A local advocacy group’s appeal of an order that it pay the government and a US developer $250,000 in security costs before a judicial review of the proposed construction of a marina was postponed yesterday.
The matter was delayed because the judge had just recently provided her reasons for the order.
Responsible Development for Abaco (RDA) is appealing Justice Petra Hanna-Weekes’ November 2017 order for it to pay The Abaco Club $150,000, and government respondents $100,000 ahead of its legal action against the proposed 44-slip private dock at Little Harbour.
And one of RDA’s grounds of appeal is that the judge failed to give any or sufficient reasons for her decision on whether the security costs should be payable in principle so that RDA and the Court of Appeal could determine the basis on which the decision was made.
Additionally, RDA asserts that the issue of whether it should be required to pay security costs at all was not addressed in Justice Hanna-Weekes’ ruling - only the quantum, or the amount of the security costs was addressed.
To that end, RDA also asserts that the judge also failed to give sufficient reasons for her decision on the quantum. RDA said while a certain portion of her ruling recited “various matters” she had taken into account, it was done with “so little particularity” that the “proper basis for her decision cannot be identified”.
However, on Monday, the day before the substantive appeal was due to be heard, Justice Hanna-Weekes delivered her reasons for making the November 22, 2017 decision, although apologising “profusely” for not providing her reasons in the specified timeline.
Firstly, she maintained that the current case is a “proper one” for granting the 12 respondents security for costs, based on the applicability of Order 23 r 1(1)(b), section 285 of the Companies Act (CA), the “relevant principles” laid down by the case law she reviewed, the evidence led and the submissions from both parties.
Concerning the issue of the amount to be paid as security costs, Justice Hanna-Weekes said having considered the nature of RDA’s case and the conduct of the case thus far, and given her 30 years plus experience in preparing, defending and opposing “numerous” bills of costs and hearing and determining “similar applications”, the appropriate award is a “global quantum” of $250,000.
Of that sum, the judge said $100,000 is for the government respondents and $150,000 is to go to the developer’s costs. Justice Hanna-Weekes further stated back in November 2017 that the security costs are to be paid by cash, bond, or letter of credit from a commercially licensed bank within the Bahamas within 30 days of her ruling.
According to court documents, RDA is opposing The Abaco Club’s plans to construct the 44-slip dock, along with a supplies shop, private restaurant, 6,000 square foot covered car park, generator, desalination plant and waste treatment facility.
The proposed development will measure 320 feet across the outside piers, 210 feet between the two parallel main piers, and will extend 270 feet into Little Harbour, with the intent for it to accommodate boats up to 60 feet.
However, RDA fears if the project goes ahead it will completely change the environment and character of Little Harbour, a 50-home community that runs entirely off solar power.
Besides its environmental concerns, RDA further claims that the government respondents decided not to carry out any, or any proper consultation before making decisions concerning the grants, permits and approvals required before the development can be constructed.
The group further claims that the government respondents have withheld information so as to deprive the group of its statutory rights and/or legitimate expectations to contribute to any consultation process.
RDA’s Vice-President David Pitcairn, in a sworn affidavit, alleged that RDA sent letters to all of the respondents on December 21, 2015 concerning the issue, and that a response to those letters was requested by January 2, 2016.
However, Mr Pitcairn claims not a “single reply has ever been received to any of those letters, not even the courtesy of an acknowledgement.”
The group also raised fears that the necessary permits for the proposed development would be granted in secret, thus allowing for work on the proposed development to begin and it in turn becoming a fait accompli, or something that has been decided before those affected hear about it, giving them no choice but to accept it.
The nine government respondents later sought an order pursuant to Section 85 of the Companies Act, Chapter 308, that RDA pay it security costs totaling $150,000, arguing that because RDA is a “limited liability company,” it would be unable to pay the government respondents if it loses the court case.
The 10th through 12th respondents, namely Abaco Club Investments LLC, Abaco Sporting Club Limited, and Winding Bay Development Ltd subsequently sought an order for RDA to pay security costs in the amount of $350,000, making similar assertions as the government respondents.
According to Justice Hanna-Weekes, Mr Smith’s main contention is that the timing of the application for security for costs has deprived RDA of the time needed to raise funds by gathering donations and selling merchandise to fund the court action, but not that it lacked the ability to raise funds at all.
“(RDA) must demonstrate that an order for security for costs will stifle its claim,” she said. “I am of the view that (RDA) has not demonstrated this to be the case”.
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