November 22, 2022 COURT OF FIRST INSTANCE - ORDERS
Claim No. CFI 059/2022
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURT OF FIRST INSTANCE
BETWEEN
BILT MIDDLE EAST LLC
Claimant
and
AL GHANDI CONSOLIDATED CONTRACTORS INTERNATIONAL COMPANY LLC
Defendant
ORDER WITH REASONS OF JUSTICE SIR JEREMY COOKE
UPON considering the Claimant’s Claim Form and Particulars of Claim and the evidence filed by the Claimant
UPON considering the Acknowledgement of Service filed by the Defendant on 23 September 2022 stating an intention to defend the Claim, but filing no evidence in support of any defence
UPON the Court considering that it should determine this matter on paper without the need for a hearing
UPON the Court determining that there is no substantial dispute of fact between the parties and that there is no defence to the Claim
IT IS HEREBY ORDERED THAT:
1. The Defendant immediately pay the Claimant:
a. The seven (7) unpaid instalments in the total sum of AED 12,659,512.60;
b. Interest on each unpaid instalment from its respective due date being as follows:
Amount | Amount Due Date |
1,331,902.52 | 31/01/2022 |
1,331,902.52 | 28/02/2022 |
1,331,902.52 | 31/03/2022 |
1,331,902.52 | 30/04/2022 |
1,331,902.52 | 31/05/2022 |
5,000,000.00 | 30/06/2022 |
1,000,000.00 | 31/07/2022 |
The total interest to be paid by the Defendant at the date of this Order is AED 372,917.59 .
c. Interest on the sum of AED 12,659,512.60 and AED 372,917.59 at the rate of 9% per annum and pro rata from the date of this Order to the date of payment.
2. The Claimant’s costs of these proceedings to be subject of assessment by the Registrar if not agreed.
3. [Here set out the terms of para 1, and subparas a and b of the draft order submitted by the Claimant, but adding to subpara b of the draft Order, following the table of figures, the words:
“The total interest to be paid by the Defendant at the date of this Order is …..”
Please then insert the figure which represents interest up to the date of the issue of the Order. That sum can be calculated by taking the total of AED 195,538.57 in para 23 of the Particulars of Claim and adding AED 1,949.22 for every day since 24 August 2022 (the date of the Particulars of Claim) to the date of the Order and putting that total in the paragraph.
The rest of the Order should then read:
2. “. Interest on the sum of [insert the total of the AED 12,659,512.60 and the total interest calculated to the date of the Order} at the rate of 9% per annum and pro rata from the date of this Order to the date of payment.
3.. The Claimant’s costs of these proceedings to be the subject of assessment by the Registrar if not agreed.”
SCHEDULE OF REASONS
1. There is no dispute that the Claimant and Defendant entered into a Settlement agreement dated 25 October 2021 in respect of arbitration proceedings in Case No. 26472/MDY in the International Court of Arbitration of the International Chamber of Commerce. That Settlement Agreement included, at clause 11, a Governing Law and Jurisdiction clause which provided that the laws of the Dubai International Financial Centre should govern the Settlement Agreement and that any dispute, difference, controversy or claim arising out of or in connection with the Settlement Agreement was to be subject to the exclusive jurisdiction of this Court.
2. By the terms of that Settlement Agreement, the Defendant agreed to pay the Claimant the sum of AED 17,987 122.65 in 11 instalments on the dates set out therein, running from 25 October 2021 to 31 July 2022.
3. There is equally no dispute that the Defendant paid only the first four instalments due on dates between 25 October 2021 and 31 December 2021 and thereafter failed to pay any of the succeeding six instalments due between 31 January 2022 and 30 June 2022
4. By the terms of clause 2.3 of the Settlement Agreement, if the Defendant should pay the first 10 instalments in full and on time, the final instalment of AED 1 million, due on 31 July 2022 would be waived. Because the Defendant failed to make the payments in question, the further sum of AED 1 million fell due on 1 July 2022.
5. In accordance with clause 3 of the Settlement Agreement where an instalment was not paid in full on or before its respective due date, the Claimant could by notice to the Defendant declare that the unpaid instalment was immediately due and payable and, in the event that the Defendant did not pay that instalment within 14 days of the date of notice, the Claimant was entitled to seek an order for immediate judgement in the Courts of the Dubai International Financial Centre. The Claimant did serve such notices in respect of each of the fifth to tenth instalments.
6. Finally, by a letter before action dated 1 July 2022, the Claimant, by its solicitors, claimed the total of the outstanding instalments with interest, including the sum of AED 1 million which was not waived because of the failure to make payment of the earlier instalments. No payment was forthcoming and in accordance with the letter before action, these proceedings were instituted.
7. Whilst the Defendant filed an Acknowledgement of Service stating an intention to defend the claim, it did not submit any evidence to support a defence and the Claimant is entitled to judgement because there are no disputed issues of fact.
8. The Claimant seeks interest pursuant to Articles 17 (1) and 17 (2) of DIFC Law No. 7 of 2005 and relies upon the EIBOR rates prevailing over the relevant period with an uplift of 2% as representing the rate which a commercial borrower would have to pay. The court accepts that as an appropriate rate of interest in respect of the instalments due up to the date of this Order.
9. The Claimant is entitled to interest on the Judgement at 9% per annum pursuant to paragraph 3 of Practice Direction No. 4 of 2017.
10. The Claimant is also entitled to its costs of these proceedings to be the subject of assessment by the Registrar if not agreed.
Issued by:
Delvin Sumo
Assistant Registrar
Date of issue: 22 November 2022
At: 4pm