The National Gas Company (NGC) has won its lawsuit against Super Industrial Services (SIS) over an alleged move to dispose of its assets pending the resolution of arbitration proceedings over the controversial Beetham Water Treatment Plant.
Delivering judgment at the Hall of Justice in Port-of-Spain yesterday, Justice Joan Charles upheld the State-owned energy company’s challenge over a series of financial instruments executed by SIS, which it claimed were designed to ensure that it would not be able to recoup any money, in the event that it succeeds in the arbitration proceedings.
According to the evidence presented by NGC’s lawyers in the case, in March 2015, months before NGC eventually terminated the contract, SIS took five loans from its subsidiary Rain Forest Resorts Limited at a total value of $330 million.
Several months later, SIS executed four mortgages and a debenture, under which SIS assigned all of its assets to be used security to cover the loans.
The company also claimed that after it filed the claim, both SIS and Rain Forest Resorts admitted that no money was transferred between them, despite the mortgages being registered.
While NGC admitted that the transactions did not appear to be fraudulent on the surface, it suggested that evidence gathered by it revealed that they (the financial instruments) were intended to sully its chances of potentially recouping the money as the alleged debt to the subsidiary would have to be cleared first.
NGC first sued the companies in December 2015 after it began arbitration proceedings against them over the still-incomplete water treatment plant.
While the project was estimated to cost US$162,055,318.77, NGC was seeking to recover $400 million, which was advanced to SIS before the contract was cancelled in 2016. The arbitration is still pending and will not be affected by the case before Charles.
Through the lawsuit, NGC was seeking orders setting aside the four mortgages and a debenture.
It initially obtained an injunction freezing $180 million of the companies assets pending the determination of the lawsuit.
While the injunction application was being decided, SIS and Rain Forest Resorts applied to have the claim struck out based on the fact that NGC failed to meet the deadline for applying for a case management conference of the substantive claim.
The Court of Appeal delivered a majority judgement in which it overturned Charles’ decision and struck out the claim.
While the Appeal Court’s decision was upheld by the Privy Council, NGC was still allowed to pursue the claim as it had a pending relief from sanctions application, which was put on hold while the issue was being appealed.
NGC was represented by Deborah Peake, SC, Jason Mootoo, and Savitri Sooraj. SIS was represented by Neal Bisnath and Lydia Mendonca, while Ramesh Lawrence Maharaj, SC, and Navindra Ramnanan represented Rain Forest Resorts.
Reporter: Derek Achong