$1.3b lawsuit trial starts

Local mega-contractor NAMALCO Construction Services Ltd’s multi-million lawsuit for $1.2 billion in unpaid bills has started in the Port of Spain High Court.

The case is being heard by Justice Ricky Rahim and yesterday, NAMALCO’s lead attorney Alvin Fitzpatrick, SC, presented his opening statement setting out his client’s contentions as well as its response to EMBD’s defence and counter-claim. Before Rahim is NAMALCO’s claim for payment, while there is a counter-claim by the EMBD, which is defending its decision not to pay out the interim certificates.

In the lawsuit, the company which is based at the Labidco Industrial Estate in La Brea, is claiming that the damages being sought represent unpaid fees for contracts performed for the EMBD. The company contends it was not paid despite completing projects and having them approved by an independent engineering company, as stipulated in its contracts with EMBD.

In its defence, the EMBD is contending that the company’s invoices were inflated and fees have to be reduced to take into account deficiencies in the quality of the work. The company also alleged a “conspiracy” in the award of the contracts and intends to argue that the contracts were not authorised by EMBD’s board, but by the CEO at the time, who is alleged to have breached his fiduciary duties. EMBD has contended that NAMALCO was aware of this.

The EMBD is mandated to manage and develop agricultural land held by the state across TT. But Fitzpatrick said NAMALCO is denying EMBD’s reasons for non-payment. He said the EMBD failed to act reasonably and there was no basis to suggest NAMALCO knew of any breach of fiduciary duties on the part of the then EMBD chief executive.

Fitzpatrick said EMBD was obligated to pay under the terms and conditions of the contract and if there were any concerns or challenges, a dispute-resolution clause in the contract should have been invoked.

This was not done and this fact, Fitzpatrick said, prevents the EMBD from now coming to court with its counter-claim.

“The court has no jurisdiction until that step has been exhausted,” he said in his opening statement, adding that the EMBD’s failure to follow the dispute-resolution process was “fatal” to its case.

He also said if the engineers – the EMBD is claiming the interim payment certificates were overinflated – were negligent, NAMALCO had nothing to do with that.

Also appearing for NAMALCO are attorneys Roger Kawalsingh, Shiv Sharma and Javid Mohammed. The EMBD is represented by two British Queen’s Counsel, Jonathan Acton Davis and George Hayman. Also representing the company are attorneys Colin Kangaloo and Danielle Inglefield.

Representing Atlantic Project Consultants Ltd as an ancillary defendant are Douglas Mendes, SC, Devesh Mararaj and Kandace Bharath-Nahous. Attorneys Anand Singh and Jayanti Lutchmedial represent the other ancillary defendants in the case.

Testifying yesterday for NAMALCO was the head of its construction department, Lenny Sookram. Originally, the court had set aside four weeks for the trial.

NAMALCO said it entered into contracts for six construction projects at Mahaica, Brickfield, Cedar Hill, Roopsingh Road, Petite Morne and Picton, Monkey Town to do infrastructural work.