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CFI 045/2017 Actina Fzco v Standard Chartered Bank
November 07, 2017 court of first instance - Judgements
DEFAULT JUDGMENT MADE BY JUDICIAL OFFICER NASSIR AL NASSER
UPON the Request for Default Judgment (“request”) made by the Claimant on 30 October 2017 in accordance with Rules 13.1(1) and (2) of the Rules of the DIFC Courts (“RDC”), it is found as follows:
The request is not one prohibited by RDC 13.3(1) or (2).
The Defendant has filed an Acknowledgment of Service contesting the Jurisdiction of the DIFC Courts but has failed to file an application to contest jurisdiction and the relevant time for so doing has expired (RDC 12.5(1)).
The Defendant has not: (i) applied to the DIFC Courts to have the Claimant’s statement of case struck out under RDC 4.16; or for immediate judgment under RDC Part 24 (RDC 13.6(1)); (ii) satisfied the whole claim (including any claim for costs) on which the Claimant is seeking judgment; or (iii) filed or served on the Claimant an admission under RDC 15.14 or 15.24 together with a request for time to pay RDC 13.6(3).
The Claimant filed a Certificate of Service in accordance with RDC 9.43 on 3 October2017.
The Claimant has followed the required procedure for obtaining Default Judgment RDC 13.7 and 13.8.
The claim is for a specified sum of money and the request specifies the date by which the whole of the judgment debt is to be paid or the times and rate at which it is to be paid by instalments (RDC 13.9).
The request includes a request for interest pursuant to RDC 13.14 and the Claim Form sets out the calculation of interest in the claim.
The DIFC Courts are satisfied that the conditions of RDC 13.22 and RDC 13.23 (Defendant served outside jurisdiction) have been met.
The Claimant has submitted evidence, as required by RDC 13.24, that (i) the claim is one that the DIFC Courts have power to hear and decide; (ii) no other court has exclusive jurisdiction to hear and decide the claim; and (iii) the claim has been properly served (RDC 13.22/13.23).
ACCORDINGLY IT IS HEREBY ORDERED THAT:
The Request is granted.
The Defendant is in breach of the DFSA Conduct of Business Regulations and has wrongly classified the Claimant as a Client.
The Claimant is a Retail Customer under the FCOB Rules and not a Client.
The Defendant mis-sold the FX-SCB Product to the Claimant who was an unsophisticated investor and not a Client.
The Facility Agreement dated 9 June 2009 was executed under coercion by the Claimant.
There was no facility agreement in place on the date the Defendant communicated to the Claimant that it has purchased and invested USD 3,000,000 on its behalf in the FX-SCB Product.
In the absence of a facility agreement, the terms of the IRS Agreement could not come into effect.
The two deductions of USD 595,053.97 and USD 588,867.78 made by the Defendant were unauthorizedly made by the Defendant.
The Defendant shall pay the Claimant the sum of USD 799,608.50 on account of direct loss suffered by the Claimant that invested USD 1,000,000 and received only USD 200,391.50.
The Defendant shall pay the Claimant the sum of USD 594,500 as compensation for the loss suffered by the Claimant on account of unauthorized deduction by the Defendant pursuant to the terms of the IRS Agreement.
The Defendant shall pay the Claimant the interest at the rate of EIBOR plus 1% on the direct losses suffered amounting to USD 799,608.50 as well the loss of USD 594,500 that was wrongfully deducted from the Claimant’s accounts pursuant to the IRS Agreement from 10 July 2013 until the date of payment.
The Defendant is directed to reimburse the Claimant for legal costs and expenses including court fee, incurred in connection with the preparation and conduct of these proceedings on a full indemnity basis.
