By LAMECH JOHNSON
Tribune Staff Reporter
ljohnson@tribunemedia.net
JUSTICE Ian Winder said on Friday that he required two weeks to come to a decision on whether to grant - or strike out - the government’s winding up petition for the appointment of provisional liquidators to speed up completion of the stalled Baha Mar development.
The adjournment of the matter to September 4 followed three full days of legal arguments from counsel for the government and the Cable Beach resort on the former’s attempt to wind up Baha Mar Ltd, Baha Mar Land Holdings Ltd, Baha Mar Properties Ltd, BMP3 (Wyndham Hotel) Ltd, BMP Golf Ltd, Cable Beach Resorts Ltd and Baha Mar Enterprises Ltd on the basis that is owed upwards of $59m by the various companies.
In Friday’s proceedings, Baha Mar’s Queen's Counsel James Corbett completed the submissions he had begun on Thursday.
He and fellow QC, Maurice Glinton, argued that Justice Winder was duty bound to void the proceedings having been notified on Wednesday that the government’s filed petition was allegedly in breach of Order 24 (1) of the Companies Liquidation Rules (CLR).
It was a direct response to the government’s attorney, Peter Knox, QC, who told the judge on Wednesday that seven new petitions had been filed against Baha Mar in addition to the original one if the judge accepted Baha Mar’s position that the Attorney General’s initial petition was invalid.
Mr Corbett, on Friday, further argued that the petitioners had put forth no authority case that the “public’s interest” was a ground to justify the petition.
“Public interest is not at the heart of this petition,” he said, adding that the argument “would have to be provided for in legislation, which it is not in Bahamian law”.
“That being the case, no winding up petition should be made with allegations that are not supported and founded on no statute, or case, or evidence that goes to the heart of the petition.”
Mr Corbett added that even if the court accepted the view that the resort and affiliated companies were insolvent, “the applications do not meet statutory requirements”.
He stressed that the appointment of provisional liquidators, according to the law, “is not a matter of right but of discretion. Your lordship always has discretion,” Mr Corbett said.
He expressed scepticism that the appointment of provisional liquidators, as had been argued by the government, was merely to have provisional liquidators make arrangements between the parties to speed up the resort’s completion.
He stressed that it was not in the public’s interests that provisional liquidators be appointed, expressing doubt that the prospective provisional liquidators would be picking up shovels to complete the work if they are, in fact, appointed.
Mr Knox, in response to Baha Mar’s strike out application, maintained that the respondent companies “are undoubtedly insolvent and have been for two months”.
“Every day that passes, creditors interests are at risk,” Mr Knox argued, adding that the public interest was also at risk with international credit rating agencies suggesting a downgrade in the country’s credit rating if Baha Mar’s dilemma is not immediately resolved.
Mr Knox further argued that the respondents have not answered the point that it was necessary to put mechanisms in place by the Supreme Court to protect both the resort's assets and the creditors' interests.
On June 29, Baha Mar and 14 of its affiliated companies filed for bankruptcy in a Delaware court, blaming the resort’s contractor, China Construction America (CCA), for the construction delays that caused it to miss previous opening deadlines.
The resort also took legal action against CCA’s parent company China State Construction Engineering Corporation (CSCEC) in the English High Court.
On July 1, US Judge Kevin Carey approved the resort’s request to begin tapping into $80m in financing to keep the resort on track for opening while it undergoes Chapter 11 bankruptcy proceedings in that state.
However, the Delaware judge’s approval of the debtor in possession financing request was conditional on the approval of the Bahamas’ Supreme Court.
Justice Winder, who presided over Baha Mar’s application for the foreign court’s ruling to take effect, dismissed that request.
Justice Winder said on Friday afternoon he would deliver a ruling on September 4 concerning the winding-up petitions.
If the government's petitions are approved, provisional liquidators could be appointed from Ernst and Young, though an issue of a potential conflict had raised in an affidavit filed by the petitioners and addressed by Baha Mar’s legal team on Thursday.
Ernst and Young’s legal representative in the proceedings - Megan Taylor - said the assertion that the firm could not be a provisional liquidator is unsustainable as the company is not a creditor of Baha Mar.
Comments
wave 8 years, 8 months ago
Justise Winder, if you allow this you will for ever be known as the country that steals investments from honest hard working people and you sir will be the nail in the coffin !
ThisIsOurs 8 years, 8 months ago
But if he doesn't allow it, he will be known as the judge who gave away our sovereignty. He has a very tough decision to make, he can only choose A or B. Knowing his reputation, I'm positive he will make his decision on the weight of the cases presented to him.
My2cents 8 years, 8 months ago
The concern about sovereignty is disingenuous. The government had no real reason to interfere with BahaMar and its decision to file chapter 11. If this is their main argument, and the judge decides to proceed with winding up process, his collusion with the plaintiffs will be abundantly clear.
Wideawake 8 years, 8 months ago
QCs Corbett and Glinton provided seemingly valid arguments that present Justice Winder with sound technical and procedural reasons to strike out the government's winding up petition against Baha Mar.
Perhaps, with hindsight, government wishes it had never started this ill-conceived attempt to wrest control of Baha Mar away from Mr. Izmirlian.
Zags 8 years, 8 months ago
The Bahamas cannot afford to be known as yet another third world/developing country which nationalises private assets. Not only would this be a huge step toward the dismantling of our democracy, it would be the prelude to our death.
PKMShack 8 years, 8 months ago
PLP has put our country in a big spiral with this move. BUT to them it makes pure sense. When he awards this petition it will be sent to the privy council and dismissed. In the mean time 5 yrs later!
Well_mudda_take_sic 8 years, 8 months ago
Well, let's once again just take a brief moment to consider the background of the Judge (Justice Ian Winder) who was assigned this very weighty complex case of enormous national import. The Supreme Court's own website, not yet updated for the departure of Michael Barnett as Chief Justice, shows that Justice Winder is at the bottom of the totem pole in terms of seniority (see http://www.supremecourt.org.bs/facili...">http://www.supremecourt.org.bs/facili...). He was appointed an Acting Justice in July 2014 and prior to that was a partner of Brave Davis in Davis & Co. Other background info available on the internet about Justice Winder is as follows: "Ian 'Ricardo' Winder was born on the Island of New Providence, Bahamas. He was educated at Saint Johns College, The College of the Bahamas in Nassau and the University of the West Indies Cave Hill Barbados. He was called to the Bahamas Bar on 12th May 1995. Mr. Winder concluded articled of clerkship with Mr. Bernard S.A. Turner Esq. in office of the Attorney General, Nassau. Mr. Winder is also a former Crown Counsel in the Attorney General Office and as acted as Deputy Registrar General of the Commonwealth of The Bahamas. Mr. Winder practices principally in the areas of civil litigation and has responsibility for the operations of the Freeport office. Mr. Winder practices in all Courts of the Commonwealth and has appeared in the Privy Council in London. Mr. Winder is the serving Chairman of the Road Traffic Authority Board and a member of the adjunct faculty of the College of the Bahamas where he lectures in Business Law. Mr. Winder also has memberships in the Bahamas Bar Association, The International Bar Association and The Bahamas Chess Federation." Seems Christie and Maynard-Gibson found the right guy for the job. Can't wait to read his ruling and no doubt he will need considerable help (from you know who) in fitting that square peg into a round hole.
THE FATALLY FLAWED PETITION PUT BEFORE THE COURT BY UNCLEAN HANDS IS NOTHING BUT A DE FACTO ATTEMPT BY THE CORRUPT CHRISTIE-LED PLP GOVERNMENT TO NATIONALIZE BY EXPROPRIATION THE VERY SIGNIFICANT PRIVATE EQUITY INTEREST OF THE PROJECT'S PRINCIPAL DEVELOPER, VALUED AT HUNDREDS OF MILLIONS OF DOLLARS. IT IS BEYOND OBVIOUS THAT THE CORRUPT CHRISTIE-LED PLP GOVERNMENT IS ENTIRELY BEHOLDEN TO THEIR OWN SERIOUSLY CONFLICTED INTERESTS AND, BY EXTENSION, THE INTERESTS OF THE CHINESE GENERAL CONTRACTOR AND THE CHINESE LENDER. THE INTERESTS OF BAHAMIAN PEOPLE HAVE NO VOICE WHATSOEVER. The contemptuous boldness of the malicious actions wrongfully and very deliberately taken by Christie and Maynard-Gibson in this matter tells the whole world the very great extent to which they have allowed themselves to be illegally compromised by China's feeding of their despicable greed!
ThisIsOurs 8 years, 8 months ago
Normally in agreement but I reject that he will do anything other than rule on what is presented to him. He has a stellar reputation. There's just no easy choice in this case, both choices have serious ramifications
MonkeeDoo 8 years, 8 months ago
Well_Mudda_Take_Sic : It is indeed passing strange, as you point out, that Winder has been cherry picked by these two, for the result that they wanted and got, and continue to want. In effect the Judiciary of the Bahamas is as corrupt as the Government. When does a criminal or other civil litigant get to choose their judge. I mean this is really the frigging end. And the other point people are missing is that this seems very much to be a Christie-Maynard-Gibson war. The only two persons who seem to have benefited significantly from transactions with Baha Mar. If the PLP House Members have even an ounce of guts and realize what is going on then they should send Dame Pindling a note to say that they have chosen a new leader and it is ..... We don't need an election we just need a few honest people to do the right thing.
Wideawake 8 years, 8 months ago
For the reasons you mentioned, a lot more than the future of Baha Mar rests on Justice Winder's decision. This is a pivotal point in The Bahamas' history, where we could go "Forward, Upward, Onward Together" .... or we could start "circling the Drain of Chinafication", as we deal with more and more PLP government corruption!!!!
The_Oracle 8 years, 8 months ago
It will get worse before it gets better, remember most who "serve" in Government and The Courts got where they are by political hand picking, indicating compromise and favor. Competency went out the window with the British! Sure, a few were left but think back, didn't take long to flush them out did it?
ThisIsOurs 8 years, 8 months ago
Chrissy Love has a saying that she has no problem with nepotism as long as it puts a competent person in the position. (I don't know if I fully agree with that but...) Justice Winder is more than competent. He is extremely intelligent and well read on the law. Would I have liked to see a more senior justice given this case, yes I would have, but he's been appointed and he is no dummy. Actually, He's one of the industrious up and comers that I've been saying for years I'd like to see running the country. Very hard working and very intelligent and as far as I know HONEST
Well_mudda_take_sic 8 years, 8 months ago
You really should not be so quick to equate intelligence with common sense, experience or honesty. His first decision on the Baha Mar matter was a quick shot from the hips without much broader thought on its consequences; and just look at all the mess that has since flowed from that initial unjust ruling!
happyfly 8 years, 8 months ago
Any judge that rules in the favor of the Chinese contractor is ruling against Bahamian construction workers. The Chinese Construction company does not hire Bahamians, it brings in thousands of Chinese to do Bahamians jobs. Why is the PLP taking the side of a foreign construction company that contributes nothing to the Bahamian economy. Lets throw them out for not doing what they were contracted to do and bring in a contractor to finish the job that will hire Bahamian workers. This is finally an opportunity for the PLP to create some jobs
MonkeeDoo 8 years, 8 months ago
happyfly: Why is the PLP ...... Its called sweetness for the enablers .......... To others it might be called CORRUPTION !!!!!!!!!!!!!!!!!!!!!!
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