Success Stories in Legal Services - uae
Home » About Us » Success Stories

Success Stories – Khairallah Advocates & Legal Consultants

Landmark judgment under labor case

Continuation of employment relationship in the event that the Employee is suspended from work without justification.

Under an unlimited term labor contract, our Client (Employee) entered into an employment relationship with the Defendant Company, the Defendant Company suspended the Employee from work without justification for more than a year and six months and therefore the Employee filed labor case against the Employer.

The Plaintiff claimed full salaries, labor dues and compensation for unfair dismissal for period from the date of his suspension from work until date of registering labor complaint.

The Defendant Company before the Court of First Instance stated it terminated the Employee’s services after three months had passed from the date he was suspended and argued case was time barred as period of one year lapsed.

Court of First Instance ruled case was time barred.

We firmly challenged judgment before Court of Appeal and claimed that suspension from work by the Defendant Company was unjustified, and our Client was not notified. Hence employment relationship remained continuous until the date of submitting the labor complaint

Accordingly, Court of Appeal accepted our arguments and overturned Court of First Instance judgment and obliged the Defendant Company to pay full salaries from date of suspension until labor complaint was registered, leave allowance, gratuity, compensation for unfair dismissal, air ticket and experience certificate.

How to protect Trademark Infringement & Counterfeiting in the UAE

It was not a great surprise for the owner of a well-known water brand (Plaintiff) carrying business since 1969 in several countries to find its trademark was registered by Competitor Company (Respondent) in the UAE enjoying their trade name.

When approached the concerned Ministry, Plaintiff was surprised by finding that the Respondent registered their trademark under same category/activity already.

Plaintiff sent warning notice to Defendant for canceling registration, but no avail. Hence, on behalf of Plaintiff we referred the matter to Dubai Courts with claim to abolish/cancellation of registration of trademark in Ministry relying on several articles from the law and supporting judgments.

In precedent judgment we got in favor of our Client (Plaintiff), we successfully proved counterfeiting of trademark was to create a brand which is similar to the original brand which will likely mislead public/consumers, the awareness and recognition of the ordinary consumers was taken into consideration.

SUCCESS STORY IN TAXATION CASE

Khairallah Advocates & Legal Consultants obtained landmark judgment against Federal Tax Authority (FTA), revoked decision issued by the Committee of Resolution of Tax Disputes in the Emirate of Dubai imposing penalties imposed as per clause (9) and (11) of Table (1) of the Cabinet Decision No. (40) of 2017.

We firmly objected to above because of misapplication of the law, being defective in reasoning and lacking the proper substantiation; decision has violated Article 25(i) of the Law of Tax Procedures because the penalty is applied in case of not paying the due tax within the prescribed time limit calculated after the expiry of the tax period plus the next time limit granted by the Law to the Taxable person.

The attorney of the Defendant challenged proceedings by relying on Article 32 and Article 33 of the Federal Law No. 7 of 2017 concerning the Tax Procedures.

In terms of subject matter:

It is established that the trial Court has the authority to understand the material facts of the case, estimate and weigh between the proofs submitted therein, provided that the Court ends with a reasonable judgment that is supported by the case documents.

It is established by the case documents that the FTA has not provided any evidence on notifying our Client and FTA’s non-acceptance of the requests for re-consideration is baseless; as Article 11 of the Law of Tax Procedures has explained the methods of notification by sending the notice to the through the address stated in the correspondence between FTA and that Person, bearing in mind that the FTA is responsible for the notification and nothing in the case documents proves that the FTA has fulfilled such responsibility, and the plea raised by the FTA that the penalty was imposed electronically on 07/10/2019 via FTA’s system does not meet the requirements of notification.

As for the substantive please:

The FTA alleges the necessity for applying the penalty for the delay in paying the tax differences under the voluntary disclosure, which is considered an amendment of the tax return submitted by our Client, but the Legislator had made the imposition of this penalty under Article 11 of the said decision no, (40) conditional on the presumption that the mistake contained under the tax return or the tax assessment results in non-payment of the tax itself by the taxable person due to such mistake, but for which there would be no penalty, and after the application of the penalty provisions imposed on administrative violations under the Cabinet Decision No. (4) of 2017 which apply to certain incidents separately, in which case the Legislator has prescribed a separate provision for each violation, on contrary to the interrelated incidents as is the case in the current incident.

ACCEPTANCE OF JURISDICTION OF COURT OVER JUDICIAL COMMITTEE ESTABLISHED TO HEAR MATTER RELATED TO FINANCE COMPANY

Khairallah Advocates & Legal Consultants successfully represented Client in real estate matter in defending jurisdiction of Court over Judicial Committee.

The Contestant had filed plenary real estate against the First Contestee before the Honorable Dubai Court of First Instance, whereby he asked the Court to: 1) invalidate the contract of sale under disputed, and – alternately – to terminate the contract, and in all cases, to obligate the first Contestee to pay the Contestant the amounts previously paid by the Contestant plus an interest at 12% as of the date of judicial claim till the date of full payment; 2) obligate the First Contestee to pay the Contestant compensation.

This was on the pretext that the Contestant had, on 01/06/2008, purchased from the first Contestee an off-plan real estate unit. The sale contract provides for referring any dispute that may arise between the two parties to arbitration so as to be settled in accordance with DIAC Rules. After a dispute had arisen between the parties concerning the implementation of the sale contract, the Contestant Case before Dubai International Arbitration Centre (DIAC), on which a judgment was rendered on 31/07/2013, but the first Contestee has not executed the arbitral award; a matter which forced the Contestant to file plenary real estate case for the purpose of approving the arbitral award. As a result, the Court has approved the arbitral award, which was upheld. However, this judgment was canceled by the judgment rendered on challenge given the invalidity of the said arbitral award. 

Although 10 years had passed over, the first Contestee had neither completed the project nor handed over the disputed unit yet; a matter entitles the Contestant to request terminating the sale contract and receive compensation for retaining the unit price by the first Contestee. Therefore, the Contestant had filed new case. 

During the hearing of 26/12/2017, the first Contestee submitted the non-acceptance of the case given the existence of the arbitration condition and requested joining the Second Contestee in its capacity as the new developer of the project where the unit subject of the case locates.

During the hearing of 21/02/2018, the attorney of the Second Contestee requested not to accept the case given the existence of the arbitration condition and not to accept the case given the lack of capacity; and joined the Third Contestee so that the judgment is rendered against it. However, the Third Contestee submitted the non-jurisdiction of the Court to consider the case because only the Judicial Committee formed by Decree No. 61 of 2009 has the jurisdiction to consider the case. 

On 13/11/2018, the Court ordered: 1) not to accept the submission made by the Second Contestee regarding the non-jurisdiction of the Court to consider the case and 2) not to accept the case against the Second Contestee due to lack of capacity.

The Contestant had appealed this judgment by appeal, in which the Court ordered to appoint an expert in the case. After the appointed expert had lodged a report in the case, the Court ordered, on 13/11/2019, to cancel the appealed judgment and ordered that Dubai Courts have no jurisdiction to consider the case and to refer the case to the Judicial Committee formed by Decree No. 61 of 2009. The Contestant had filed challenge by cassation subject to a statement that was lodged before the Case Management Office on 09/01/2020, whereby he requested overruling this judgment and the attorney for the Third Contestee submitted, within the legal period, a defense memo whereby he requested the dismissal of the challenge.

The challenge fulfills the legal formalities.

The Contestant’s objection to the contested judgment is based on the pretext that the judgment had violated and misapplied the law, had been based on wrong inference and violated the material facts established by the case documents because it had ordered that Dubai Courts have no jurisdiction to consider the case and to refer the same to the Judicial Committee formed by Decree No. 61 of 2009, which is competent to consider disputes relating to Finance Companies, bearing in mind that the Third Contestee was joined into the case so as to hear the judgment to be rendered in the case without holding it responsible for any requests, i.e. the Third Contestee is not a real litigant in the case so that the jurisdiction is given to the said Committee, which means that the Court shall remain having the basic jurisdiction to consider the case; a matter which renders the contested judgment worthy being dismissed because of its defectiveness.

This objection is validly based because it is established by this Court that the Plaintiff is free to specify the scope of the case in terms of litigants unless the Law provides for litigating certain persons in the case. Besides, it is also established that the core point in determining the litigants is the requests raised under the case. If a litigant was joined before the Court of First Instance to hear the judgment to be rendered therein because of being considered as interested party, if the litigant is joined in the case to hear the judgment or have the judgment rendered towards it, then this litigant shall neither be considered as a real litigant nor the judgment has any force against it. And the Contestant has joined the Third Contestee so as to hear the judgment to be rendered in the case without holding the Third Contestee in charge of any requests, not to mention that neither the Third Contestee has objected to the requests raised by the Contestant nor the Contestant has a judgment rendered in his favor concerning these requests against the Third Contestee. Therefore, neither can the Third Contestee be considered as a real party in the case nor the rendered judgment has any force against it regardless of the submission raised by the Third Contestee concerning the lack of jurisdiction of the Court to consider the case because this submission neither can be considered as a dispute with the Contestant’s requests nor renders the Third Contestee a real party in the case. However, the contested judgment has, out taking into account this issue, ordered that Dubai Courts have no jurisdiction to consider the case and referred the case as-is to the Competent Judicial Committee in pursuance of Decree No. 61 of 2009, so the contested judgment has misapplied the law, and as a result, such misapplication of the law made the Court not to consider the subject of the appeal, a matter which renders this judgment defective regardless of the other aspects of the challenge, so the Court shall overrule this judgment and refer the case to the competent Court.

REAL ESTATE DISPUTE

We, Khairallah Advocates & Legal Consultants represented a Client (Purchaser) in real estate dispute against one of the leading property Developers in Dubai.

The dispute arises from an agreement concerning the sale of a property unit in Dubai entered into in 2008.

Estimated completion date for the property was December 2009 which may be extended for a period not exceeding twelve (12) months.

The property was not completed by the original Completion Date. Beyond this, the facts were heavily contested.

The Developer raised jurisdictional objections and claimed that person who signed the SPA on behalf of the Developer had no authority to agree on arbitration hence case must be rejected. The Developer referred to articles from the UAE Companies Law stating that an arbitration agreement must be “expressly granted” by the company’s Articles of Association or objectives. In case of a Limited Liability Company, there are only three ways in which an individual can validly bind the company to arbitration: (i) it is expressly permitted in the Articles of Association (ii) or the company’s objectives; and/or (iii) the General Manager either enters into the arbitration agreement himself or expressly authorizes another individual to do so.

As none of these scenarios came to pass, the Developer asserted that person who signed had no authority to agree to arbitration and submitted witness statement to support their claim.

We firmly challenged above to prove that person who signed the SPA had authority and capacity to agree to all the terms therein, including the arbitration clause and relied on principles of good faith, implied and apparent authority and argued that signatory’s authority can be ratified at a later time.

The Tribunal accepted our arguments and rejected jurisdictional objections raised by the Developer confirming jurisdiction to hear and adjudicate this case.

On merits of the case the Developer stated that the Purchaser defaulted since December 2008 when the third instalment of the property was due and relied on Article 247 of the UAE Civil Code to highlight there position to suspend performance of its obligations to carry out the construction of the property and deliver the property by the Completion Date for as long as the Purchaser remained in breach and also challenged that the Purchaser had no right to serve Termination Notice as he was in payment default and property was completed.

The Developer claimed that they served three notices to the Purchaser on 25 May 2009 to extend completion date to June 2010, notice in July 2011 to extend completion date to March 2012 and Property Completion Notice in June 2014.

We challenged authenticity of documents submitted by the Developer and based our claim as per UAE Civil Code particularly Article 272 which states that: 1. In bilateral contracts, if one of the parties does not perform his contractual obligations, the other party may, after serving a formal notification to the debtor, demand the performance of the contract or its rescission. 2. The judge may order the debtor immediate performance of the contract or grant him specified additional time, as he may order rescission with damages, in any case, if deemed justified. 

We supported our arguments with principles from Dubai Court of Cassation.

Taking our arguments into consideration, the Tribunal ordered the termination of the SPA.

For real estate disputes, feel free to contact us.

ENFORCEMENT OF ARBITRATION AWARDS

Khairallah Advocates & Legal Consultants successfully enforced numerous arbitration awards through courts in the UAE.

Application for the enforcement of an arbitration award can now be brought directly before the UAE Court of Appeal.

The Chief Justice of the Court or whoever he delegates from among its judges shall order the arbitral award confirmed and enforced within sixty days of submission of the request for its confirmation and enforcement, unless it finds one or more of the grounds for setting aside the award under section 1 of Article 53 of Arbitration Law.

Law set a 30-day time limit for a party to challenge the validity of a final award before the relevant UAE Court of Appeal. A challenge to the validity of the final award may also be made in defense to an enforcement application filed by an award creditor outside the 30-day time-limit.

An action to set aside an arbitral award does not stay its enforcement. Nevertheless, the Court seized of the action to set aside the award may order a stay of enforcement if so requested by a Party showing good cause.

The Court shall decide the request for a stay of enforcement within fifteen days after the date of the first scheduled hearing.

If a stay is ordered, it may require the party seeking the stay to provide a given security or monetary guarantee. The Court then has sixty days from the date of the stay order to decide the action to set aside.

Contact us to know more.

Subscribe and get Legal Consultation now!

Subscribe and get Legal Consultation now!

Join our mailing list to receive the latest news and updates from our team.

You have Successfully Subscribed!