November 30, 2021 court of first instance - Orders
Claim No: CFI 092/2021
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURT OF FIRST INSTANCE
BETWEEN
(1) SANDRA HOLDING LTD
(2) NURI MUSAED AL SALEH
Claimants
and
(1) FAWZI MUSAED AL SALEH
(2) AHMED FAWZI AL SALEH
(3) YASMINE FAWZI AL SALEH
(4) FARAH EL MERABI
Defendants
FREEZING ORDER OF JUSTICE SIR JEREMY COOKE
PENAL NOTICE
IF YOU FAWZI MUSAED AL SALEH, AHMED FAWZI AL SALEH, YASMINE FAWZI AL SALEH, AND FARAH EL MERABI DISOBEY THIS ORDER YOU MAY BE HELD TO BE IN CONTEMPT OF COURT AND MAY BE IMPRISONED, FINED OR HAVE YOUR ASSETS SEIZED.
ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS THE RESPONDENT TO BREACH THE TERMS OF THIS ORDER MAY ALSO BE HELD TO BE IN CONTEMPT OF COURT AND MAY BE IMPRISONED, FINED OR HAVE THEIR ASSETS SEIZED.
THIS ORDER
1. On 10 November 2021, Justice Sir Jeremy Cooke made a worldwide Freezing Injunction against FAWZI MUSAED AL SALEH, AHMED FAWZI AL SALEH, YASMINE FAWZI AL SALEH, and FARAH EL MERABI (the “Respondent”) on the application of Sandra Holding Ltd and Nuri Musaed Al Saleh (the “Applicant”) (the “Original Freezing Injunction”). On 25 November 2021, the Judge continued the Original Freezing Injunction on the terms set out in this Order. References in this Order to ‘the Respondent’ mean to each one and all of them. The Judge read the affidavit and witness statements listed in Schedule A and accepted the undertakings set out in Schedule B at the end of this Order.
2. This Order was made on 10 November 2021 at a hearing without notice to the Respondent, and continued following an on notice hearing on 25 November 2021, service of the Order and documents in support of the application for the same having been found to have been properly served on the Respondent.
3. This Order is final and effective against any Respondent on whom it is served or who is given notice of it.
FREEZING INJUNCTION
4. Until the further order of the Court, the Respondent must not:
(1) remove any of his assets which are in the Dubai International Financial Centre (the “DIFC”) from the DIFC up to the value of US$45,000,000; or
(2) in any way dispose of, deal with, or diminish the value of any of his assets whether they are in or outside the DIFC up to the same value.
5. Paragraph 4 applies to all the Respondent’s assets, whether or not they are in his own name and whether they are solely or jointly owned and whether the Respondent is interested in them legally, beneficially or otherwise. For the purpose of this Order the Respondent’s assets include any asset which he has the power, directly or indirectly, to dispose of or deal with as if it were his own. The Respondent is to be regarded as having such power if a third party holds or controls the asset in accordance with his direct or indirect instructions.
6. This prohibition includes the following assets in particular-
(a) Any legal or beneficial, direct or indirect interest or right of the Respondent in the following companies, including any shareholding, (whether held for the Respondent by a nominee or agent or otherwise, directly or indirectly) or any interest which can arise by virtue of the exercise of any power of appointment, discretion or otherwise howsoever:
(i) ASPTC (PTC) LIMITED.
(ii) Budhi Trust Investment LLC, Dubai.
(iii) Mussad & Nguyen Electronis Trading LLC, Dubai.
(b) Any legal or beneficial, direct or indirect interest or right of the Respondent in the property known as Apartment No. 323, Acacia Building B, Dubai Hills.
(c) Any legal or beneficial, direct or indirect interest or right of the Respondent in the UK properties known as:
(i) Flat 6, Queensgate Alexandra Court, 171-175 Queens Gate, London, SW7 5HG (title number NGL941193).
(ii) Land adjoining Flat 6, Queensgate Alexandra Court (title number NGL665682).
(d) Any legal or beneficial, direct or indirect interest or right of the Respondent in the French properties known as:
(i) Lots 6 and 26 of cadastral reference BD25 (corresponding to 4, Cite Vaneau, 7th arrondissement, Paris, France).
(ii) Lots 4 and 30 of cadastral reference BD25.
(e) Any legal or beneficial, direct or indirect interest or right of the Respondent in the US properties known as:
(i) 253 Seapuit River Road, Osterville, Massachusetts.
(ii) Unit 312, 975 Memorial Drive, Cambridge, Massachusetts.
(iii) Unit 2, 61 Beacon Street, Beacon Hill, Boston, Massachusetts.
(iv) Unit 6F, 1010 Memorial Drive, Cambridge, Massachusetts.
(f) Any money in bank accounts whether held in the Respondent’s name or in the Respondent’s name jointly with others:
(g) Any money standing to the credit of any bank account including the amount of any cheque drawn on such account which has not been cleared.
(h) Any bonds.
(i) Any interest under any trust or similar entity including any interest which can arise by virtue of the exercise of any power of appointment, discretion or otherwise howsoever, including in the Budhi Trust, a trust administered by ASPTC (PTC) LIMITED.
(j) Any interest in or right in respect of a pension, life insurance or other financial policy or instrument.
7.
(1) If the total value free of charges or other securities (“Unencumbered Value”) of the Respondent’s assets in the DIFC exceeds USD 45,000,000, the Respondent may remove any of those assets from the DIFC or may dispose of or deal with them so long as the total Unencumbered Value of the Respondent’s assets still in the DIFC remains above USD 45,000,000.
(2) If the total Unencumbered Value of the Respondent’s assets in the DIFC does not exceed USD 45,000,000, the Respondent must not remove any of those
assets from the DIFC and must not dispose of or deal with any of them. If the Respondent has other assets outside the USD 45,000,000, he may dispose of or deal with those assets outside the USD 45,000,000 so long as the total Unencumbered Value of all his assets in the DIFC remains above USD 45,000,000.
PROVISION OF INFORMATION
8. Having failed to comply with paragraphs 8 and 9 of the Original Freezing Injunction in the time ordered or at all, the Respondent must comply forthwith with the orders set out in those paragraphs.
9. For ease of reference, those paragraphs require as follows:
“8.(1) Unless paragraph (2) below applies, the Respondent must:
(a) within 48 hours of service of this Order, and to the best of his ability inform the Applicant’s solicitors of all his assets worldwide exceeding US$150,000 in value whether in his own name or not and whether solely or jointly owned, giving the value, location and details of all such assets; and
(b) within 4 working days of service of this Order, and to the best of his ability inform the Applicant’s solicitors of any other of his assets worldwide exceeding US$,10,000 in value whether in his own name or not and whether solely or jointly owned, giving the value, location and details of all such assets.
(2) If the provision of any of this information is likely to incriminate the Respondent, he may be entitled to refuse to provide it, but is recommended to take legal advice before refusing to provide the information. Wrongful refusal to provide the information is contempt of court and may render the Respondent liable to be imprisoned, fined or have his assets seized.
10. Within 10 working days after being served with this Order, the Respondent must swear and serve on the Applicant’s solicitors an affidavit setting out the above information.”
EXCEPTIONS TO THIS ORDER
11.
(1) This Order does not prohibit the Respondent from spending US$3,000 a week towards his ordinary living expenses and also a reasonable sum on legal advice and representation. But before spending any money the Respondent must tell the Applicant’s legal representatives where the money is to come from.
(2) This Order does not prohibit the Respondent from dealing with or disposing of any of his assets in the ordinary and proper course of business but before doing so the Respondent must tell the Applicant’s legal representatives.
(3) The Respondent may agree with the Applicant’s legal representatives that the above spending limits should be increased or that this order should be varied in any other respect, but any agreement must be in writing.
(4) The Order will cease to have effect if the Respondent-
(a) provides security by paying the sum of US$45,000,000 into the DIFC Court, to be held to the order of the Court; or
(b) makes provision for security in that sum by another method agreed with the Applicant’s legal representatives.
COSTS
12.
(1) The Defendants shall pay the costs of and occasioned by the application for the Original Freezing Injunction, the return date, and this Order, in an amount of US$250,000 within 14 days from the date of this Order.
(2) The above costs have been assessed on a standard basis, but the Applicant has liberty to apply for costs to be paid on an indemnity basis.
VARIATION OR DISCHARGE OF THIS ORDER
13. Anyone served with or notified of this Order may apply to the DIFC Court at any time to vary or discharge this Order (or so much of it as affects that person), but they must first inform the Applicant’s solicitors. If any evidence is to be relied upon in support of the application, the substance of it must be communicated in writing to the Applicant’s solicitors in advance.
INTERPRETATION OF THIS ORDER
14. A Respondent who is an individual who is ordered not to do something must not do it herself or himself or in any other way. She or he must not do it through others acting on her or his behalf or on her or his instructions or with her or his encouragement.
15. A Respondent which is not an individual which is ordered not to do something must not do it itself or by its directors, officers, partners, employees or agents or in any other way.
PARTIES OTHER THAN THE APPLICANT AND RESPONDENT
Effect of this order
16. It is a contempt of court for any person notified of this Order knowingly to assist in or permit a breach of this Order. Any person doing so may be imprisoned, fined or have their assets seized.
Set off by banks
17. This injunction does not prevent any bank from exercising any right of set off it may have in respect of any facility which it gave to the respondent before it was notified of this Order.
Withdrawals by the Respondent
18. No bank need enquire as to the application or proposed application of any money withdrawn by the Respondent if the withdrawal appears to be permitted by this Order.
Persons outside the DIFC
19.
(1) Except as provided in paragraph (2) below, the terms of this Order do not affect or concern anyone outside the jurisdiction of this Court.
(2) The terms of this Order will affect the following persons in a country or state outside the jurisdiction of this Court:
(a) the Respondent or his agent appointed by power of attorney;
(b) any person who:
(i) is subject to the jurisdiction of this Court;
(ii) has been given written notice of this Order at his residence or place of business within the jurisdiction of this Court; and
(iii) is able to prevent acts or omissions outside the jurisdiction of this Court which constitute or assist in a breach of the terms of this Order; and
(c) any other person, only to the extent that this Order is declared enforceable by or is enforced by a Court in that country or state.
Assets located outside the DIFC
20. Nothing in this Order shall, in respect of assets located outside the DIFC, prevent any third party from complying with:
(1) what it reasonably believes to be its obligations, contractual or otherwise, under the laws and obligations of the country or state in which those assets are situated or under the proper law of any contract between itself and the Respondent; and
(2) any orders of the Courts of that country or state, provided that reasonable notice of any application for such an order is given to the Applicant’s solicitors.
PERMISSION TO SERVE BY ALTERNATIVE MEANS
21. The Applicant has permission to serve this Order and all other documents in this case by email and/or WhatsApp at the following email addresses and mobile numbers:
The First Respondent – Mob: +965 9766 4343.
The Second Respondent – Mob: +965 6693 3331; Email: Ahmed@massalehinvest.com
The Third Respondent – Mob: +965 9713 0088 (Kuwait); +1 617 650 0337 (USA); Email: Yaalsaleh@gmail.com
The Fourth Respondent – Mob: +965 6600 8393
22. Service on the First Respondent will be effective service on the Third Respondent and Fourth Respondent. Service will be deemed to have taken place the day after the email or WhatsApp message is sent.
COMMUNICATIONS WITH THE COURT
All communications to the court about this Order should be sent to the DIFC at the following email address: registry@difccourts.ae. The DIFC Registry’s other contact details are: Telephone: +971 4 427 3333; Fax: +971 4 427 3330; Address: Ground Level, Building 4 The Gate District, DIFC.
Issued by:
Nour Hineidi
Registrar
Date of Issue: 30 November 2021
At: 1.30pm
SCHEDULE A
EVIDENCE
The Applicant relied on the following affidavits / witness statements:
1. The first affidavit of Nuri Musaed Al Saleh (“NAS 1st”)
2. The first witness statement of Bader Saud Al Bader, a Kuwaiti lawyer (“Al Bader 1st”)
3. The first witness statement of Daniel Smith, an English lawyer ("Smith 1st")
4. The second witness statement of Daniel Smith ("Smith 2nd")
5. The third witness statement of Daniel Smith ("Smith 3rd")
6. The first witness statement of Pierre-Olivier Savoie, a French lawyer (“Savoie 1st”)
7. The second witness statement of Pierre-Olivier Savoie (“Savoie 2nd”)
SCHEDULE B
UNDERTAKINGS GIVEN TO THE COURT BY THE APPLICANT
(1) If the Court later finds that this Order has caused loss to the Respondent, and decides that the Respondent should be compensated for that loss, the Applicant will comply with any order the Court may make.
(2) The Applicant will serve upon the Respondent together with this Order as soon as practicable, copies of the affidavits, witness statements, and exhibits containing the evidence relied upon by the Applicant, and any other documents provided to the Court on the making of the application or relied upon at the return date.
(3) Anyone notified of this Order will be given a copy of it by the Applicant's legal representatives.
(4) The Applicant will pay the reasonable costs of anyone other than the Respondent which have been incurred as a result of this Order, including the costs of finding out whether that person holds any of the Respondent's assets and if the DIFC Court later finds that this Order has caused such person loss and decides that such person should be compensated for that loss, the Applicant will comply with any order the court may make.
(5) If this Order ceases to have effect (for example, if the Respondent provides security or the Applicant does not provide a bank guarantee as provided for above) the Applicant will immediately take all reasonable steps to inform in writing anyone to whom he has given notice of this Order, or who he has reasonable grounds for supposing may act upon this Order, that it has ceased to have effect.
(6) Subject to the paragraph below, the Applicant will not without the permission of the Court use any information obtained as a result of this order for the purpose of any civil or criminal proceedings, either in the DIFC Court or in any other jurisdiction, other than this claim.
(7) The Applicant has permission to enforce this Order in the onshore Dubai Courts, Kuwait, the UK, France, Switzerland, and USA and to seek an Order of a similar nature including orders conferring a charge or other security against the Respondent or the Respondent’s assets, but will not without the permission of the DIFC Court, seek to enforce the Order elsewhere or seek an order of a similar nature including orders elsewhere conferring a charge or other security against the Respondent or the Respondent’s assets.
(8) In addition to any other forms of notification, the Applicant will notify the Respondent of the Order by email or WhatsApp.
NAME AND ADDRESS OF APPLICANT’S LEGAL REPRESENTATIVES
The Applicant’s legal representatives are:
Trowers & Hamlins LLP
Office 2403, Level 24
Boulevard Plaza Tower 2
Downtown
PO Box 23092
Dubai
United Arab Emirates
Telephone: +971 4 351 9201
Communications should be marked for the attention of Matthew Showler and Daniel Smith. Emails can also be sent to mshowler@trowers.com and djsmith@trowers.com
