THE COURT of Appeal has dismissed the appeal of the Estate Management and Business Development Company (EMBD) which had been ordered to pay $82 million to Junior Sammy Contractors Ltd (JSCL) for work done on the Caroni Savannah residential development project in 2015.
In 2020, then High Court judge Mira Dean-Armorer granted JSCL's application for summary judgment. On Wednesday, the Appeal Court dismissed all EMBD's complaints.
In the claim, JSCL said it was successful in its tender for the project and a written contract was executed on February 4, 2015, and completed its work. Of the 13 interim payment certificates (IPCs) certified by the project's engineer, only six were paid. The contractor filed the lawsuit to recover the $82,804,219.19 certified in the seven remaining IPCs.
In its lawsuit, JSCL maintained the EMBD admitted to owing $ 77,658,948.91.
In opposition to the claim, the EMBD filed three defences alleging that JSCL assigned all their receivables under the contract to ANSA Merchant Bank, and it was only the third party that had the right to institute proceedings.
It also argued that the IPCs did not finally determine JSCL's entitlement to payment, and if they were not correct they could be re-opened. The EMBD also asked for specific disclosure of documents since it had not been able to conclude its analysis of the IPCs since it had reason to believe that the works were over-certified.
The High Court refused the application for disclosure. In her ruling, Dean-Armorer held the engineer's certificates entitled JSCL to the payments; found that the EMBD notified JSCL of its complaints three years after the engineer certified the IPCs and after the contractor filed its case to recover the money owed to it and had acknowledged the debt owed. She also held that EMBD failed to engage the dispute resolution mechanism under the contract.
The EMBD appealed contending the judge was wrong in law on eight issues.
In dismissing the EMBD's appeal, Chief Justice Ivor Archie and Justices of Appeal Charmaine Pemberton and Ronnie Mohammed ordered the company to pay JSCL the costs of the appeals and two-thirds of the costs of the applications made in the High Court.
Boodoosingh, who wrote the decision, said the judge was correct to decline the EMBD's application for disclosure to determine if it had a defence on any issue raised by JSC as it suggested a 'fishing expedition' given the wide berth of documents it was asking for.
'The application for disclosure could not legitimately aid EMBD to develop its pleaded case. There is no reason in the circumstances to disturb the judge's order on this matter,' the Appeal Court held.
The judges also held that the EMBD could not come to court and say JSCL was not entitled to payment without saying why.
'Facts which can show they are not entitled to payment must be pleaded…EMBD needed to go further in its pleaded case to allege facts to establish that JSCL was not entitled to the payment…
