November 07, 2023 COURT OF FIRST INSTANCE - ORDERS
Claim No. CFI 051/2022
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURTS OF FIRST INSTANCE
BETWEEN
ZAYA LIVING REAL ESTATE DEVELOPMENT L.L.C
Claimant/Appellant
and
CHINA STATE CONSTRUCTION ENGINEERING CORPORATION (MIDDLE EAST) L.L.C
Defendants/Respondent
AMENDED ORDER WITH REASONS OF H.E. JUSTICE NASSIR AL NASSER
UPON the Final Costs Certificate of the Registrar Ayesha Bin Kalban dated 31 May 2023 (the “Final Costs Certificate”)
AND UPON the Claimant’s Appeal Notice dated 20 July 2023 seeking permission to appeal the Final Costs Certificate (the “Permission to Appeal”)
AND UPON the Claimant’s Application No. CFI-051-2022/3 dated 26 July 2023 seeking retrospective extension of time to file its Permission to Appeal (the “EOT Application”)
AND UPON the Amended Order of Registrar Ayesha Bin Kalban dated 21 August 2023 dismissing the Permission to Appeal and the EOT Application (the “Order”)
AND UPON the Claimant’s Appeal Notice dated 25 August 2023 seeking permission to appeal the Order (the “Permission Application”)
AND UPON Defendant’s submissions filed in response to the Permission Application dated 15 September 2023 (the “Defendant’s Submissions”)
AND UPON the Claimant’s response to the Defendant’s Submissions dated 6 October 2023
AND UPON reviewing all relevant material in the case file
AND UPON reviewing 44.19 of the Rules of the DIFC Courts (the “RDC”)
IT IS HEREBY ORDERED THAT:
1. The Permission Application is denied.
2. The Claimant shall pay the costs of the Defendant’s costs of the Permission Application, to be assessed by the Registrar if not agreed.
Issued by:
Delvin Sumo
Assistant Registrar
Date of issue: 2 November 2023
Date of re-issue: 7 November 2023
Time: 4pm
SCHEDULE OF REASONS
1. This is an Appeal Notice brought by the Claimant in this Claim (the “Permission Application”), seeking permission to appeal against the Amended Order of Registrar Ayesha Bin Kalban dated 21 August 2023 (the “Order”).
2. The background of this Claim does need not be repeated in the course of this decision.
3. In accordance with Rule 44.19 of the Rules of the DIFC Courts (the “RDC”), permission to appeal may be granted in limited situations, being when there is a real prospect that the appeal would succeed, or where there is another compelling reason why the appeal should be heard.
4. In review of the Permission Application, I find that the Permission Application does not meet the requirements under RDC 44.19. I briefly set out my reasons below.
5. The Claimant submits that the Order is wrong in law and/or in mixed questions of law and fact on the basis that the Registrar erred in denying the Appellant’s Permission to Appeal and EOT Application in the Order. In particular, the Claimant refers to a parallel proceeding in the Dubai Courts and DIFC Courts, as well as unforeseen circumstances, caused the Permission to Appeal to not be filed within the specified timeframe and crucial developments occurred in these parallel proceeding, compelled the Appellant to defer filing the appeal.
6. I find that the decision of the Registrar is in relation to the Final Cost Certificate, which is determined by the DIFC Courts due to previous hearings and orders issued, and which is not related to or in connection with any proceedings with the Dubai Courts.
7. The Claimant also submits that the Registrar failed to give any rationale or reasons for denying the Permission to Appeal and EOT Application.
8. The Registrar denied the EOT Application, which is a Case Management decision. Such orders are at the discretion of the Judge or Registrar. Following the denial of EOT Application, the Permission to Appeal automatically gets denied as it is considered to be filed out of time.
9. The Claimant also submits that the Final Costs Certificate and the Order were issued by an incorrect forum, namely, the Court of Appeal instead of the Court of First Instance.
10. This might have been a typographical mistake which can be amended and does not lead to a real prospect of success or a compelling reason to grant the Permission Application.
11. Therefore, in light of the Claimant’s submission, I am of the view that the Permission Application does not have a prospect of success and I also do not find a compelling reason for the appeal to be heard, and therefore the Permission Application does not satisfy the requirements of RDC 44.19.
12. The Claimant shall bear the Defendant’s costs of the Permission Application to be assessed if not agreed.
