September 22, 2023 COURT OF FIRST INSTANCE - JUDGMENTS
Claim No: CFI 034/2023
IN THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURT OF FIRST INSTANCE
BETWEEN
JTRUST ASIA PTE LTD
Claimant
and
(1) MITSUJI KONOSHITA
(2) APF GROUP CO LTD (IN RECEIVERSHIP)
Defendants
Hearing : | 7 September 2023 |
---|---|
Counsels : | Mr David Holloway instructed by Al Tamimi and Company for the Claimant Mr David Joseph KC instructed by DLA Piper Middle East LLP for the Defendants |
Judgment : | 22 September 2023 |
JUDGMENT OF JUSTICE LORD ANGUS GLENNIE
UPON reviewing the Defendants’ Application No. CFI-034-2023/1 dated 9 June 2023 seeking an order to dismiss the Claim due to lack of jurisdiction (the “Jurisdiction Application”)
AND UPON reviewing the Claimant’s Application No. CFI-034-2023/2 dated 23 June 2023 seeking an immediate judgment in the Claim (the “Immediate Judgment Application”)
AND UPON the virtual hearing held before me on 7 September 2023 (the “Hearing”)
AND UPON the reviewing the case filings
IT IS HEREBY ORDERED THAT:
1. The Jurisdiction Application is refused.
2. The Immediate Judgment Application is granted.
3. The following Judgments are ratified, recognised and declared enforceable as a judgment of the DIFC Courts pursuant to Articles 24(1)(a) of the DIFC Court Law:
(a) the Judgment of the Honourable Justice Gerhard Wallbank in the Eastern Caribbean Supreme Court, High Court of Justice, Virgin Island Commercial Division, dated 4 May 2022 (and issued on 6 May 2022), in Claim No BVIHC (COM) 226 of 2017, given against the Second Defendant (the “BVI Judgment”); and
(b) the Judgment of Justice Lee Seiu Kin dated 10 April 2023 in Case No HC/OS 780/2021 before the General Division of the High Court of the Republic of Singapore, given against the First Defendant (the “Singapore Judgment”).
4. In relation to the BVI Judgment, the Second Defendant is ordered to pay the Claimant the sum of USD 95,865,387 plus interest at the rate of 5% per annum from 1 August 2016 to the date of full payment.
5. In relation to the Singapore Judgment the First Defendant is ordered to pay the Claimant the sum of USD 124,474,854 plus interest at the rate of 5.33% per annum from 1 August 2021 to the date of full payment. The First Defendant is ordered to pay the Claimant the sum of USD 39,000 in respect of costs.
6. The Defendants shall pay the costs of this case on an indemnity basis in the amount of AED 800,000.
Issued by:
Hayley Norton
Assistant Registrar
Date of Issue: 22 September 2023
At: 2pm
SCHEDULE OF REASONS
1. This action is brought by the Claimants to enforce two judgments. The first is a Singapore judgment, known as the Singapore Judgment, issued on 10 April 2023 against the First Defendant and others in the sum of over USD 124 million and costs and interest. The second is a BVI judgment issued on 6 May 2022 against the Second Defendant and others in the sum of USD 95 million plus interest.
2. To avoid jurisdictional disputes, the Claimants seek to enforce the Singapore judgment only against the First Defendant in these proceedings and the BVI judgment only against the Second Defendant. The Singapore Judgment is under appeal in Singapore. The appeal is apparently to be heard sometime between 20 November and 1 December of this year but it is important to note that the Singapore Court of Appeal has refused an application by the Defendants for a stay of execution pending appeal.
3. The Applications before me are twofold. One is by the Claimants for immediate judgment on their Claim to enforce the two judgments. The second is by the Defendants and their Application is to dismiss or, failing that, to stay these proceedings. No substantive defence to enforcement has been advanced by either Defendant in this Court but it is said that it is not appropriate to enforce the judgment in the DIFC and that it is an abuse of process; and in any event, the present Claim should be stayed because the onshore Dubai Court has jurisdiction in this matter and a reference has been made to the JJC for the matter of jurisdiction to be determined.
4. So far as the argument that this is not the time to enter judgment is concerned, that is a point relating to the Singapore Judgment and the fact that the Singapore Judgment is under appeal. It is said that, in exercise of the Court's discretion, it would be wrong to enforce that judgment and the Court should adjourn the application to see what happens in the appeal. There is no dispute that, as a matter of law, the judgment is enforceable even though it is under appeal. It is relevant that a Singapore Court has refused the stay of execution. In these circumstances, it seems to me that it would be wrong to delay enforcement proceedings here. The refusal of a stay of execution is an important factor, to my mind. So far as abuse of process is concerned, it is now accepted, although it was not earlier, that the DIFC Courts have jurisdiction to enforce the judgments under articles 5 and 7 of the Judicial Authority Law and under article 24 of the Courts Law even if there is not shown to be any assets within the DIFC. That is well-established and has been approved by the Court of Appeal in the DNB case. Mr Joseph KC points out that that case does not say that it will always be appropriate to 5 of 5 use that jurisdiction. It depends on the circumstances. But there is nothing in the circumstances here to make it inappropriate.
5. The Defendants rely on proceedings commenced by them in the onshore Dubai Courts to challenge the judgments. So far, the onshore Dubai Courts have declined jurisdiction. I am told that the matter has gone to the Dubai Court of Appeal and that judgment is expected next week. So be it. I have to deal with the position as it is now. But in any event, I am not satisfied that the decision of the Dubai Court to accept jurisdiction, if that is the decision it came to, would make any difference. There is nothing inherently wrong with a judgment creditor such as the Claimants seeking to enforce a judgment in more than one jurisdiction. That does not necessarily give rise to any conflict or difficulty.
6. The Defendants say the matter has been referred to the JJC in terms of Dubai Decree 19 of 2016 and that there should be, therefore, a stay of the DIFC proceedings in terms of article 5 of that decree. I do not accept that. There is, as noted already, no present conflict of jurisdiction between the Courts of the DIFC and those of onshore Dubai. That was accepted. Nor will there necessarily be any conflict of jurisdiction even if the Dubai Court of Appeal allows the appeal. As I have said, there is no reason why you should not have enforcement in more than one place. In the circumstances, there is no basis for this Court staying the enforcement proceedings and I refer to Lakhan v Lamia.
7. In all the circumstances I shall refuse the Defendants' Application and grant the Claimant's Application.
8. The Claimant is entitled to its costs, which I determine should be paid on the indemnity basis. I assess those costs in the sum of AED 800,000.