Lawyers arriving on Friday for Justice Ian Winder's ruling at the Supreme Court. Photo: Shawn Hanna/Tribune staff
BAHA MAR STATEMENT
“The ruling by the Supreme Court of The Bahamas - appointing a provisional liquidator with limited authority and scheduling the winding up petition two months from now - provides Baha Mar with further time to move forward with its efforts to resolve issues so that it can complete construction properly and open successfully as soon as possible.
“Today has been an important day for Baha Mar - one that gives us further confidence that we will succeed in our efforts. We are pleased that, in making its ruling, the Bahamian Supreme Court has made it quite clear that the present intention is to not have Baha Mar liquidated or its management replaced. In fact, the judge specifically wants to make sure that Baha Mar’s assets are preserved - which is a priority we all share.
“We are confident that Baha Mar will succeed and that the provisional liquidator will not only confirm that Baha Mar is not wasting assets but, that Baha Mar has designed the most expeditious path to move forward with the completion of the project, as Baha Mar has contended all along.
“With the distraction of this proceeding behind it, Baha Mar and its counterparties can focus on the tasks at hand, free form the uncertainty that the petition had caused.
“Baha Mar is 97% complete. The Chapter 11 process is underway. Baha Mar has developed a plan of reorganization under the Chapter 11 process. This plan is now before the US Court. The plan is the best alternative. It is designed to enable Baha Mar to have a sound financial structure and to put Baha Mar in a position from which it can move forward to be completed properly and open. The plan effectively addresses Baha Mar’s creditor obligations, including paying in full all valid claims of Bahamian creditors and the Government of The Bahamas.
“We expect the provisional liquidator to work alongside us for the best interests of Baha Mar and The Bahamas.”
By LAMECH JOHNSON
Tribune Staff Reporter
ljohnson@tribunemedia.net
JUSTICE Ian Winder said on Friday that his approval of the government's petition for the appointment of provisional liquidators for the stalled Baha Mar resort development was limited to preventing the depletion of the $3.5 billion resort's assets.
His approval of KRyS Global and AlixPartner Services UK came at the end of a full six-hour hearing which included the near 90 minutes it took him to read his written ruling into the record concerning the three days of proceedings last month.
The written ruling, he said, will not be available until Monday due to the need to make clarifications to the document.
Justice Winder adjourned the continuation of the proceedings (the winding up petition) to November 2 to allow the parties time to make the necessary plans to reach a solution and/or applications to himself or the Court of Appeal concerning his rulings in this matter.
Though he did not accept the government’s ground that the petition should be granted in the interest of the public, Justice Winder determined that government had made a sufficient case, in law, for the appointment of provisional liquidators as the development, “on the evidence” is “undoubtedly insolvent”.
The judge did note in his conclusion, however, that “it is extremely regrettable that the parties have not found a way to resolve this issue given what is at stake for all parties and the numerous opportunities afforded for a resolution.”
Justice Winder had approved Baha Mar’s strike out application concerning the government’s original petition filed on July 16 by the Attorney General and dubbed it to be “grossly irregular”, adding that it was not compliant with the Companies Liquidation Rules of the Bahamas.
The subsequent petitions filed on behalf of government entities including the Treasury and Bahamas Electricity Corporation were allowed, as the petitioners “at the very least show private interests in the development”.
However, Justice Winder determined that the Water and Sewerage Corporation and the National Insurance Board could not be counted as creditors as they were not listed under the Head of Agreements signed between the government and Baha Mar.
“The Gaming Board, too, is not a party to the Heads of Agreement,” the judge said. However, he noted that he would give the board 14 days to submit further evidence proving its standing as a creditor.
The government is seeking 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.
In a statement, Baha Mar said it was pleased that, in making its ruling, the Supreme Court had made "it clear that the present intention is to not have Baha Mar liquidated or its management replaced. In fact, the judge specifically wants to make sure that Baha Mar’s assets are preserved - which is a priority we all share".
The resort said that with “the distraction of this proceeding behind it, Baha Mar and it counter parties can focus on the tasks at hand, free form the uncertainty that the petition had caused.”
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 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.
Peter Knox, QC, and Loren Klein appeared for the government in these proceedings. James Corbett and Maurice Glinton, both QCs, represented Baha Mar.
Comments
truetruebahamian 8 years, 7 months ago
The chinese government butters no parsnips with us. ( Original settlers and descendants thereof) and neither does the plp - (the current political party governing) and together they are holding our country to ransom, and this will find an immediate and thorough backlash!
wave 8 years, 7 months ago
There is no hope for the Bahamas, you have just proven that your nation is once again for sale. Welcome to the new drug years!
Wideawake 8 years, 7 months ago
The ruling by Justice Winder cannot be seen as a defeat for Baha Mar, nor can it be seen as a victory for The Bahamas Government. In essence it has given Baha Mar a further two months to complete its business in Delaware and also, possibly, to obtain a judgement in its court action in the UK.
The provisional liquidators, who are impartial, while standing guard over Baha Mar's assets, will have plenty of time to familiarize themselves with all the complexities of the Baha Mar debacle.
Baha Mar will have a great opportunity to show the provisional liquidators exactly why their relationship with CCA is fatally damaged and they can also educate them regarding the wisdom of the New Baha Mar Plan.
The Bahamas government will present its case, or better still, get out of the way and allow the provisional liquidators to do their job.
CCA will make excuses for its shoddy workmanship and tardiness in meeting deadlines and CIMEXB will have a forum to air it's concerns regarding the possibility of suffering a financial loss.
The provisional liquidators, are hopefully much, much more than that. If their role is actually that of "impartial mediators", after sifting through all of the claims and counter claims, allegations and counter allegations, they could become the " Fair Broker" who passes just and equitable judgement on exactly how the "Baha Mar Gordian Knot" is to be severed.
Let us hope and pray that sometime before Nov. 4th, the "liquidators" are able to broker a fair and just agreement that is binding on all parties, and that would allow the stalled project to quickly get back on track.
TalRussell 8 years, 7 months ago
Comrades, cut out the long-winded trying explain this ruling cuz the only two operative words of the justice's ruling you needs focus your attention on is - Bah Mar is "“undoubtedly insolvent.”
Da case beyond a financial miracle from above, has now been defined.
Wideawake 8 years, 7 months ago
Actually, "undoubtedly insolvent" is no big deal!! Many businesses, especially during their development phases, suffer temporary insolvency. Many projects in The Bahamas stall, get additional funding and then surge forward to eventual success.
Many people who get paid on Friday, spend all, or most, of their wages over the weekend and find themselves to be "undoubtedly insolvent" on Monday morning!!
No big deal...they hang tough until payday and then they are solvent once again!
I, by the way, believe in financial miracles from above, but I don't think Sarkis needs a miracle to get Baha Mar back on track. He just needs the support and co-operation of government and $400 million in new financing.
TalRussell 8 years, 7 months ago
Comrade Wideawake, you do realize the honourable high court justice, did have the option to be gallant in describing Baha Mar's finances as being damaged but not enough it couldn't be turned around. Granted he didn't come right out to say, it was “fatally wounded."
If I was to read the justice, I'd say they been told to go hurry up and decide what Baha Mar is and what it is not.
I thinks some us done knows what the answer is.
Wideawake 8 years, 7 months ago
I agree that Baha Mar were told to "poop or get off the pot!"
TalRussell 8 years, 7 months ago
Comrade, if you have Izmarlin's home number do call him warn him not dare poop on that 'dock' cuz plans call for it be demolished for shipment to them nine school kids on island Rum Cay.
Tarzan 8 years, 7 months ago
Tal: Get a grip. You know absolutely nothing about this. Your windy comments simply expose your ignorance of the bankruptcy process and how a creditor in possession work out, bankruptcy differs from a Chapter 7, liquidation of a terminally insolvent bankrupt. Your efforts to support your idea of what the serving government wishes are misplaced. They have no clue either.
TalRussell 8 years, 7 months ago
Comrade Tarzan, you know you could be right but I do have enough financial experience under me belt to know that Baha Mar has no soul left in her and there are no judges in Bahamaland or the USA, that can order one be shipped to Cable Beach. Within days we shall all know the answer - the guessing game will soon meet its end.
banker 8 years, 7 months ago
http://thetribune.media.clients.ellin...">Says it all !! by banker
Publius 8 years, 7 months ago
@banker LOL!
GeorgiaBAHAMIANwannabe 8 years, 7 months ago
Thank you King Solomon
John 8 years, 7 months ago
Could someone please sponsor TalRussel some English classes. When one reads his posts they have to spend an hour trying to translate what he is saying to English, and even then its difficult to comprehend what he is trying to say.
MonkeeDoo 8 years, 7 months ago
The other commenters have been saying that "he" is a she and is just a PLP Internet Troll. I don't know what it is !
MonkeeDoo 8 years, 7 months ago
Anyone know who the Chinaman is in the photo above ? And why does Moree always look like he could use a laxative ?
Well_mudda_take_sic 8 years, 7 months ago
So we have a Bahamian judge who has told the whole world Baha Mar is undoubtedly insolvent and that its not just a case of liquidity problems requiring a Chapter 11 re-organization under the friendly bankruptcy laws of Delaware. Meanwhile the prospect of liquidation under the archaic insolvency laws of the Bahamas (requiring the sale of the debtor's assets to settle the claims of its creditors) looms large like an ominous billowing dark cloud over the project until the same 'conflicted' Bahamian judge completely pulls the rug out from under the entire development venture on November 4, 2015. Now tell me, who in their right mind would want to continue doing business with the developer of a project whose failed state has effectively been sealed by the Bahamian government through its newly unleashed nationalization by expropriation policy that steals from non-Chinese foreigners to give to the new Chinese masters disguised as friends in exchange for a whole lot of creaming off taking place in backroom deals involving a multitude of disgusting conflict of interest arrangements designed to reward the select few in our society? Phew!! Remember Bernadette Christie and Allyson Maynard-Gibson jiggling their aged flab with such glee in their yellow costumes at Carnival.......they are just too happy, in fact giddy, knowing how financially well off they and their immediate and extended families, political friends and business cronies will be thanks to their favoured positions in the eyes of our new Chinese masters. Our new Chinese masters will soon have all the political and economic power they need to crack the whip on the rest of us poor Bahamians and our children, great grandchildren, great great grandchildren and on and on who are destined to be enslaved for many, many decades to come, thanks to Christie! So long Emancipation Day....we now have the year of the monkey ruled by the new Chinese master! The corrupt Christie-led PLP government has every intention of giving to the Chinese Export-Import Bank whatever sovereign guarantee they desire because Christie has already compromised himself and sold all of us out to his new Chinese friends. All that remains for Christie to do is stand on the floor of the HOA and tell all of his D- and E educated subjects how he had no choice but to issue a sovereign guarantee and how good it will be for all Bahamians! What a schmuck we have as a PM!!
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