Senior Reporter
derek.achong@guardian.co.tt
A High Court Judge has continued an injunction partially freezing the assets of an attorney as part of a bid by a company to recover $7 million in funds paid to a contractor for a construction project that allegedly did not materialise.
Last Wednesday, High Court Judge Frank Seepersad upheld an ex-parte application from Advance Hose and Marketing Limited, of Ridgewood Heights, Tacarigua, to freeze an account held by attorney Varun Debideen.
When the case came up for hearing yesterday, Debideen’s legal team led by Tom Richards, KC, sought to apply to discharge the injunction. However, the company’s lawyers and those for the other defendants in the case said they needed time to file submissions.
Justice Seepersad eventually decided to extend the injunction until the submissions were filed. He is scheduled to rule on the application on November 28.
In the court filings, the company’s lawyer Karina Singh claimed that on July 19 her client transferred the money to contractor Cordell Philbert, of Royal Palm Gardens, Malabar, Arima, as payment for a prospective construction project.
“The First Respondent (Philbert) has through fraudulent means misappropriated and/or converted the sum of $7 million to his use and benefit,” Singh said.
Before seeking the injunction, the company’s lawyers obtained a Norwich Pharmacal order from a High Court Judge for the RBC Royal Bank (T&T) Limited account held by Philbert to which the company transferred the funds. Such orders seek to compel third parties such as financial institutions to reveal confidential information of their clients, which can be then used to pursue litigation over alleged wrongdoing.
Singh claimed Philbert’s financial records showed that after receiving the funds, $6 million was transferred to Debideen’s account held with Scotiabank. She further claimed that $624,650 was transferred to ZA Limity Engineering Consultancy, a company owned by Joash Ramjattan.
The court proceedings also listed Ramjattan, his company, Mitoonlal Persad and his son Brad as defendants.
Singh said Ramjattan and the Persads were business associates of Philbert and acted as his agents.
“The First (Philbert), Third (Brad), Fourth (Ramjattan), Fifth (Persad), Sixth (Debideen) and Seventh (ZA Limity) Respondents have colluded with the intention of defrauding the Applicant and/or intend to and/or have misappropriated the transferred sum and/or placed the transferred sum beyond the reach of the Applicant,” Singh said.
“The Sixth (Debideen) and Seventh (ZA Limity) are liable in knowing receipt and/or dishonest assistance having received the misappropriated funds and the Claimant is entitled to trace and/or follow the assets into the hands of the Sixth and Seventh Respondents,” she added.
Under Justice Seepersad’s order, Debideen is barred from disposing of $6 million of his assets in the account the money was transferred to by Philbert and his other bank accounts. Debideen was given three days to disclose records of all his local assets exceeding $1 million.
The order did not stop Debideen from spending $10,000 of his funds on living expenses per week.
Presenting submissions on why the injunction should not be continued, Richards said the company failed to plead and evidence of any fraud on Debideen’s part.
“You cannot just make allegations. Facts have to be pleaded,” he said. “There must be solid evidence. Mere inference is insufficient.”
Richards said there was no evidence that his client would seek to dissipate the funds in his account pending the determination of the case.
In his submissions, the company’s lawyer Jagdeo Singh noted that his client sought the injunction and other preliminary orders to craft their case.
“The circumstantial evidence is overwhelming at this stage,” he said.
Singh also took issue with Debideen’s claim that the money represented a loan between Philbert and Ramjattan, whom he represented in separate legal proceedings.
Referring to a loan agreement between the two which was prepared by Debideen and disclosed in response to the case, Singh said: “If there was ever a document which screams sham from the top of a mountain, it is this.”
Noting that the money was purportedly lent without interest and a payment plan, Singh said: “Let’s call it for what it is. We can dress it up but it makes absolutely no commercial sense.”
In her submissions, attorney Kerra Bazzey, who is representing Philbert, asked for the application to be disclosed to her client as he was concerned by the claims about the purported loan.
While Justice Seepersad agreed to extend the injunction, he varied it so that Debideen would not be required to provide records of his assets as initially ordered.
In his affidavit attached to the application, Debideen denied any wrongdoing. He claimed that the money advanced by Philbert to his client under the loan agreement was used to pay his client’s debt incurred in a separate case.
He also alleged that he was only informed of the legal proceedings when he was contacted by reporters and saw their subsequent television and newspaper reports. He noted that the reports have negatively impacted his career.
“Since the order has been publicised I have taken a serious hit to my professional reputation and integrity, intangible assets which are the cornerstone of any attorney’s practice,” he said.
“I have, since the making of this order, received no telephone calls from prospective clients. Persons from whom I had begun taking instructions have distanced themselves from me and are not taking my calls.”
Debideen is also represented by Kent Samlal, Umesh Maharaj, and Narisa Bala.
