October 14, 2020 court of first instance - Orders
Claim No. CFI 066/2020
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURT OF FIRST INSTANCE
BETWEEN
CREDIT SUISSE (SWITZERLAND) LIMITED
Claimant
and
(1) ASHOK KUMAR GOEL
(2) SUDHIR GOYEL
(3) MANAN GOEL
(4) PRERIT GOEL
Defendants
ORDER OF JUSTICE WAYNE MARTIN
UPON the Defendants’ application dated 7 October 2020 (the “Application”) seeking a stay of time to the timelines mentioned in the Order of Justice Wayne Martin issued on 1 October 2020 (the “Order”)
AND UPON reviewing the Claimant’s submissions in response filed on 13 October 2020
AND UPON reviewing all documents recorded on the Courts’ file
IT IS HERBY ORDERED THAT:
1. The Application is dismissed.
2. The time for compliance with the Order relating to the provision of information with respect to assets is extended until 4pm on Wednesday 21 October 2020.
3. The Defendants shall pay the Claimant’s costs associated with this Application, to be assessed by the Registrar if not agreed by the parties, within 14 days of assessment or agreement.
Issued by:
Nour Hineidi
Deputy Registrar
Date of issue: 14 October 2020
At: 11.30am
SCHEDULE OF REASONS
1. On 13 September 2020, following a successful appeal to the Court of Appeal, a judge of this court made a worldwide freezing order against the defendants. The order was made without notice to the defendants. It contained the usual provisions requiring the defendants to provide information on affidavit with respect to their assets by a date specified in that order.
2. Upon being served with notice of the order, the defendants lodged an application challenging the jurisdiction of the court. I ordered that the terms of the order relating to the provision of information with respect to assets should be stayed until the challenge to jurisdiction had been heard and determined.
3. On 30 September 2020 I heard the defendants’ challenge to jurisdiction. At the conclusion of the hearing I announced that I had concluded that the application should be dismissed for reasons to be published in due course. Those reasons have now been published. The defendants have applied for permission to appeal from that decision. That application is pending.
4. At the time of dismissing the challenge to jurisdiction, I made an order extending the time for the provision of information by the defendants with respect to their assets until 7 October 2020.
5. The defendants have applied for an order staying the order which I made to the effect that they should provide information with respect to their assets until their appeal has been determined.
6. The starting point for a consideration of that application is RDC 44.4 which provides that unless the court otherwise orders, an appeal shall not operate as a stay of the order or judgement under appeal. So, the default position is that an appeal does not, of itself, provide a ground for staying the operation of the order or judgment under appeal. An applicant for a stay pending appeal must therefore establish some good reason for the grant of a stay, arising from the particular circumstances of the case, before a stay will be granted.
7. The defendants seek to discharge that burden by asserting that they will suffer prejudice if the stay is not granted, because they will be required to comply with the order and provide the information. The basis for that assertion is elusive, and largely unexplained in the submissions provided in support of the application.
8. It is asserted that if the appeal is successful, the defendants will have provided information that they should not have been obliged to provide. But this presumes the success of the appeal, and does not identify any prejudice which they would suffer other than the trouble and expense of complying with the order, which could be addressed by an order for costs if the appeal is successful.
9. It is also asserted that the claimant could utilise the information provided in compliance with the order in a manner which is prejudicial to the defendants. No explanation is provided as to how that could occur. It is nothing more than a bald assertion, devoid of content or particularity, and therefore of no weight.
10. On the other hand if the information with respect to the defendants assets is not provided until after the appeal is decided, it can be readily inferred, and I do infer, that enforcement of the freezing order by the claimant is likely to be prejudiced.
11. For these reasons I am not satisfied that the defendants would suffer any material prejudice if a stay is not granted. I am however satisfied that it is likely that the claimant will suffer material prejudice if a stay is granted. It follows that the stay application must be refused.
12. The Registrar issued an order staying the operation of my earlier order until the stay application was determined. The time for compliance with my order expired during the currency of that stay. In these circumstances it is appropriate to extend the time for compliance with the order relating to the provision of information with respect to assets until 4pm on Wednesday 21 October 2020.
13. The defendants must pay the claimants costs of the application for a stay to be assessed unless agreed, within 14 days of assessment or agreement.
