A pair of busi­ness­men have suc­ceed­ed in their bid to be re­moved from a law­suit over a failed zip-line project for To­ba­go’s Main Ridge For­est Re­serve.

In a re­cent de­ci­sion, High Court Judge Karen Reid dis­missed the fraud­u­lent mis­rep­re­sen­ta­tion case against Richard “Rick” Gra­ham and Dar­ren Hre­niuk, which was brought by the To­ba­go House of As­sem­bly (THA) in 2022.

The out­come was not a to­tal de­feat for the THA, as it was al­lowed to con­tin­ue the law­suit against OCT En­ter­pris­es Lim­it­ed, a com­pa­ny reg­is­tered in the British Vir­gin Is­lands (BVI) that it en­tered in­to a con­tract with for the project.

The law­suit stemmed from a ser­vices agree­ment signed be­tween the THA and OCT En­ter­pris­es to con­struct the project in 2015.

The to­tal cost of the project was es­ti­mat­ed to be US$531,610. The THA paid the com­pa­ny US$416,900, but it was not com­plet­ed.

In 2022, the THA filed the case al­leg­ing that Gra­ham and Hre­niuk false­ly rep­re­sent­ed that OCT En­ter­pris­es was a le­git­i­mate­ly reg­is­tered com­pa­ny. It al­so con­tend­ed that the duo mis­rep­re­sent­ed that they were di­rec­tors of the com­pa­ny and failed to de­liv­er on the project.

They were al­so ac­cused of sell­ing ma­te­ri­als for the project that were stored in a ware­house in Mi­a­mi and not ac­count­ing for the pro­ceeds.

The duo de­nied any wrong­do­ing as they claimed that the project failed based on the THA de­fault­ing on its con­trac­tu­al oblig­a­tions. They al­so al­leged that they nev­er per­son­al­ly re­ceived the funds ad­vanced by the THA to the com­pa­ny.

In her de­ci­sion, Jus­tice Reid ruled that the THA’s claims in re­la­tion to the duo were spec­u­la­tive and un­sub­stan­ti­at­ed.

“In my view, the claimant’s case in fraud against the first and sec­ond de­fen­dants is hope­less,” she said.

“The claimant’s ar­gu­ments in re­la­tion to fraud/fraud­u­lent mis­rep­re­sen­ta­tion against the first and sec­ond de­fen­dants were en­tire­ly spec­u­la­tion and con­jec­ture based on in­cor­rect re­sults of a search of the BVI com­pa­nies’ reg­istry,” she added.

She not­ed that OCT En­ter­pris­es is a lim­it­ed li­a­bil­i­ty com­pa­ny with a sep­a­rate le­gal iden­ti­ty.

“Pierc­ing the cor­po­rate veil in or­der to at­tach per­son­al li­a­bil­i­ty to its di­rec­tors is ex­ceed­ing­ly rare,” she said.

“Any ac­tion in re­spect to the third de­fen­dant’s (OCT En­ter­pris­es) fail­ure to per­form the ser­vices un­der the ser­vices agree­ment will lie against the third de­fen­dant on­ly and not its di­rec­tors through whom it act­ed,” she added.

Based on her de­ci­sion, Jus­tice Reid lift­ed freez­ing or­ders against the duo’s as­sets, which were sought and ob­tained by the THA when it filed the case.

While the case was in a pre­lim­i­nary stage, the THA ap­plied for a de­fault judg­ment against the de­fen­dants af­ter they missed an ex­tend­ed dead­line for fil­ing their de­fences.

The ap­pli­ca­tion was dis­missed, and the case was al­lowed to pro­ceed.

The is­sue with the project was raised by THA Chief Sec­re­tary Far­ley Au­gus­tine while ad­dress­ing a po­lit­i­cal meet­ing in Scar­bor­ough in the run-up to the THA elec­tions in Jan­u­ary 2021.

He ac­cused for­mer Peo­ple’s Na­tion­al Move­ment (PNM) To­ba­go Coun­cil po­lit­i­cal leader Tracey David­son-Ce­les­tine of cor­rup­tion in re­la­tion to the project.

David­son-Ce­les­tine de­nied any wrong­do­ing, as she claimed that the project had bare­ly be­gun when she left her role as THA tourism sec­re­tary to take up the post of T&T Am­bas­sador to Cos­ta Ri­ca in 2017.

David­son-Ce­les­tine filed a defama­tion law­suit against Au­gus­tine over his com­ments.

In late 2022, the law­suit was dis­missed be­fore go­ing to tri­al be­cause of a tech­ni­cal pro­ce­dur­al is­sue.

In a state­ment at the time, David­son-Ce­les­tine claimed that the out­come was not based on the “tact or skill” of Au­gus­tine’s le­gal team or an analy­sis of the mer­its of her case but rather be­cause she was forced to change her le­gal team short­ly af­ter it was filed.

Ac­cord­ing to David­son-Ce­les­tine, the change was nec­es­sary as her for­mer at­tor­ney, John Je­re­mie, SC, was re­tained by the THA to pur­sue the case against the com­pa­ny and its di­rec­tors.

She vowed to re­file the case against Au­gus­tine.

The THA was rep­re­sent­ed by Je­re­mie, Tim­o­thy Af­fon­so, and Whit­ney Ja­cobs. The duo and the com­pa­ny were rep­re­sent­ed by Sophia Chote, SC, and Ki­jana De Sil­va.