This order addresses the procedural finality of cost assessments within the Technology and Construction Division, specifically enforcing the consequences of a party’s failure to contest a bill of costs within the prescribed RDC timelines.
What was the specific monetary dispute at stake in the Default Costs Certificate issued in TCD 009/2020 between Five Real Estate Development and Reem Emirates Aluminium?
The dispute concerns the recovery of legal costs incurred during the underlying litigation between Five Real Estate Development LLC and Reem Emirates Aluminium LLC. Following the progression of the substantive matter, the Defendant sought to recover its costs through the formal assessment process. When the Claimant failed to engage with the assessment procedure, the Defendant moved for a Default Costs Certificate to crystallize the amount owed.
The court’s intervention was required to quantify the financial liability resulting from this procedural default. The final determination confirmed the specific sum due to the Defendant, effectively concluding the cost assessment phase of this particular application. As stated in the order:
The Claimant is ordered to pay the Defendant a total of AED 23,013.50 within 21 days of the date of this Order.
This amount represents the total liability imposed upon the Claimant for failing to adhere to the procedural requirements set out in the Rules of the DIFC Courts regarding the filing of Points of Dispute.
Which judge presided over the issuance of the Default Costs Certificate in TCD 009/2020 within the Technology and Construction Division?
The Default Costs Certificate was issued by Deputy Registrar Ayesha Bin Kalban. The order was formally dated 28 July 2021, following the Defendant’s request submitted on 4 July 2021. The matter was handled within the Technology and Construction Division of the DIFC Court of First Instance.
What were the respective procedural positions of Five Real Estate Development and Reem Emirates Aluminium regarding the assessment of costs?
The Defendant, Reem Emirates Aluminium LLC, initiated the cost assessment process by filing a Notice of Commencement of Assessment on 9 June 2021. This filing triggered the statutory timeline for the Claimant to respond. The Defendant’s position was that, having successfully moved the process forward, it was entitled to a certificate of costs once the Claimant failed to meet its obligations.
Conversely, the Claimant, Five Real Estate Development LLC, failed to file any Points of Dispute. Under the RDC, the filing of Points of Dispute is the mandatory mechanism for a party to challenge the reasonableness or proportionality of the costs claimed by the opposing party. By remaining silent and failing to file these points within the 21-day window, the Claimant effectively waived its right to contest the Defendant’s bill, leading to the inevitable issuance of the Default Costs Certificate. This procedural history is linked to earlier developments in the case, such as the FIVE REAL ESTATE DEVELOPMENT v REEM EMIRATES ALUMINIUM [2021] DIFC TCD 009 — Leave to file counterclaim (02 February 2021) order.
What was the precise jurisdictional and procedural question Deputy Registrar Ayesha Bin Kalban had to answer regarding the application of RDC Rule 40.17?
The court was tasked with determining whether the requirements for a Default Costs Certificate had been satisfied under the Rules of the DIFC Courts. Specifically, the Deputy Registrar had to verify if the Defendant had complied with the notice requirements and if the Claimant had defaulted on its statutory deadline to file Points of Dispute. The legal question was whether the court possessed the authority to grant the certificate in the absence of any opposition from the Claimant, thereby bypassing a full oral hearing on the quantum of costs.
How did Deputy Registrar Ayesha Bin Kalban apply the test for a Default Costs Certificate under the RDC?
The Deputy Registrar followed a strict verification process to ensure procedural compliance before granting the request. The reasoning involved confirming that the Notice of Commencement of Assessment was filed on 9 June 2021 and that the subsequent 21-day period for the Claimant to respond had elapsed without any filing of Points of Dispute.
By failing to file the required documentation, the Claimant triggered the mechanism provided under the RDC for the automatic assessment of costs. The Deputy Registrar reviewed the relevant case documents and determined that the Defendant had met all necessary criteria to obtain the certificate. The reasoning is summarized by the court's final order:
The Claimant is ordered to pay the Defendant a total of AED 23,013.50 within 21 days of the date of this Order.
This decision reflects the court's commitment to enforcing procedural deadlines to ensure that litigation does not remain indefinitely unresolved due to a party's failure to participate in the costs assessment process.
Which specific RDC rules govern the issuance of a Default Costs Certificate as applied in TCD 009/2020?
The court relied primarily on Rule 40.15 and Rule 40.17 of the Rules of the DIFC Courts (RDC). Rule 40.15 mandates that a party served with a Notice of Commencement of Assessment must file Points of Dispute within 21 days if they wish to challenge the costs. Rule 40.17 provides the procedural pathway for the requesting party to apply for a Default Costs Certificate when the opposing party fails to comply with Rule 40.15. These rules serve as the primary legislative framework for the summary resolution of cost disputes in the DIFC.
How did the court utilize the RDC framework to resolve the cost dispute in the absence of a hearing?
The court utilized the RDC framework as a self-executing mechanism for cost recovery. By citing Rule 40.15, the court established that the Claimant had a clear, time-bound obligation to contest the costs. Because the Claimant did not fulfill this obligation, the court did not need to conduct a substantive review of the individual items within the bill of costs. Instead, it relied on the procedural default to grant the Defendant’s request under Rule 40.17, effectively treating the Defendant’s claimed amount as the certified amount.
What was the final disposition and the specific relief granted to Reem Emirates Aluminium in this order?
The Deputy Registrar granted the Defendant’s request in its entirety. The court ordered the Claimant, Five Real Estate Development LLC, to pay the Defendant the sum of AED 23,013.50. This payment was mandated to be completed within 21 days of the date of the order, which was 28 July 2021. No further costs were awarded, and the order served as the final determination for this specific application.
What are the practical implications for litigants in the Technology and Construction Division regarding the failure to file Points of Dispute?
This case serves as a reminder that procedural timelines in the DIFC are strictly enforced, particularly regarding cost assessments. Litigants must be aware that failing to file Points of Dispute within the 21-day period prescribed by RDC Rule 40.15 will almost certainly result in a Default Costs Certificate being issued against them. Practitioners should anticipate that the court will not exercise leniency for administrative delays in this context, and that once a Default Costs Certificate is granted, the liability for the full amount claimed by the opposing party becomes immediate and enforceable.
Where can I read the full judgment in FIVE REAL ESTATE DEVELOPMENT v REEM EMIRATES ALUMINIUM [2021] DIFC TCD 009?
The full judgment can be accessed via the DIFC Courts website: https://www.difccourts.ae/rules-decisions/judgments-orders/technology-and-construction-division/tcd-009-2020-five-real-estate-development-llc-v-reem-emirates-aluminium-llc-3 or via the CDN link: https://littdb.sfo2.cdn.digitaloceanspaces.com/litt/AE/DIFC/judgments/technology-and-construction-division/DIFC_TCD-009-2020_20210728.txt.
Cases referred to in this judgment:
| Case | Citation | How used |
|---|---|---|
| N/A | N/A | N/A |
Legislation referenced:
- Rules of the DIFC Courts (RDC) Rule 40.15
- Rules of the DIFC Courts (RDC) Rule 40.17