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Rohan v Daman: DIFC Court of Appeal confirms its earlier judgment

The DIFC Court of Appeal today handed down its further judgment in Rohan & Ors v Daman Real Estate Capital Partners Ltd following Daman’s successful application to re-open the appeal under RDC 44.179. Deputy Chief Justice Sir John Chadwick (with whom the Chief Justice Michael Hwang and His Excellency Justice Ali Al Madhani agreed) confirmed the Court’s earlier decision to dismiss Daman’s appeal.

On 11 February 2014 the Court of Appeal held that Sir Anthony Colman had been correct to hold that Daman had not exercised its right to extend the Anticipated Completion Date (ACD) under the Sale and Purchase Agreements (SPAs) entered into with the purchasers, and that the purchasers were therefore entitled to terminate the SPAs and to claim damages.

The Court of Appeal rejected Daman’s application to amend its defences in both cases, on the grounds that, even if the Court were pursuaded that Daman should now be permitted to advance a case that the ACD had been extended due to the occurrence of force majeure irrespective of the giving of notice (a case inconsistent with that which had been advanced at trial) the proposed amendments failed to satisfy the requirements identified by the judge, namely that the purchasers were entitled to have the force majeure event identified and to be told how much delay such event had caused so as to justify the overall extension of the ACD. Moreover, to allow an amendment to the pleadings would serve no useful purpose unless the Court were minded to order that the proceedings be remitted for a retrial, which would be inapproriate as it would be disproportionate and unjust to require the purchasers to incur the expense and further delay of a new trial.

The key issue to be considered by the Court on the re-opened appeal was whether the Court was required to address the question “what was the position at the dates when the purchasers purported to serve termination notices”; or, more specifically, “had the ACD been extended (independently of any notice given by the seller) by reason of force majeure delay to a date which was less than 12 months before the dates on which the purchasers gave notice of termination”.

The Court held that it was not required to address that question:

  1. it was not a question whch had been raised in the pleadings;
  2. it had not been put before Sir Anthony Colman and could not therefore be the subject of an appeal;
  3. the absence of a decision from the court below was not in itself a matter which could be the subject of an appeal to the Court of Appeal as the issue had not been properly put before the judge;
  4. the relief sought by Daman appeared not in its appeal notice, but only in its skeleton: the proper course would have been to seek permission to amend the appeal notice and grounds of appeal but there was no such application;
  5. it was unclear on what grounds it was asserted that Sir Anthony Colman should have held that the ACD had been extended to 31 March 2012.

Consequently, the earlier decision of the Court of Appeal was confirmed and the appeals were dismissed.

Crispin Winser appeared for the successful respondents in Rohan, instructed by Kennedys Dubai LLP.

The Judgment is available here.

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