March 01, 2012 SCT - Judgments and Orders
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
In the name of His Highness Sheikh Mohammad Bin Rashid Al Maktoum, Ruler of Dubai
IN THE SMALL CLAIMS TRIBUNAL OF DIFC COURTS
BETWEEN
CALANDRA
and
CALDER
Parties: Calandra, Claimant in person
Calder, Defendant
JUDGMENT
1. A hearing took place in respect of the application contesting jurisdiction filed by the Defendant on 23 January 2012 further to the claim filed on 15 January 2012.
2. I have had the benefit of listening to both Calder and Calandra in relation to the jurisdiction objection set out in the application. Calandra has pursued a strict legal interpretation of the matter of jurisdiction. He argues that the Small Claims Tribunal (SCT) has no jurisdiction in relation to these complaints because the matters which are alleged to have taken place were either not in bad faith or, if they are found to have been in bad faith, would fall within the remit of Part 42 of the Rules of the DIFC Courts (RDC) which provides for the review of the lawfulness of a decision, action or failure to act in relation to the exercise of a public function.
3. Calandra referred to legislation which he contended indicated that the Registrar of Companies exercised his jurisdiction as a public function (namely Articles 7(1), 8 and 139 of DIFC Law No.2 of 2009 ("the Companies Law") and I am persuaded that is the case. In the alternative, Calandra pointed to legislation which provides that the Registrar of Companies is not liable for any act or omission save where it has been undertaken in bad faith, and he asserted that no such bad faith had taken place. He referred in the context of that argument to Article 152 of the Companies Law. It is also worth considering r53.5 of the RDC which provides for the parts of the rules of the court that should apply to the Small Claims Tribunal "except to the extent that a Rule limits such application or the SCT Judge orders otherwise". In particular, that part does not apply to claims for judicial review.
4. Calandra, on the other hand, argues well, if I may say so, that the Small Claims Tribunal should look beyond the letter of the law and seek to provide a broader form of justice and, in his words, interpret the 'spirit of the law'. He has identified three areas in which he alleges the Registrar of Companies acted improperly. He has also intimated that he does wish to pursue an action that, not only did the Registrar of Companies act improperly, but in bad faith. Those three areas relate to effecting changes as a result of an allegedly invalid shareholders' resolution; improperly handling the documentation of xxxx Consulting Group insofar as he did not have the documents that he ought to have had for incorporation; and improperly amending an Encumbrance Certificate.
5. It is clear that there is a dispute between Calandra and his fellow shareholder, DIFC Investments. It is clear that the dispute is longstanding and it is clear that Calandra wishes to pursue it in other jurisdictions, although he reserves his right to pursue it in this jurisdiction as well. That is not a matter that concerns us today. Whilst I have great sympathy for Calandra position, he is not represented and he does not have a legal qualification. At the same time, as a court, we must abide by the framework of the laws put in place in the DIFC. Equally, we must abide by the rules of the DIFC Courts. I find that the nature of the claims brought by Calandra do fall within those referred to in r42.2 of the RDC - that is a claim to review the lawfulness of a decision, action or failure to act in relation to the exercise of a public function, that being the function of the Registrar of Companies. Having found that the nature of the claim is one for judicial review, I am bound to determine that it is not a matter that the Small Claims Tribunal can hear pursuant to r53.5 and other legislation referred to in the pleadings. This is not to preclude Calandra in any way from pursuing an action before this court for judicial review of the matters raised, nor is it to prevent Calandra from pursuing any claim that he deems appropriate against his shareholder, DIFC Investments, in this court or elsewhere. This decision is limited only to the question of whether the Small Claims Tribunal has the power, as a matter of law, and in accordance with the applicable rules to determine claims involving judicial review.
6. Permission to appeal is refused.
Mark Beer
Registrar
Date of Issue: March 2012
