By RASHAD ROLLE
Tribune Staff Reporter
SUPREME Court Justice Ian Winder yesterday dismissed a petition Sarkis Izmirlian’s Granite Ventures filed as part of its process to get the Supreme Court to require Baha Mar’s Deloitte & Touche receivership team to surrender control of a $192m legal claim the company has against China State Construction Engineering Corporation (CSCEC).
Meanwhile, Ed Rahming, a Supreme Court appointed provisional liquidator for Baha Mar, said the receiver managers in the case will “very shortly” update the public on matters relating to the completion of the resort and the selection of a buyer.
He did not delve into specifics or give a timeline for the announcement, however.
Granite Ventures had sought an order that would place “custody and control” of its legal action against CSCEC, the parent company of Baha Mar’s general contractor China Construction America (CCA), into the hands of either a Baha Mar creditors’ committee or the joint provisional liquidators.
The $192 million claim against CSCEC seeks to enforce its May 12, 2011 guarantee that CCA, its subsidiary, would perform all necessary obligations under the terms of its Baha Mar construction contract.
The action was filed in the UK High Court on June 30, 2015, one day after Baha Mar sought Chapter 11 bankruptcy protection in the United States.
In dismissing the petition, Justice Winder said Granite does not qualify as an interested person under the relevant law, Section 148 of the Companies Act.
He wrote: “In the context of this application it would be difficult to find that Granite was an interested person, having regard to…the nature of Granite’s application to sell off the secured asset for the benefit of all creditors both secured and unsecured; the absence of a nexus between Granite and the English claim; and Granite’s status as an unsecured creditor who is compelled to rely on the JPL’s as the holder of the equity of redemption in the English claim, which is in the possession and control of the JRM’s (joint receiver managers).”
Justice Winder scheduled a hearing for next month after Granite asked for leave to appeal the ruling in the case, a move that was opposed by counsel for the joint receiver managers.
Nonetheless, Justice Winder said he “was minded” to grant the leave.
In a statement released after the ruling, Granite Ventures said it is disappointed with Justice Winder’s ruling.
“We are disappointed in this ruling because it denies the unsecured creditors of Baha Mar the opportunity to possibly realise monies they are owed,” the statement said. “The claims made by Baha Mar against CCA and its parent CSCEC for non-performance are valid as various documents, now public, about CCA cutting corners, missing its own schedules, requesting more workers from CSCEC, have revealed. “Furthermore, it speaks volumes about CEXIM and its relationship to CCA/CSCEC that it objected to the Granite motion. It is disgraceful that unsecured creditors have been shoehorned into the winding up/liquidation legal process here in the Bahamas in which their interests have been marginalised. The non-performance of the defendant parties in the litigation is the very reason the Baha Mar became a tragedy for so many in the Bahamas. Granite intends to appeal the ruling.”