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Case No: CFI-047-2017

IN THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

In the name of His Highness Sheikh Mohammad Bin Rashid Al Maktoum, Ruler of Dubai

IN COURT OF FIRST INSTANCE

BEFORE H.E. JUSTICE ALI AL MADHANI

BETWEEN

COMMERCIAL BANK OF DUBAI PSC

                                                Claimant

and

(1) M/S TOTORA RESTAURANT AND LOUNGE LLC

(2) AHMAD MOHAMED RAMADHAN AL RAFEI

(3) ALI ABDULLAH AL SIDANI

(4) SHAIKHA RANEYA HAMAD MUBARAK HAMAD AL KHALIFA

Defendants

Hearing: 17 April 2018

Counsel: Laurence Page instructed by Eversheds Sutherland assisted by Rebecca Copley for the Claimant

Nigel Hartridge assisted by Karim Nassif of LPA Middle East LLC for the Second Defendant

Serena Boscia Montalbano of Curtis, Mallet-Prevost, Colt & Mosle LLP for the Third Defendant

Judgment: 23 January 2019

JUDGMENT OF H.E. JUSTICE ALI AL MADHANI

UPON the Claimant’s Request for Default Judgment dated 23 November 2017 seeking default judgment against the First, Second and Third Defendants

AND UPON the Fourth Defendant’s Application No. CFI-047-2017/1 dated 7 December 2017 disputing the jurisdiction of the DIFC Courts (the “Fourth Defendant’s Application)

AND UPON the Second Defendant’s Application No. CFI-047-2017/2 dated 4 January 2018 also disputing the jurisdiction of the DIFC Courts (the “Second Defendant’s Application”)

UPON hearing Counsel for the Claimant and Counsel for the Third Defendant at a Hearing held on 17 April 2018 on the Claimant’s Request for Default Judgment, the Fourth Defendant’s Application and the Second Defendant’s Application

AND UPON reviewing the submissions and evidence of both parties filed and recorded on the Court file

IT IS HEREBY ORDERED THAT:

1.The Fourth Defendant’s Application Contesting Jurisdiction is dismissed. The Fourth Defendant shall pay the costs of this Application, to be assessed by the Registrar if not agreed between the parties.

2. The Second Defendant’s Application Contesting Jurisdiction is dismissed. The Second Defendant shall pay the costs of this Application, to be assessed by the Registrar if not agreed between the parties.

3. The Claimant’s Application for Default Judgment against the First, Second and Third Defendants is granted with payment to be made to the Claimant by the First, Second and Third Defendants on a joint and several basis as follows:

a. Damages in the sum of AED 3,228,294 and interest at the rate of 7.5227% in the sum of AED 3,570.89 on the damages found due from 1 August 2017 to 3 October 2017 and continuing at a daily rate of AED 506;

b. Interest pursuant to Article 118(2) of the DIFC Contract Law as well as Legal costs and expenses incurred to date of filing to include the Court fee of USD 28,798.98.

Issued by:

Ayesha Bin Kalban

Assistant Registrar

Date of Issue: 23 January 2019

At:12pm

BACKGROUND

1.On 6 April 2016 the Claimant entered into an agreement with the First Defendant, a restaurant named Totora Restaurant and Lounge LLC to provide an Overdraft and Term Loan Facility the terms of which were amended by a letter dated 13 April 2016 (hereafter the Facility Agreement). The purpose of the Overdraft and Term Loan Facility Agreement was to provide the First Defendant with a financial loan to start up their new restaurant business in the DIFC.

2. The Second, Third and Fourth Defendants are individuals authorized, among other things, to provide guarantees on behalf of the First Defendant.

3. On 6 April 2016 the Claimant entered into agreements with each of the Second, Third and Fourth Defendants whereby each Defendant undertook to pay immediately on first demand the liabilities of the First Defendant under the Facility Agreement (hereafter the Guarantee Agreements). Under these Guarantee Agreements the Second, Third and Fourth Defendants are jointly and severally liable up to the amount of AED 4,500,000.

4. In a further agreement dated 6 April 2016 the Claimant entered into a Promissory Note with the First Defendant whereby the First Defendant undertook to pay the Claimant AED 4,000,000 plus interest. The Promissory Note was signed by the Second, Third and Fourth Defendants as authorized signatories of the First Defendant.

5. In and around April and May 2016 the First Defendant commenced trading. The First Defendant ceased trading in and around May 2017, approximately one year later.

6. On 24 May 2017 the Claimant demanded in writing from all the Defendants the payment of AED 3,434,644.85. A further written demand for payment of AED 3,231,865.68 was made by the Claimant on 11 October 2017.

7. On 18 October 2017 the Claimant issued these proceedings against all the Defendants in the DIFC Courts.

8. On 23 November 2017 the Claimant filed a Request for Default Judgment against the First, Second and Third Defendants.

9. On 7 December 2017 the Fourth Defendant submitted an application disputing the jurisdiction of the DIFC Courts. On 4 January 2018 the Second Defendant also submitted an application disputing the jurisdiction of the DIFC Courts.

10. On 4 February 2018 the Second Defendant filed an application requesting the Claimant’s request for Default Judgment be dealt with at the same hearing for dealing with matters with the other Defendants.

11. On 17 April 2018 the Court held a hearing to hear the Claimant’s request for Default Judgment and to hear the Second and Fourth Defendant’s request to dismiss the claim on a jurisdictional basis. At the hearing the Claimant and the Second and Fourth Defendants were present.

SUMMARY OF ARGUMENTS

The Second and Fourth Defendants’ Applications Contesting Jurisdiction

12. The Claimant submitted that the wording of Article 5(A)(1) of the judicial authority law No.12 of 2004 has a wide scope. Therefore, the DIFC Courts has jurisdiction to hear the claim against the First Defendant because it is a restaurant that was operating in the DIFC and also has jurisdiction to hear the claims against the Second, Third and Fourth Defendants because they are the contracted Guarantors for the First Defendant for the purposes of it running its business in the DIFC.

13. The Claimant further submitted that the Guarantee Agreements establish each of the Second, Third and Fourth Defendant’s shareholder obligations as being equal to those of the First Defendant and there is no requirement in the terms of the Guarantee for the First Defendant to fall into default before a claim can be made against any particular guarantor.

14. The Claimant submitted that the performance of the Facility Agreement was to be conducted in the DIFC and that all money loaned from the Claimant to the First Defendant was for the purpose of expenditure for its business which was physically located in the DIFC.

15. The Claimant claimed that the Guarantee affirms the guarantors to be treated as having signed and executed the Guarantee in the DIFC as the Guarantee contains the words; “this Guarantee has been executed by the guarantor the place and the date first above mentioned” and the Claimant submits the Guarantee first mentions the address of the First Defendant with a DIFC address.

16. The Claimant further submits that the Guarantee stipulates the jurisdiction of the UAE Courts and the Claimant relies on DIFC case law which has held that references to the Dubai Courts or Courts of the UAE should be broadly construed and that the DIFC Courts is one of the courts of Dubai and by extension is a court of the UAE.

17. Conversely, the Second and Fourth Defendants jointly submit that the Guarantee stipulates that it will be governed and construed in accordance with the laws of the UAE and any dispute will be submitted to the exclusive jurisdiction of the UAE which they take to mean the Dubai Courts. They further submit that the language of the Guarantee is written in both English and Arabic and that clause 14 of the Guarantee stipulates that if any difference of interpretation of the text of the Guarantee arises, that the Arabic language will prevail. The Second and Fourth Defendants argue that this further proves the intent of the guarantors to have any dispute resolved in the Dubai Courts which are conducted in the Arabic language and not in the DIFC Courts which are conducted in English.

18. The Fourth Defendant goes further and relies on DIFC case law, DIFC CFI 048 2017, which held that mention of UAE Courts could refer to either DIFC or non-DIFC Courts and in such a scenario when determining which of the two jurisdictions apply it is necessary to look at the overall circumstances to ascertain what the parties intended. Such factors as the location of where the services of the contract are being carried out and the language of the agreement can be taken into consideration as Arabic language is not the language of the DIFC Courts.

19. The Second and Fourth Defendant also submit that they signed the Guarantee in a location outside of the DIFC which further removes them from any connection to the DIFC. Both Defendants further submit that the Guarantee does not contain any express clause opting into the DIFC jurisdiction and that if the Claimant truly intended to submit disputes to the DIFC Courts then it would have expressly stated this in the Guarantee, however there is no reference to the DIFC jurisdiction.

20. The Fourth Defendant goes further and in response to clause 15 of the Guarantee which appears to allow the Claimant to alternatively choose any jurisdiction to commence proceedings, the Fourth Defendant relies on DIFC CFI 024 2016 which ruled that a wide jurisdictional clause incorporated by the Claimant which allows the Claimant to choose any jurisdiction is not a valid opt-in clause to the DIFC Courts.

21. In response to the Claimants submission that the Guarantee specifically mentions and includes the DIFC when it states the Guarantee has been executed at the place first mentioned in the Guarantee, the Fourth Defendant conversely submits that the place first mentioned in the Guarantee is the Commercial Bank of Dubai, Main Branch and not the address of the DIFC restaurant. The Fourth Defendant further argues that the reference to the DIFC address in the Guarantee is in reference to the First Defendant who is only a party to the Facility Agreement and not a party to the Guarantee.

22. The Fourth Defendant also argues that the relationship between the Claimant and the guarantors is not governed nor bound by the Facility Agreement and that the Facility Agreement and the Guarantee Agreements are separate agreements with differing obligations. Thereby, there is no claim relating to transactions wholly or partly conducted in the DIFC and Article 5(A)(1) does not apply to the Fourth Defendant; the DIFC Courts have no basis for accepting jurisdiction.

The Claimant’s Application for Default Judgment

23. The Claimant has requested a Default Judgment against the First, Second and Third Defendants for failing to file Acknowledgments of Service or Statements of Defence in time.

24. The Claimant relies on RDC 11.4 which stipulate that failure to file an Acknowledgement of Service within time permits a Claimant to obtain Default Judgment. The Claimant submitted its request for Default Judgment on 23 November 2017.

25. Particularly, the Claimant submits that the Second Defendant failed to comply with RDC 4.46 which stipulates that where a party fails to comply with a Rule or Practice Direction, the relevant Rule or Practice Direction has effect unless the party in default applies for and obtains relief from the sanction.

26. The Claimant submits that the Second Defendant failed to produce any such application and therefore requests Default Judgment against the Second Defendant.

27. In response, the Second Defendant relies on RDC 13.18 which stipulates that where there is a claim for Default Judgment against two or more Defendants, if the claim cannot be dealt separately from the claim against the other Defendants, the Court will not enter Default Judgment against that Defendant.

28. The Second Defendant submits that the Claim against him cannot be heard separately from the other Defendants as the Claim against him arises out of identical contractual grounds as the other Defendants and any resolution of dispute based on such an agreement will have similar effect on the others. Further, the Second and Fourth Defendants are contesting the Claim on substantively similar terms, those being a contest against jurisdiction.

DISCUSSION

29. This case is pleaded by all parties, apart from the Third Defendant who has not made any submission. The Court is to decide the Fourth Defendant’s application challenging the jurisdiction of this Court. Furthermore, this Court is required to make a determination in regards of the Claimant’s Application for Default Judgment against all the Defendants apart from the Fourth Defendant. As such the Court is also required to decide whether the Second Defendant is entitled to bring an Application to Contest Jurisdiction after failing to file an Acknowledgment of Service on time.

The Fourth Defendant’s Jurisdiction Application

30. As summarised above, the Fourth Defendant brought its Application based on the ground that the Guarantee stipulates that it will be governed and construed in accordance with the laws of the UAE and any dispute will be submitted to the exclusive jurisdiction of the UAE which they take to mean the Dubai Courts.

31. The Fourth Defendant also argues that clause 14 of the Guarantee stipulates that if there is any difference of interpretation of the text of the Guarantee, the Arabic language will prevail. Additionally, the Guarantee was signed outside of the DIFC.

32. The relevant law in this regard is Article 5(A)(1)(b) of the Judicial Authority Law which provides:

“(1) The Court of First Instance shall have exclusive jurisdiction to hear and determine:

(b) Civil or commercial claims and actions arising out of or relating to a contract or promised contract, whether partly or wholly concluded, finalized or performed within DIFC or will be performed or is supposed to be performed within DIFC pursuant to express or implied terms stipulated in the contract”

33. According to above article if the cause of action relates to a contract performed within the DIFC, the case then shall be submitted to the exclusive jurisdiction of the DIFC Courts for determination.

34. In this case, I am in a full agreement with the Claimant’s argument that this case relates to the DIFC through the relevant contract or, in other words, the Guarantees falls within the gateway articulated at Article 5(A)(1)(b) for the following reasons:

a. The consideration for the Guarantee is the agreement between the Claimant and First Defendant to enter into the Facility Agreement. It is accepted that the Facility Agreement is a contract actually concluded and performed in the DIFC.

b. The Guarantee refers to the Facility Agreement and vice versa. The Guarantee further establishes each of the shareholders’ obligations as being equal to those of the First Defendant and any other Guarantor. There is no requirement in the terms of the Guarantee for the First Defendant to fall into default before a claim can be made against any shareholder who signed as a Guarantor.

c. Both contracts, the Facility agreement and the Guarantee, were signed on the same date which reflects the relevance and connection between them.

d. The Guarantee is as wide as, but no wider than, the Facility in scope. All of the First Defendant’s obligations are adopted. There is no difference in the financial limit between the parties’ obligations. Upon payment of the outstanding sums, the shareholders’ obligations under the Guarantee are extinguished. As such, the Guarantee is parasitic upon the Facility Agreement.

e. The Claim against the Second, Third and Fourth Defendants as individuals has been issued alongside a claim against the First Defendant and these claims fall to be determined in the same proceedings because of their close and obvious connection.

35. I find that the Guarantee is closely connected to the DIFC Facility Agreement and therefore it falls under the Jurisdiction of the DIFC Courts pursuant to article 5(A)(1)(b) of the Judicial Authority Law.

36. As the connection between the Claims under the Guarantee and under the Facility Agreement has been established, the remaining arguments of the Fourth Defendant, namely that the Guarantee preferences Arabic, was signed outside the DIFC, and that the Guarantee’s parties are not DIFC entities, are not convincing. The Claims remain within the jurisdiction of the DIFC Courts unless the Fourth Defendant can establish that there has been a valid opting-out of the jurisdiction.

37. The Fourth Defendant argues that clause 15 of the Guarantee refers disputes to the exclusive jurisdiction of the UAE, which is meant to mean the Dubai Courts.

38. Clause 15 of the Guarantee sets out:

"This Guarantee shall be governed by and construed in accordance with the law of the United Arab Emirates. Any dispute connected with this Guarantee shall be submitted to the exclusive jurisdiction of the United Arab Emirates courts. And that shall not be construed so as to limit the right of the Bank (only) to take proceedings against the Guarantor in any other one or more jurisdictions."

39. In Sunteck Lifestyles Limited v (1) AI Tamimi And Company Limited (2) Grand Valley General Trading Ltd. [2017] DIFC CFI 048 at [24], Justice Sir Jeremy Cooke advanced the meaning of the requirement that agreements to opt-in must be "specific, clear and express" by describing that the Court must "construe the contracts in issue to determine the parties' chosen jurisdiction when faced with clauses" that do not prima facie accord jurisdiction to the DIFC Courts.

40. It is my view that a jurisdiction clause, whether it purports to opt-in or opt-out of the jurisdiction of the DIFC Courts, must carry the same degree of clarity and specificity as Justice Sir Jeremy Cooke has required.

41. In the present case, clause 15 of the Guarantee does not prima facie opt-out or even opt-in to the jurisdiction of the DIFC Courts because the phrase "United Arab Emirates courts" could refer to either DIFC or non-DIFC courts which are located within the territory of the United Arab Emirates. Therefore, I find the Fourth Defendant’s construction of clause 15 to be inaccurate and I deliver no objective contractual intent to the parties in regards of jurisdiction.

42. Having reached the above conclusion, I find that no argument or defence raised by the Fourth Defendant can stand as a valid challenge to this Court’s Jurisdiction based upon Article 5(A)(1)(b) of the Judicial Authority Law. There is thus no need to examine the secondary argument of the Claimant that there is a valid jurisdictional connection based on Article 5(A)(1)(c) for the reason that the jurisdiction clause is not clear or specific and therefore cannot qualify as a valid opt-in clause.

43. For the above said reasons I dismiss the Application to Contest Jurisdiction submitted by the Fourth Defendant

The Second Defendant’s Jurisdiction Application

44. Although the Second Defendant has submitted an Application to Contest the Jurisdiction of this Court, he must face an additional and prior difficulty. By reason of filing an Acknowledgement of Service out of time and failing to apply for relief from sanctions under RDC 4.49, the Claimant argues that the Court must determine whether the Second Defendant is permitted to challenge jurisdiction at this time.

45. The Claimant’s argument is that the Second Defendant is barred from challenging jurisdiction until such time as he applies for and is granted relief from sanctions. The Claimant argues that pursuant to RDC 11.4, the failure to file an Acknowledgement of Service within time permits a Claimant to obtain Default Judgment. This was requested on 23 November 2017 and should have been granted by the Court. In any event, the making of the request prior to the Second Defendant’s Application means that he is subject to RDC 4.46, whereby:

“4.46

Where a party has failed to comply with a Rule, Practice Direction or Court order, any sanction for failure to comply imposed by the Rule, Practice Direction or Court order has effect unless the party in default applies for and obtains relief from the sanction.”

46. The Second Defendant submits that the Application for Default Judgment made by the Claimant against him on 23 November 2017 should not be entertained by the Court pursuant to RDC 13.18 which provides the following:

“13.18

Where a claimant applies for a default judgment against one of two or more defendants — …

(2) if the claim cannot be dealt with separately from the claim against the other defendants

(a) the Court will not enter default judgment against that defendant; and

(b) the Court must deal with the application at the same time as it disposes of the claim against the other defendants.”

47. As is summarised above, the Second Defendant argues that his case cannot be heard separately from the claim against the Third and Fourth Defendants for the following reasons:

a. the remedy sought against the Second, Third and Fourth Defendants is identical, it is a monetary payment in the form of a sum of money claimed from these three Defendants jointly and in their capacity as guarantors of the First Defendant.

b. the remedy sought against the Second, Third and Fourth Defendants stems out of an identical contractual ground. An identical Guarantee Agreement was entered into by each of the them; thus, any resolution of the dispute based on such Guarantee Agreement will have similar effect on the others.

c. the Third Defendant and the Fourth Defendant made Applications respectively on 7 December 2017 and 4 January 2018 contesting the Court’s jurisdiction, citing “substantively [the] same terms.”

48. In my judgment the Claim against the Second Defendant is not a Claim that “cannot be dealt with separately from the claim against the other defendants” as suggested in RDC 13.18, considering that the Claimant, as a bank, is entitled to bring the Claim against the Guarantors either separately or jointly.

49. Clause 1 of Guarantee provides:

“We the undersigned (hereinafter called "the Guarantor"), hereby jointly and severally agree and undertake to pay to the Bank, all the customer obligations and undertakings, up to an amount of AED 4,500,000.00 (UAE Dirhams Four Million Five Hundred Thousand Only), granted by virtue of Credit Facilities Agreement dated: 06/04/2016 and its schedule dated 06/04/2016 (which Guarantor acknowledge the receipt of their copies) plus all the accrued interest charges, commissions and expenses, of whatever kind, as a joint obligation until its actual and full repayment.”

50. This means the Claimant can bring a claim against the Client and the Guarantors jointly or separate claims against whichever parties the Claimant may choose. Therefore, the connection with other parties is not helpful for the Second Defendant and it does not justify the Second Defendant to submit an Acknowledgment of Service or any further application without first seeking the Court’s permission to remove the sanction as required pursuant to RDC 4.46.

51. Furthermore, the grounds for the Jurisdiction Application submitted by the Second Defendant are identical to those found in the Fourth Defendant’s Application. These arguments have already been dismissed, and therefore, the Jurisdiction Application of the Second Defendant remains hopeless and without merit. If the Second Defendant’s Jurisdiction Application was accepted, it would be dismissed.

The Claimant’s Application for Default Judgment against the First, Second, and Third Defendants

52. The Claimant submits that failure to file an Acknowledgement of Service within time permits a party to obtain Default Judgment and thus submitted its request for Default Judgment on 23 November 2017.

53. RDC 11.3 reads as follows:

“If:

(1) a defendant fails to file an acknowledgment of service within the period specified in Rule 11.5; and

(2) does not within that period file a defence in accordance with Part 16 or serve or file an admission in accordance with Part 15”

54. The Claimant may obtain default judgment under Part 13 of the RDC:

“13.1

In these Rules, ‘default judgment’ means judgment without trial where a defendant.

(1) has failed to file an acknowledgment of service; or (2) has failed to file a defence.

13.2

For the purposes of this Part, a defence includes any document purporting to be a defence.”

55. The First and Third Defendants have failed to file an Acknowledgment of Service or a Defence to the claim (or any part of the claim) with the DIFC Courts and the relevant time for so doing has expired (RDC 13.4). The Second Defendant filed the Acknowledgment of Service outside the time prescribed by the RDC.

56. The First, Second and Third Defendants have not: (i) applied to the DIFC Courts to have the Claimant’s statement of case struck out under RDC 4.16; or for immediate judgment under RDC Part 24 (RDC 13.6(1)); (ii) satisfied the whole claim (including any claim for costs) on which the Claimant is seeking judgment; or (iii) filed or served on the Claimant an admission under RDC 15.14 or 15.24 together with a request for time to pay (RDC 13.6(3)).

57. The Claimant filed a Certificate of Service in accordance with RDC 9.43 on 19 and 20 Nov 2017.

58. The Claimant has followed the required procedure for obtaining Default Judgment under RDC 13.7 and 13.8.

59. The claim is for a specified sum of money and the request specifies the date by which the whole of the judgment debt is to be paid or the times and rate at which it is to be paid by instalments (RDC 13.9).

60. This Court is satisfied that the conditions of RDC 13.22 have been met.

61. The Claimant has submitted evidence, as required by RDC 13.24, that (i) the claim is one that the DIFC Courts have power to hear and decide; (ii) no other court has exclusive jurisdiction to hear and decide the claim; and (iii) the claim has been properly served (RDC 13.22/13.23).

62. Accordingly, in regards to the First Defendant, this Court orders damages in the sum of AED 3,228,294.74 for breach of contract, being the principle amount and interest due and payable under the terms of the Facility Agreement; and Interest at the Default Rate (currently) 7.5227% pursuant to the Schedule to the Facility in the sum of AED 3,570.89 on the damages found due from 1 August 2017 to 3 October 2017 and continuing at a daily rate of AED 506;

63. The Court further orders the payment of interest pursuant to Article 118(2) of the DIFC Contract Law as well as Legal costs and expenses incurred to date of filing to include the Court fee of USD 28,798.98.

64. Furthermore, this Court finds the Second and Third Defendants jointly and severally liable with the First Defendant to pay the sums set out in above.

CONCLUSION

65. For the above said reasons, this Court dismisses Fourth Defendant’s Application to contest the DIFC Courts’ jurisdiction, with costs of the Application to be paid by the Fourth Defendant to be assessed by the Registrar if not agreed between the parties. The Court further directs the Fourth Defendant to file and serve its defense within 21 days from the date of this Judgment.

66. The Court further dismisses the Second Defendant’s Application to contest the DIFC Courts’ jurisdiction and dismisses its defense that this application can be heard out of filing time. The costs of this Application are to be paid by the Second Defendant and assessed by the Registrar if not agreed between the parties.

67. The Court hereby enters Default judgment against the First, Second and the Third Defendants in addition to the cost of the Request for Default judgment to be assessed by the Registrar if not agreed between the parties.