January 27, 2021 court of first instance - Orders
Claim No. CFI 071/2020
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURT OF FIRST INSTANCE
BETWEEN
(1) ABDULRAHIM ABDULLA JAFFAR AL ZAROUNI
(2) SAIF ABDULRAHIM ABDULLA JAFFAR AL ZAROUNI
Claimants
and
EASTLIFT DMCC
Defendant
CASE MANAGEMENT ORDER OF JUDICIAL OFFIDER MAHA AL MEHAIRI
UPON reviewing the Court file
AND UPON reading the Case Management Bundle
AND UPON reviewing the Rules of the DIFC Courts (“RDC”)
AND UPON hearing Counsel for the Claimants and Counsel for the Defendant at the Case Management Conference held before Judicial Officer Maha Al Mehairi on 17 January 2021
IT IS HEREBY ORDERED THAT:
Agreed List of Issues
1. The list of issues has been agreed by the parties annexed hereto as Annexure 1.
2. The parties’ respective skeleton arguments shall make clear which points go to which issue in the List of Issues.
Production of Documents (RDC Part 28)
3. Standard production of documents shall be made by each party by 4pm on 28 February 2021.
Witness Statements (RDC Part 29)
4. Signed statements of witnesses of fact, and hearsay notices where required by the RDC shall be exchanged by 4pm on 28 March 2021.
5. Any witness statement evidence in reply shall be filed and served by 4pm on 11 April 2021.
6. Unless otherwise ordered, witness statements shall stand as evidence in chief of the witness at trial.
Progress Monitoring Date (RDC Part 26)
7. The parties shall file and serve a Progress Monitoring Information Sheet by 4pm on 20 April 2021.
Pre-Trial Review (RDC Part 26)
8. A pre-trial review shall be listed at 11am on 02 May 2021.
Trial Bundles (RDC Part 35)
7. The parties shall file and serve a Progress Monitoring Information Sheet by 4pm on 20 April 2021.
Pre-Trial Review (RDC Part 26)
8. A pre-trial review shall be listed at 11am on 02 May 2021.
Trial Bundles (RDC Part 35)
9. Agreed trial bundles shall be filed and served by 4pm on 26 May 2021.
Reading List and Trial Timetable (RDC Part 35)
10. An agreed reading list for trial along with an estimate of time required for reading and an estimated timetable for trial shall be filed with the Court by the Claimant by 4pm on 6 June 2021.
Skeleton Argument and Chronology (RDC Part 35)
11. Skeleton Arguments and written opening statements shall be filed and served five clear days before the start of trial for the Claimant and one clear day before the start of trial for the Defendant.
Trial (RDC Part 35)
12. The trial of this matter shall be listed to start at 10am on 9 June 2021 with an estimated duration of 1 day.
13. Costs of the Case Management Conference are costs in the case.
14. The parties shall have liberty to apply.
Issued by:
Nour Hineidi
Registrar
Date of issue: 27 January 2021
At: 2pm
ANNEXURE 1
Claim No: CFI 071/2020
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURT OF FIRST INSTANCE
BETWEEN
(3) ABDULRAHIM ABDULLA JAFFAR AL ZAROUNI
(4) SAIF ABDULRAHIM ABDULLA JAFFAR AL ZAROUNI
Claimants
and
EASTLIFT DMCC
Defendant
AGREED LIST OF ISSUES
Liability Issues
1. Was the Defendant in repudiatory breach of the Sale and Purchase Agreement dated 25 March 2020 (the “SPA”) by failing to pay the Initial Consideration, as defined (Particulars of Claim/37). In particular:
(a) Did the Defendant represent and warrant (Clause 7.2(B)) that it had the funds available at the time of executing the SPA to pay the full initial consideration (AED 7,000,000)?
(b) Did the parties agree on a Closing Date under the SPA and is such agreement a condition precedent to performance under the SPA? (Defence/2 and 27).
(c) Is the Closing Date the date upon which completion should have taken place? (Defence/2 and 27).
(d) Has completion taken place? (Reply/13-15).
(e) Are the Claimants obliged to provide the Defendant with audited accounts for Ocean Mills LLC, and if so, is that obligation/s a condition precedent under Clause 3.1(A) and/or (B) of the SPA?
(f) Did the Defendant request the audited accounts for Ocean Mills LLC for the previous three years as purported to have done in an email dated 14 March 2020? (Defence/29).
(g) Does Clause 3.2 (B) place an obligation on the Defendant to obtain certain documents in connection with the SPA and did the Defendant satisfy such obligations? (Reply /29).
2. Whether the warranties/representations at clauses 7.2(B) and 7.2(D) were true and accurate at the relevant time(s)? (Particular of Claim/34-35, Defence/30).
3. Was the Defendant in repudiatory breach of the SPA?
4. Whether there was a material adverse change of circumstances resulting from the COVID-19 pandemic (Particulars of Claim/42, Defence/32-33)
5. Whether the SPA has been validly terminated by the Claimants or the Defendant? (Particulars of Claim/49-50, Defence/33).
Quantum
6. If the Defendant is found to have been in repudiatory breach of the SPA or the warranties/misrepresentations, have the Claimants suffered loss or damage? (Particulars of Claim/41, Defence/35)
7. Should the Claimants be required to mitigate loss or damage, and if so, have they done so?
8. Are the Claimants’ claims limited to 400,000 AED by virtue of clause 9.1 of the SPA? (Defence/35)
9. Whether any such cap applies to all liabilities that may arise under the SPA. (Reply/6)
10. Does the SPA define what liability would be limited to a cap.
Common Grounds between the parties
11. The Claimants and the Defendant entered into a Share and Purchase Agreement dated 25 March 2020 for the purpose of purchasing 90% shares in Ocean Mills LLC from the Claimants.
12. The First Claimant and the Defendant also entered into a Sponsorship Agreement and Loan Agreement.
13. The purchase price for the sale of shares in Ocean Mills LLC was as follows:
(a) an initial consideration of AED 7 million to be given by the Defendant to the Claimants by certified cheque on completion; and
(b) AED 2 million to be paid under a Loan Agreement entered into between the First Claimant and the Defendant.
