By Elesha George
It remains to be seen how a legal undertaking which was breached by the government will be treated by the lawyers representing Half Moon Bay (HMB) Holdings.
The company’s lawyer has accused the government of contempt of court, after it placed 10 percent of its share in the West Indies Oil company (WIOC) up for public sale last Wednesday.
The sale triggered the threat of an injunction by the owner of Half Moon Bay – Natalia Querard – who is actively attempting to get an order from the court that would allow her to collect all the dividends that the government was getting from its shares in WIOC.
Querard’s property was compulsorily acquired by the government in 2007. The settlement cost the government nearly EC$50 million which it is still paying off.
Since the matter is ongoing in the court of appeal, an undertaking was given that no transfers, mortgage or other disposal of shares in the storage company would be performed until the case is determined by the Eastern Caribbean Court of Appeal.
Both the government’s legal representative Anthony Astaphan and Querard’s lawyer agreed to the terms in August 2020.
“The government said that that could not be done and so we’ve had legal arguments about it and so the matter is still before the court but we had agreed in the interim that, at least until the case is finished, that the government would not sell any of its shares.
“That undertaking has the same effect as an injunction,” remarked HMB’s attorney Kenny Kentish.
However, when Observer spoke with Prime Minister Gaston Browne, he said that was not his interpretation of the matter, even while noting that he was not present when the agreement was made.
He reasoned that it could have been a situation in which the information that was given was not clear and the court did not take into consideration that there was a pre-existing commitment to sell shares to the public.
According to Browne, “This is not contemptuous in any way because it existed prior to that commitment and whereas I accept that it was not expressly stated in the order – that clearly was omitted inadvertently – but everyone knows, the entire public, all Antiguans and Barbudans, all citizens and residents are fully aware of that pre-existing commitment.
“So, I’m confident that any reasonable judge will look at the facts, the public interest in this matter, and strike out any such claim of contempt,” he said.
He went on to say that the court does not have a legal jurisdiction to override a minister of finance on the prioritisation of any debt to any debtor and to determine where the payment will come from, especially during a global crisis.
“There is a separation of powers between the judiciary and the executive,” the prime minister said, adding that the judiciary must not trespass on the lines of authority of the government.
“I do not know ultimately when this case is heard that any judge has the authority to say that we should take out shares from West Indies Oil Company and transfer it to HMB to settle a debt. I am not aware that any judge has any such legal jurisdiction,” Browne added.
The government currently owes HMB US$18 million, after paying Querard US$8 million in March 2020 in default payment.
HMB wants the government to immediately stop the sale of shares or make an agreement with regards to the sale of those shares, stating that it will otherwise initiate contempt proceedings against the government.
HMB was a prime beachfront hotel property which was destroyed in September 1995 by Hurricane Luis.