NGC’s claim against SIS struck out

Lead attorney for NGC, Deborah Peake, SC, in pleading for the previously granted freeze orders to remain, said NGC stood to suffer irreparable substantial losses if SIS and its subsidiary company Rain Forests Resorts Limited (RFRL) were allowed to dispose of its assets which are also the subject of a $400 million arbitration claim over the Beetham Water Recycling Project.

She said there was a real risk of SIS disposing of its cash assets held in banks while it left it open to RFRL to dispose of the mortgages being held for SIS, unfettered. She said there was evidence of SIS disposing of some $30 million in fixed assets in one year prior to the freezing orders being granted and it would be a substantial miscarriage of justice if the injunctions are not continued.

The NGC has 21 days in which to file its application for leave to petition the Privy Council to reinstate its High Court claim for damages against SIS over breach of contract relating to the Beetham Water Recycling Project.

Hearing of the application for leave will take place on January 30.

The court’s decision to stay the operation of its order to strike out NGC’s appeal came after it held that crucial timelines stipulated by the Civil Proceedings Rules for civil cases were not adhered to in the prosecution of the case.

Both parties were seeking a resolution of the matter when the issue of the lapse of deadlines in accordance with the CPR rules came up.

Attorneys for RFRL and SIS, Ramesh Lawrence Maharaj,SC, and Neal Bisnath, respectively, insisted that the rules provide for the flow of cases and, after defences were filed in the matter, NGC failed to adhere to the rules in its prosecution of its claim against their clients.

In a majority ruling, Justices of Appeal Rajendra Narine and Judith Jones agreed with SIS’ contention that the judge was not actively managing the case when NGC failed to adhere to the rules in its prosecution of its claim against SIS and RFRL.

As a result of their ruling, the NGC’s claim against the two companies was struck out.

Justice of Appeal Peter Rajkumar dissented.

In June, Justice Joan Charles ordered that the freezing order on the assets of Super Industrial Services Ltd (SIS) be continued, the National Gas Company (NGC).

On December 23 a court order was granted by the High Court in favour of the NGC against SIS which saw assets in the sum of US$180 million being frozen “until the determination of intended arbitration proceedings between NGC and SIS concerning the Beetham Water treatment Project.” Apart from the freeze remaining, the injunction restraining RFRL from disposing of properties mortgaged to it by SIS was also continued.

Maharaj, in his objection to a stay of the court’s order, warned of the repercussions of such a decision where a party did not have an automatic right of appeal to the Privy Council as was the case with NGC.

“There’s no right of appeal or an application for leave. The claim has been struck out,” he said, adding that NGC had the option of re-filing its claim.