The Es­tate Man­age­ment and Busi­ness De­vel­op­ment Com­pa­ny Ltd (EM­BD) has lost its ap­peal over the de­ci­sion of a judge to grant a sum­ma­ry judg­ment to Ju­nior Sam­my Con­trac­tors Ltd, over ap­prox­i­mate­ly $82 mil­lion in un­paid fees in re­la­tion to res­i­den­tial de­vel­op­ment in cen­tral Trinidad.

De­liv­er­ing a writ­ten judg­ment yes­ter­day, Chief Jus­tice Ivor Archie and Ap­pel­late Judges Char­maine Pem­ber­ton and Ron­nie Boodoos­ingh dis­missed the ap­peal from the spe­cial pur­pose State com­pa­ny, which man­ages lands for­mer­ly owned by Ca­roni (1975) Ltd.

In the judg­ment, the ap­peal pan­el ruled that for­mer High Court Judge Mi­ra Dean-Ar­mor­er was not wrong to award the con­trac­tor a de­fault judg­ment over EM­BD’s in­abil­i­ty to de­fend its case be­fore be­ing el­e­vat­ed to the Court of Ap­peal in 2020.

Ac­cord­ing to the ev­i­dence in the case, the le­gal dis­pute con­cerns a con­tract for the Ca­roni Sa­van­nah Res­i­den­tial De­vel­op­ment un­der­tak­en by EM­BD.

The con­tract was first award­ed to an­oth­er com­pa­ny in 2010 but was ter­mi­nat­ed af­ter it (the com­pa­ny) failed to per­form or com­plete the work.

Ju­nior Sam­my Con­trac­tors sub­mit­ted a $231 mil­lion ten­der for the project and was award­ed the con­tract to com­plete the de­vel­op­ment.

It sued EM­BD af­ter it on­ly paid sev­en of the 13 in­ter­im pay­ment cer­tifi­cates (IPCs), which were ap­proved by the in­de­pen­dent en­gi­neer­ing com­pa­ny ap­point­ed by EM­BD to act as its agent.

In its chal­lenge over the con­trac­tor’s ap­pli­ca­tion for sum­ma­ry judg­ment, EM­BD claimed that it could not pur­sue the ac­tion, as it had as­signed the out­stand­ing pay­ments, which are the sub­ject of the law­suit, to ANSA Mer­chant Bank.

Jus­tice Boodoos­ingh, who wrote the ap­peal pan­el’s judg­ment, stat­ed that Jus­tice Dean-Ar­mor­er was cor­rect to rule that there was not an “ab­solute as­sign­ment”, as Ju­nior Sam­my Con­trac­tors re­tained the abil­i­ty to take le­gal ac­tion over the debt-based agree­ment be­tween the bank and it­self.

He al­so not­ed that his col­league was not wrong to re­ject EM­BD’s claim that the IPCs were in­flat­ed and the work was not com­plet­ed as re­quired un­der the con­tract.

Jus­tice Boodoos­ingh agreed that the EM­BD de­layed mount­ing the chal­lenges af­ter the IPCs were is­sued by its en­gi­neer and the pro­ce­dure un­der the con­tract was not fol­lowed.

“In oth­er words, the con­tract pro­vid­ed a mech­a­nism/process for a claim of this kind. That was not ad­hered to by EM­BD,” he said.

He not­ed that such chal­lenges to the IPCs could on­ly be suc­cess­ful if the EM­BD could prove fraud or de­fects in the work.

“Like the tri­al judge, af­ter care­ful ex­am­i­na­tion of the plead­ed case, we find that there was not enough to sup­port a prop­er plead­ing of fraud or abate­ment,” Jus­tice Boodoos­ingh said.

As part of its de­ci­sion in the case, the ap­peal pan­el or­dered EM­BD to pay two thirds of the le­gal costs in­curred by Ju­nior Sam­my Con­trac­tors in de­fend­ing the ap­peal.

The EM­BD was rep­re­sent­ed by Jonathan Ac­ton Davis, QC, Col­in Kan­ga­loo and Danielle In­gle­field.

Ramesh Lawrence Ma­haraj, SC, Jagdeo Singh, Kiel Tak­lals­ingh, Ka­ri­na Singh and Shas­tine Moti­lal rep­re­sent­ed Ju­nior Sam­my Con­trac­tors.