TIME COULD BE ON HART'S SIDE
By ANDRE BAGOO Sunday, November 25 2012
THE FIRST and foremost argument made by former Udecott executive chairman, Calder Hart, in defence of a million-dollar lawsuit brought against him by the State, is that it is now too late for the State to sue him because more than four years have passed since the matters alleged against him occurred and a statute of limitation applies.
In the first paragraph of his 28- page defence to a lawsuit brought against him by Udecott, Hart makes it clear he will invoke Section 3(1) of the Limitation of Certain Actions Act of 1997 – passed under the first UNC administration – which bars lawsuits beyond four years for certain breaches.
“The defendant will contend that these actions were brought after the expiry of four (4) years from the date on which the causes of action accrued and are, accordingly, barred,” one of Hart’s attorneys, Annabelle Sooklal, deposes in a 28-page statement in defence filed with the High Court on November 12.
The defence has been obtained by Sunday Newsday.
Section 3(1) of the Act stipulates that: “The following actions shall not be brought after the expiry of four years from the date on which the cause of action accrued, that is to say: (a) actions founded on contract, on quasi-contract or in tort” and “(c) actions to recover any sum recoverable by virtue of any enactment.” Hart is being sued for alleged breaches under the Companies Act.
He stands accused of mismanagement of Udecott, namely breach of company law duties, breach of fiduciary duties and the tort of negligence.
The allegations relate to his management of specific Udecott mega-projects under the administration of former PNM Prime Minister Patrick Manning.
If the court agrees with Hart’s submission on the statute of limitations, it will be irrelevant whether or not he is found, as a fact, to have breached any rules, since too much time has already passed. For instance, the $368 million contract for the Ministry of Legal Affairs (MLA) project, dated back to 2006, or six years ago.
The $1.3 billion Tarouba sporting complex project also dates back to 2006, and was meant for use in the 2007 ICC Cricket World Cup.
The allegations against Hart relate to tendering processes and payments around these dates.
The only exception to the Section 3(1) limitation rule is where fraud is involved or where the wrong doing was concealed or could not be discovered.
Hart argues that Udecott complied with all its reporting requirements to all the relevant PNM line ministers and that the fraud/concealment exception (Section 14(2) of the Act) does not apply.
“The defendant makes no admission as to the claimant’s contention as to its ability to avail itself of Section 14(2) of the Limitation of Certain Actions Act and contends that same is not available to the claimant and/or applicable in the present circumstances,” the lawyer argues.
“The defendant denies that he committed any breach of duty as alleged or at all and avers that at all material times, the minutes of the board meetings of (Udecott) were sent to the Minister of Finance (either directly or through the Ministry of Finance) and the line ministry of the claimant,” the attorneys state.
“Additionally, the claimant provided reports to various ministries, including its client ministries (eg the Ministry of Sport for the Brian Lara Cricket Academy (at Tarouba)) and the Ministry of Finance, throughout the life of the various projects that it was involved in, in order to, inter alia, obtain funding and/or the release of funds for the various projects and to provide updates on the projects, including issues that may have been affecting them.” Hart’s attorneys argue that no case is made out against him in the million-dollar lawsuit and calls for the case to be thrown out.
“The defendant will further contend that the statement of case discloses no ground for the bringing of the claims and/or discloses no cause of action against him, and accordingly should be struck out in its entirety pursuant to part 26.2 of the Civil Procedure Rules 1998 and/ or the court’s inherent jurisdiction,” Sooklal, who was authorised by Hart to depose the facts in his defence, states. Hart’s lawyers also argue he did not have a role to play in the day to day administration of payments in relation to the Tarouba project and further argued all his actions came in context of board decisions.
“He was not involved, nor was he responsible for the day to day matters on the various projects, including the Brian Lara Cricket Academy,” the lawyers say.
Hart also denies any wrongdoing in relation to the Ministry of Legal Affairs tower project and states he was not aware the company which first got the contract had ties to his wife, Sherrine Lee. He said he had never met his in-laws who were directors of CH Development (a company which later became Sunway Construction (Caribbean) Limited).
“Prior to his marriage to Ms Sherrine Lee in 2000 he had never met her relatives, who lived in Malaysia, and the only member of her family that attended her wedding was her sister,” the defence states.
“Furthermore, subsequent to his marriage to Ms Lee, the defendant did not have any contact or close relationship with her family who lived in Malaysia, since they were not fluent in English and he did not speak Malay or Chinese. Also, in any discussions with his wife as it related to her family, her family members were referred to by their Western names and not their Malaysian/Chinese names, as is the custom and/or practice in the east and at all material times, his wife’s brother (Lee Hup Ming) and brother-in-law (Ng Chin Poh) were always referred to as Allan and David.” “The defendant was not aware that any members of his wife’s family, and in particular that her brother and brother-in-law, as alleged, were directors of CH Development,” the defence states. “Since the defendant was not aware that any member of his wife’s family and in particular her alleged brother and brother-in-law were directors of CH Development, he had no need to make any declaration to the board of directors of any conflict as it related to the alleged involvement of family members.
“When in May 2008, allegations were made in Parliament of the alleged relationship between his wife and Lee Hup Ming and/ Ng Chin Poh, the defendant was not aware of who these individuals were for the reasons stated above, and when he made enquiries with respect to same he was not made aware of any relation between his wife and these individuals.” Of the use of his personal fax number to send correspondence to Udecott in relation to the contract, the defence states, “The defendant was unaware that his telephone number and personal fax at home were being used by anyone.” The Uff Report into the construction sector found the Tarouba project to be “scandalous” in its mismanagement.
The Udecott board was also found to have failed to protect the public purse in relation to the MLA project.
LONG DELAY AFTER
ALLEGATIONS RAISED
The question of the statute of limitations
in rthe Udecott lawsuit is the latest
twist in a saga which began in May
2008 when allegations against Hart
were first made in Parliament.
Former Tabaquite MP, Ramesh
Lawrence Maharaj, alleged on May 23,
2008, that Hart’s in-laws were tied to
the $368 million MLA contract.
As if by clockwork, the Udecott issue
was kept alive when, a month later,
Diego Martin West MP Keith Rowley
was fired by Manning. Rowley said he
was fired over the Udecott issue. Yet,
for two more years, Manning and his
administration would defend and praise
Hart 45 times, as the clock ticked.
Hart finally resigned in March 2010, a
few weeks before Manning dissolved
Parliament, and four years after the
contracts at the heart of the allegations.
LIMITATION OF
CERTAIN ACTIONS ACT
3. (1) The following actions shall not be
brought after the expiry of four years
from the date on which the cause of
action accrued, that is to say: (a)
actions founded on contract (other
than a contract made by deed) on
quasi-contract or in tort; (b) actions to
enforce the award of an arbitrator
given under an arbitration agreement
(other than an agreement made by
deed); or (c) actions to recover any
sum recoverable by virtue of any
enactment.
14. (1) Subject to subsection (3),
where in the case of any action for
which a period of limitation is prescribed
by this Act, either— (a) the
action is based upon the fraud of the
defendant; (b) any fact relevant to the
plaintiff’s right of action was deliberately
concealed from him by the defendant;
or (c) the action is for relief from
the consequences of a mistake, the
period of limitation shall not begin to
run until the plaintiff has discovered the
fraud, concealment or mistake (as the
case may be) or could with reasonable
diligence have discovered it.
