Rada Trading LLC FZC v (1) Wealth Bridge Trading Crude Oil And Refined Products Abroad LLC (2) Cohenrich Energy FZE [2021] DIFC CA 007

September 07, 2021 Court of Appeal - Judgments

Claim No. CA 007/2021

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

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

IN THE COURT OF APPEAL
BEFORE CHIEF JUSTICE ZAKI AZMI, H.E JUSTICE SHAMLAN AL SAWALEHI AND JUSTICE SIR JEREMY COOKE

BETWEEN

RADA TRADING LLC FZC

Claimant/Respondent

and

(1) WEALTH BRIDGE TRADING CRUDE OIL AND REFINED PRODUCTS ABROAD LLC

First Defendant

(2) COHENRICH ENERGY FZE

Second Defendant/Appellant

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JUDGMENT

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Hearing :	23 August 2021
Counsel :	Alexander Burrell instructed by Horizons & Co on behalf of the Appellant Dr Rassan Azhari instructed by Azhari Legal Consultancy on behalf of the Respondent
Judgment :	7 September 2021

UPON the Judgment of H.E Omar Al Muhairi issued on 11 April 2021 (the “Judgment” )

AND UPON the Order H.E Omar Al Muhairi granting the Appellant permission to Appeal against the Judgment issued on17 June 2021 ( “Appeal” )

AND UPON hearing counsel for the Appellant and counsel for the Respondent at a hearing on 23 August 2021

AND UPON reading the submissions and evidence filed and recorded in the Court file

IT IS HEREBY ORDERED THAT:

1. The Appeal is allowed with costs.

2. Costs to be assessed by the Registrar if not agreed.

Issued by:
Nour Hineidi
Registrar
Date of issue: 7 September 2021
At: 1pm

CHIEF JUSTICE ZAKI AZMI, H.E JUSTICE SHAMLAN AL SAWALEHI AND JUSTICE SIR JEREMY COOKE IN AGREEMENT:

1. On 11 April 2021, H.E Justice Omar Al Muhairi (the “Judge” ) struck out the Claimant’s claim against the First and Second Defendants and the counterclaim of the Second Defendant ( “Cohenrich )”. Cohenrich appeals against the latter decision. There is no appeal by the Claimant, but it is common ground between the parties that Cohenrich owes the Claimant a sum in excess of USD 8 million. The Court was informed that in the absence of a negotiated settlement (and the parties have been in serious negotiations) a fresh claim would be brought by the Claimant against Cohenrich and the parties appeared to agree that, should this appeal succeed, the fresh claim brought by the Claimant and the counterclaim would then be joined in order to be heard together. That would make obvious sense.

2. The narrow point which arises on the appeal is whether or not Cohenrich properly and adequately pleaded the counterclaim in question which asserted a variation of the Settlement Agreement dated 30 March 2020 which itself provided for repayment by Cohenrich of an assigned debt of USD 11,028.338 by the delivery of cargoes of gasoil on dates between August 2020 and March 2021. The variation which is put forward by Cohenrich is that, in August 2020, it was agreed that the sum would be repaid by the provision of monthly deliveries of oil related products other than gasoline. It is accepted that factual questions do not arise on this appeal in relation to that variation, since the basis of the strike out was a failure properly to plead the variation rather than a failure to adduce evidence in support of it, although it is common ground that one cargo of gasoil (in March April 2020) and one cargo or kerosene (In August/September) were in fact provided.

3. The Settlement Agreement included a clause upon which reliance is placed by