A court has ordered the Estate Management and Business Development Company (EMBD) to pay $82 million to Junior Sammy Contractors Ltd (JSL) for work done on the Caroni Savannah Residential Development project in 2015.
The mega contractor filed a claim for payment in December 2018. In one of her last decisions given before she was elevated to the Court of Appeal, Justice Mira Dean-Armorer granted JSL’s application for summary judgment.
Her decision was given orally and she provided reasons for her decision in March.
In the claim, JSL 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, JSL also alleged that EMBD admitted to owing $ 77,658,948.91.
In opposition to the claim, the EMBD filed three defences alleging that JSL 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 JSL’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.
In her reasons, and on the issue of the third-party assignment, Dean-Armorer said it was not absolute but was conditional on the factoring agreement between JSL and the bank, and gave the contractor the right and obligation to institute proceedings where required.
She also said the claim that EMBD had reason to believe the works were over-certified fell short of a plea of material fact and was bound by the engineer’s certificate, according to the contract clauses.
“By Clause 14.7 of the contract, the respondent is bound by the certificate of the engineer. It seems therefore that the only relevant document was the certificate of the engineer.
“When it is issued, the employer is bound by Clause 14.7 to pay,” she said, also pointing to the letter by EMBD which acknowledged the debt $77,658, 948.71.
“It was my view that this letter was a clear admission,” the judge said, adding that she was persuaded by JSL’s arguments that it was entitled to payment when the IPCs were certified by the engineer and that EMBD failed to initiate dispute resolution mechanisms under the contract.
The judge also said the defence by the EMBD that it was awaiting specific disclosure” was in reality not a defence, but a plea for time to ascertain whether there was a defence and if so to develop one.”
“One wondered what would be the value of any material which might “turn up” with specific disclosure. By the date of the application for specific disclosure, the first case management conference had long passed and the Defendant would encounter Part 20 problems, should they wish to amend,” she said.
She also said the EMBD had not established that the documents it asked for were within JSL’s control, suggesting that it was on a “fishing expedition, hoping for something to turn up” since those documents would have been sent by the contractor to either the EMBD or its engineer.
Junior Sammy was represented by attorneys Ramesh Lawrence Maharaj,SC, Jagdeo Singh, Kiel Taklalsingh, Karina Singh and Shanice Harewood while the EMBD was represented by Jonathan Acton Davis,QC, Colin Kangaloo and Danielle Inglewood.