason to pursue the matter against Mr Khetan and Mr Mishra. The Applicant’s alleged request in this regard, relevant to parties that are not the Applicant itself, seems irrelevant to the Application at hand.
33. I have not given significant consideration to the Singapore Injunction at this time, as I find it unnecessary to the determination of this Application and thus, I do not consider it part of the good reason to set aside the Default Judgment. The Singapore Injunction will surely be relevant to the Claim moving forward and the Claimant and Applicant may argue as such in further pleadings. I acknowledge that the injunction does not bind my actions and furthermore, this decision achieves nothing contrary to the spirit of that injunction.
34. For all of these reasons, I find there is good reason to set aside the Default Judgment and allow further and more full pleadings in this Claim. I understand that both the Claimant and Applicant contend that no further action will come from the Defendant, who is a deadlocked entity unable to give legal direction. Nonetheless, this case will benefit from more complete service, as detailed further below, and the opportunity for the Applicant to make a full case as to its joinder. I do acknowledge the seeming contradictory position of seeking to join a claim in order to contest jurisdiction however, this position must be fully pleaded and heard before the Claimant can move onwards to its sought remedy. The Applicant also has arguments as to Article 13 of the DIFC Arbitration Law in the event that there is jurisdiction over the Claim.
C. Issue of Service of the Claim
35. While I agree with the Claimant that it is not the place of the Applicant to claim failure of service on the Defendant, I cannot rightly fail to scrutinize the details of the Default Judgment upon assessing an Application to Set Aside that Default Judgment. The Claimant seems to argue that because the Default Judgment, which is itself being scrutinized, states that the Claimant has served the claim correctly, it must have been served correctly. This is not the case.
36. The default location for a non-DIFC company to be served, as per RDC 9.19, is “Any place within the DIFC or Dubai where the corporation carries on its activities; or Any place of business of the company within the DIFC or Dubai.” A claim form cannot be served on the defendant’s legal representative (see RDC 9.18) and special permission is required to serve a party located outside of the DIFC on its agent (see RDC 9.46-9.51). Parties may also serve the claim form via a contractually agreed method.
37. However, in this case I find question as to whether the correct location of service was used in serving the Claim Form on the Defendant. Furthermore, there is question as to whether the DIFC branch of Al Tamimi and Company acts as the registered agent for the Defendant or simply the escrow agent. This issue would be scrutinized in the appropriate application to serve on an agent made pursuant to RDC 9.46.
38. Therefore, I must determine, pursuant to my powers under RDC 4.9, that the Claimant must serve the Claim Form on the Defendant in accordance with Part 9 of the RDC within 14 days of the issuance of this Order or else make an application relevant to service within the same time period.
C. Application to Dismiss the Case for Lack of Jurisdiction and to Join the Applicant
39. As I noted earlier, I do not find this the appropriate Application through which to either dismiss this case for lack of jurisdiction nor to join the Applicant as a Defendant. I will note that this case will benefit from more full pleadings on these matters now that the Default Judgment has been set aside and the case now sits at a different juncture. The Applicant may, within 28 days of this Order, make an application to be joined as a defendant in the matter.
Costs
40. At this juncture, it is appropriate to assign costs of this Application to the case, with parties able to make further submissions on costs at the appropriate time. Should the Applicant fail to be joined in the case, it may apply for costs relevant to this Application with such application to be determined by the DIFC Courts’ Registrar.
Conclusion
41. In sum, the Applicant’s Application to Set Aside the Default Judgment is granted, with costs in the case. I decline to determine the remaining issues in the Applicant’s Application.
