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Claim No: CFI 048/2017

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF FIRST INSTANCE

BETWEEN

SUNTECK LIFESTYLES LIMITED

Claimant

and

(1) AL TAMIMI &COMPANY LIMITED
(2) GRAND VALLEY GENERAL TRADING LLC

Defendants

ORDER WITH REASONS OF JUSTICE SIR JEREMY COOKE

UPON the Order of Justice Sir Jeremy Cooke dated 29 August 2021 (the “Order”)

AND UPON reviewing the Second Defendant’s permission to appeal application dated 19 September 2021 seeking permission to appeal against the Order (the “Permission Application”)

AND UPON reviewing the Second Defendant’s skeleton argument and grounds of appeal dated 10 October 2021

AND UPON reviewing the Claimant’s written submissions in opposition to the Permission Application dated 31 October 2021

AND UPON reviewing the relevant documents on the Court’s file

IT IS HEREBY ORDERED THAT:

1. The Permission Application is refused.

2. The Second Defendant shall pay the Claimant’s costs of the Permission Application, to be assessed by the Registrar, if not agreed.

Issued by:
Nour Hineidi
Registrar
Date of Issue: 4 November 2021
At: 2.30pm

SCHEDULE OF REASONS

1. The Appeal has no realistic prospects of success and there is no compelling reason for the Appeal to be heard.

2. The Second Defendant (“GV”) wrongly relies on RDC 44.30 as entitling it to an additional period of 21 days to file grounds of appeal and a skeleton argument following the filing of an Appeal Notice on 19 September 2021. The absence of any genuine “impracticability” for such filing is revealed by the fact that the reason given for the alleged impracticability was that the Arbitration Award was to be published on October 7 2021. The award had not yet been published at the time when extensive grounds of appeal and a skeleton were subsequently filed. An extension of time was never sought for such filing. This is, as the Claimant says, an abuse of the process of the Court and would justify the refusal of permission to appeal, regardless of the merits of any appeal, since the Appeal Notice did not raise any ground for an appeal at all, and the later documents were filed in contumely default of the Rules of Court.

3. This default is compounded by GV’s previous failure to take any of the points it made in its applications of 31 March 2021 at any time in the period of over three years since the injunction was granted. There has been no material change in circumstances since the Return Date of 7 November 2017 or the continuation of the injunction in January 2018, when the Second Defendant abjured any argument that there was no serious issue to be tried and only raised a challenge to the jurisdiction of the Court. If GV had wished to argue that there were no serious issues to be tried in relation to the construction of the Escrow Agreement or even that damages were an adequate remedy to the Claimant, with the result that there was no need for the injunction in relation to the Escrow Account, it could have argued such points at that stage. As stated in the Judgment of 29 August 2021 at paragraph 6, no challenge was raised to the strong bona fide case of the Claimant in relation to the Escrow Agreement, nor to the appropriateness of an injunction where the balance of convenience lay in holding the ring and the status quo with the documents remaining in the hands of the First Defendant as Escrow Agent until determination of the parties’ entitlement under it.

4. The claim made by the Claimant in this Court was put on the basis that there was a serious issue to be tried as to whether or not the First Defendant was obliged or entitled to release documents held under the Escrow Agreement on the basis of the terms of it. That was never challenged at any stage prior to 31 March 2021, over 3 years later and was only challenged then on the basis that the Claimant had taken no steps in this Court to pursue substantive proceedings to obtain a final injunction, which showed no such thing but was evidence of the parties’ joint approach that the Joint Venture issues should be resolved in arbitration first. New points have been taken in the grounds of appeal and skeleton argument.

5. It was made plain by the Claimant at the time of seeking the injunction that the Claimant might either seek to establish in this Court that GV was not entitled to delivery of the documents under the Long Stop Date Notice or seek to establish in the Singapore Arbitration that there had never been any valid appointment of a “Contractor”, which could trigger the right to the documents in escrow being released to GV. It was plain at the Return Date and effectively conceded that the operation of the Escrow Agreement and any decision thereon by this Court, might well depend on the outcome of an arbitration under the Joint Venture Agreement, which would again depend on the findings of the arbitrators and the proper construction of the Escrow Agreement. As set out in the Judgment of this Court on 29 August 2021 at paragraphs 9-11, there were, on any view of the construction of the Escrow Agreement, two serious issues which had to be resolved by the Escrow Agent or this Court, if disputed. Other serious issues arose which might or might not be determined in arbitration- see paragraph 12 of the same Judgment.

6. At no time did GV ever seek to raise any of the points it now seeks to argue before March 2021. At no stage did it seek to bring before the Court for final decision any of the issues of construction of the Escrow Agreement that it now seeks to raise as a reason for discharging the injunction.

7. It is not good enough to say that the Claimant did not pursue the Court action to obtain a final injunction when GV itself could, if it had not consented or acquiesced in the arbitration going ahead before any such final determination, have applied to the Court to have the matter heard and sought directions for that to happen.

8. Even if there had been some material change in circumstances constituted by the relief sought in the arbitration by the Claimant, the nature of that relief was plain in November 2018, and it did not need particularisation of the damages in final submissions from the Claimants in the arbitration in September 2020 for GV to know that what was sought was relief under the Joint Venture Agreement as opposed to relief under the Escrow Agreement itself. It was at all times plain in November 2017 – January 2018 that the Court would only decide issues under the Escrow Agreement (unless the parties agreed otherwise) and that, although there might be overlapping issues, it made sense to have the Joint Venture Agreement issues heard first in the arbitration, as the parties, consensually, by their conduct then agreed to do. With an award pending at the time of the August hearing and now due to be issued by the end of 2021, there has been no material change since any of these events which could justify the delay in seeking to have the injunction set aside. GV’s delay in itself was fatal to the 31 March applications.

9. GV’s case as put at the hearing in August did not focus on the serious issues to be tried in relation to the Escrow Agreement and the balance of convenience in holding the ring pending determination of the issues in arbitration and in this Court, with the latter following on from the former. The argument that damages represents an adequate remedy in relation to the Escrow Agreement is a point which could have been taken long ago.

10. If GV is right, that, whatever the arbitrators decide, the shares in the Joint Venture Company will fall to GV, then the arbitrators may so find and GV can come back before this Court and seek a discharge of the injunction, but at present it is not clear that this will necessarily occur and the issues which arise under the Escrow Agreement may in any event require separate resolution.

11. Finally, there was inevitably an issue of case management in August 2021about preserving the status quo and holding the ring for a few more months to await the arbitrator’s decision. In the light of the delay thus far, such a course was plainly sensible, regardless of any other issues and questions of potential dissipation of assets by GV fell to be taken into account in that context, with an arbitration award expected imminently, which it still is.