Simply put! Super Industrial Services Limited (SIS) is the winner, and State-owned National Gas Company (NGC), is the loser, in a multi-million dollar case brought by NGC late last year.
On Wednesday, the Court of Appeal by a 2-1 majority dismissed NGC’s case and ruled that the case was filed outside the stipulated time.
NGC had filed the case against SIS and Rain Forest Resorts Ltd relative to the construction of the controversial Beetham Water Recycling Plant.
The Appeal Court agreed with submissions by the attorney representing SIS that the claim could not proceed any further. This was so given that crucial timelines stipulated by the Civil Procedure Rules (CPR) were not adhered to in the prosecution of the case at the High Court.
Ramesh Lawrence Maharaj SC made submissions on behalf of SIS and Rain Forest Resorts before Justices Rajendra Narine, Judith Jones, and Peter Rajkumar after the same submission failed before Justice Joan Charles at the High Court in June, which saw the judge upholding a freezing order on $180 million worth of assets belonging to SIS.
The freezing order was granted by Justice Frank Seepersad last December 23 when National Gas Company (NGC) initiated court action one month after it announced it had terminated a contract with SIS for the construction of the Beetham waste water recycling plant.
NGC claims it entered into the contract with SIS for the “design and build” on the project on March 10, 2014, at a cost of US$162,055,318.77.
The completion date, as agreed to in the contract, was October 21, 2015. NGC said SIS failed to complete the project, having indicated in writing that they are unable to continue the works in accordance with the contract.
But SIS and Rain Forest Resorts cannot access or dispose of its assets just yet. The Appeal Court granted a stay on the lifting of the freezing order. The order will remain in effect until the hearing and determination of an application for leave by NGC to proceed to the Privy Council in England.
Deborah Peake SC, who appeared for NGC, asked for the stay pending a final appeal. Maharaj objected.
Peake contended that her client had the intention of appealing the Court of Appeal’s decision at the Privy Council and that should the injunction not remain in effect, the court would be allowing SIS and Rain Forest Resorts the freedom to dispose of the assets.
She pointed out if NGC were to emerge successful in the Privy Council, it would still suffer an irreparable loss since it is likely there will be no assets.
“What would be the point of taking the matter to the Privy Council if in between the order of the Court of Appeal and the order of the Privy Council they are able to access and dispose of the assets?” Peake asked.
Maharaj submitted that the court could not lawfully grant Peake’s request. He said the court could not make any interim order when there is no undoubted right by NGC to appeal. Maharaj said what Peake was effectively doing was making an application before the court for a stay of the order pending the making of another application for leave to petition the Privy Council.
He submitted that if Peake wished to apply for a stay of the freezing order, what she needed to do was to first file the application for leave to the Appeal Court to challenge its ruling at this country’s final Court of Appeal.
The court ordered that the freezing order stays pending the hearing and determination of the application for leave which is listed for January 30, 2017.
JUSTICE RAJENDRA NARINE
JUSTICE JUDITH JONES
JUSTICE PETER RAJKUMAR