The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

An attorney for SuperClubs Breezes says he has “never experienced a more blatant trespass” in three decades of conveyancing practice than that allegedly seen in the hotel’s ‘land swap’ battle with Baha Mar.

R James Cole, a partner with the Higgs & Kelly law firm, in an affidavit filed with the Supreme Court slams the $3.5 billion developer’s approach as “simply unheard of”.

Responding to an affidavit from Tracy Ferguson, Baha Mar’s associate general counsel, Mr Cole refuted claims that the land swap agreement gave his client “substantial economic and other benefits”, and was tilted in its favour.

He alleged that the $2.1 million price attributed by Ms Ferguson to a net 2.127 acre land parcel, set to be conveyed to Breezes as part of their ‘swap’ agreement, included the cost of constructing the latter’s new wastewater treatment plant on it.

And, Mr Cole pointed out, the cost of such land to Baha Mar’s golf affiliate, BMP Golf, was far less based on the 2005 purchase price it obtained in the developer’s original deal with the Government.

Mr Cole alleged that BMP Golf (Baha Mar) paid “just” $3.175 million for 144.377 acres of “prime land” from the Hotel Corporation of the Bahamas those nine years ago, equating to $21,994 per acre.

Describing this as a “far cry” from the values asserted in Ms Ferguson’s affidavit, Mr Cole alleged: “Ostensibly, therefore, the actual cost to Baha Mar of the new wastewater treatment plant parcel (comprising 0.66 of an acre and excluding the cost of constructing the new plant built thereon) is just $14,514, and the additional parcel (comprising 2.127 acres of land) is $46,775.”

And Mr Cole further alleged that Baha Mar had failed, despite Breezes’ requests, to provide any permits and approvals for the various construction-related activities it was performing on land which, still owned by the latter, is part of their 2011 ‘land swap’.

“Despite Breezes raising this issue, Baha Mar have failed to produce any lawfully required permits under any Building Regulations Act or Planning and Subdivisions Act for any of its construction and/or building activities on Breezes’ property,” Mr Cole alleged.

“Not only is Baha Mar trespassing, destroying Breezes’ legal property it is beneficially entitled to, Baha Mar is apparently doing all of this without necessary legal permits.”

Mr Cole’s affidavit is thus the latest legal salvo fired by the two Cable Beach developers in their fight over the 2011 Letter of Intent (LOI), which sets out the terms of the land swap arrangement designed to facilitate the $3.5 billion project and their respective expansion plans.

The two parties have yet to complete on the Letter of Intent’s terms. And, with Baha Mar enjoying effective possession of SuperClubs Breezes’ former land, and the associated benefits, the latter’s parent company, PPL (Nassau), is now seeking a Supreme Court injunction to return both sides to their original positions until final completion.

The Supreme Court, in the shape of Justice Milton Evans, has reserved its ruling on the matter after hearing from both sides on Thursday. Fred Smith QC, of Callenders & Co, represented Breezes, while John Delaney QC, of Delaney Partners, represented Baha Mar.

Outlining Baha Mar’s position, Ms Ferguson said the developer’s position is that “from the date of the Letter of Intent”, both sides became beneficial owners of the land parcels they were due to receive under the swap agreement,

She alleged that there was nothing to prevent either party “entering into possession” of the land parcels each was to receive prior to title transfer and the Letter of Intent completion.

However, in response, Mr Cole, who is Breezes’ transaction attorney for all real estate and commercial letters related to the LOI, alleged: “In all of the countless transactions I have been involved with in more than three active decades in practice, I have never experienced a more blatant trespass and unlawful taking of property, prior to completion, in any conveyancing transaction.

“It is simply unheard of. Despite remarkable patience and perseverance on the part of Breezes, the exchange of lands contemplated by the LOI still have not been completed.

“And now the unbridled arrogance and unchecked ‘you’ll take whatever we choose to give you or be damned’ attitude of Baha Mar have compelled Breezes to invoke the equitable jurisdiction of the court to protect Breezes from ongoing trespass upon Breezes’ property, and from further derogation of Breezes’ property rights.”

Mr Cole alleged that his affidavit was intended to “set the record straight”, adding that Breezes had yet to “receive anything more than it enjoyed” before the LOI was signed.

He added that his client was “enjoying less now than before the LOI was signed”, as its former wastewater treatment plant and associated land had now been “commandeered by Baha Mar for its own use” and no compensating land transferred to Breezes.

Refuting claims that Breezes was delaying LOI completion in a bid to gain leverage over Baha Mar, Mr Cole alleged that there were three “real reasons” why the land exchanges had not been completed.

These, he claimed, were Baha Mar’s failure to respond to some of Breezes’ title-related questions; Baha Mar’s failure to obtain title insurance to deal with issues the developer was unable to resolve; and not delivering transaction documents as stipulated under the LOI.

Noting that some land parcels were still encumbered by bank-related liens and charges recorded in the Register of Records, Mr Cole said he had now been waiting 34 months for the lenders involved to provide evidence all such charges had, or could be, removed.

“Not only has Breezes faithfully sought to carry into effect the land exchanges contemplated by the LOI, and performed all of its obligations thereunder to-date, it must be noted that it is only Breezes who is seeking specific performance of the LOI,” Mr Cole alleged.

He also denied as “irrelevant and spurious” claims by Ms Ferguson that Breezes and its owner, John Issa, had previously attempted to pressure Baha Mar into a “coercive deal”earlier in their negotiations, adding that the LOI was struck for both parties’ “mutual benefit”.

Mr Cole said Breezes was seeking an injunction that would see each resort retain ownership of its respective properties pending LOI completion, with access by the other only granted in accordance with that agreement’s terms.