September 07, 2021 court of first instance - Orders
Claim No. CFI 083/2020
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURT OF FIRST INSTANCE
BETWEEN
CREDIT SUISSE (SWITZERLAND) LTD
Claimant
and
(1) ASHOK KUMAR GOEL
(2) SUDHIR GOYEL
(3) MANAN GOEL
(4) PRERIT GOEL
Defendants
ORDER WITH REASONS OF JUSTICE WAYNE MARTIN
UPON the Defendants’ Application No. CFI-083-2020/5 dated 16 August 2021 for a stay on all proceedings pursuant to Decree No.19 of 2016 in cases CFI-083-2020, CFI-066-2020 and CA-002-2021(the “Stay Application”)
AND UPON the Defendants’ Application No. CFI-083-2020/4 dated 13 June 2021 seeking strike out of the Claimant’s Particulars of Claim or in the alternative seeking strike out of the First Witness Statement of Peter Kehrli filed and Exhibit PKR1 (the “Strike Out Application”)
AND UPON the Claimant’s evidence in answer to the Strike Out Application dated 28 June 2021
AND UPON the Defendants’ evidence in reply dated 5 July 2021
AND UPON the Claimant’s Application No. CFI-083-2020/3 for an immediate judgment dated 16 May 2021 (the “Immediate Judgment Application”)
AND UPON the Defendants’ evidence in answer to the Immediate Judgment Application dated 13 June 2021
AND UPON the Claimant’s evidence in reply dated 28 June 2021
AND UPON the Defendants’ Application No. CFI-083-2020/2 dated 13 December 2020 contesting the DIFC Courts’ jurisdiction (the “Jurisdictional Challenge Application”)
AND UPON the Claimant’s evidence in answer to the Jurisdictional Challenge Application dated 27 December 2020
AND UPON the Defendants’ evidence in reply dated 3 January 2021
AND UPON hearing Counsel for the Claimant and Counsel for the Defendants at a hearing on 19 August 2021
AND UPON reviewing the determination of debt certificates filed by the Claimant in compliance with the directions at the hearing
AND UPON reading the parties’ email exchanges to the Registry in relation to the debt certificates
IT IS HEREBY ORDERED THAT:
1. The Stay Application is dismissed.
2. The Defendants shall pay the Claimant’s costs of the Stay Application, to be assessed by the Registrar if not agreed by the parties within 14 days.
3. The Jurisdictional Challenge Application is dismissed.
4. The Defendants shall pay the Claimant’s costs of the Jurisdictional challenge Application on the standard basis up until the date of delivery of the decision of the Court of Appeal dismissing the appeal from the finding that the Court has jurisdiction to entertain the Claimants claims. Thereafter, the Claimant’s costs are to be paid on an indemnity basis. Those costs are to be assessed by the Registrar if not agreed by the parties within 14 days.
5. The Strike Out Application is dismissed.
6. The Defendants shall pay the costs of the Claimant’s costs of the Strike Out Application on an indemnity basis to be assessed by the Registrar if not agreed by the parties within 14 days.
7. The Immediate Judgment Application is granted.
8. Judgment is entered against each Defendant in the amount of USD 93,167,876.17 plus simple interest at the rate of 9% per annum pursuant to Practice Direction No. 4 of 2017 with effect from 19 August 2021.
9. The Defendants shall pay the Claimants costs of the action other than those specifically dealt with above and of the Immediate Judgment Application to be assessed by the Registrar if not agreed by the parties within 14 days. The defendants shall pay USD100,000 to the Claimants on account of those costs forthwith.
Issued by:
Nour Hineidi
Registrar
Date of issue: 7 September 2021
At: 9am
SCHEUDLE OF REASONS
1. I have considered the matters raised by the parties and do not consider that the Defendants should be granted extra time within which to respond to the certificates provided by the Claimant.
2. Judgment is entered against each Defendant in the amount of USD 93,167,876.17 plus simple interest at the rate of 9% per annum pursuant to Practice Direction No. 4 of 2017 with effect from 19 August 2021.
3. I do not consider that the costs of USD815,377.09 asserted in the certificates should be included because, contrary to the assertion in the certificates, costs do not come within the definition of “guaranteed obligations” under the guarantee and are not therefore covered by the certificate provisions in clause 13 of the Guarantees. As there is no other evidence confirming the amount of the costs claimed, I do not consider that amount should be included in the judgment.
4. In relation to the costs of the proceedings, I have concluded that while the Claimant should have all the costs which I indicated in the course of my ex-tempore judgment, those costs should be assessed by the Registrar. That is because the Claimant’s Statement of Costs includes a claim for expenses/disbursements of USD102,375 which is entirely unexplained or particularised. However, the Defendants should be ordered to pay USD100,000 forthwith on account of the Claimant’s costs, which is approximately 50% of the costs claimed.
