Namalco Construction Services Ltd v Estate Management & Business Development Company Ltd

• Jurisdiction: Trinidad & Tobago
• Judge: Mr. Justice R. Rahim
• Judgment Date: 26 April 2022
• Neutral Citation: TT 2022 HC 087
• Docket Number: Claim No.: CV2016-01522
• Court: High Court (Trinidad and Tobago)

Between

Namalco Construction Services Limited

Claimant

and

Estate Management & Business Development Company Limited

Defendant

(By Original Action)

And Between

Estate Management & Business Development Company Limited

Ancillary Claimant

and

Andrew Walker

First Ancillary Defendant

and

Atlantic Project Consultants Limited

Second Ancillary Defendant

and

BBFL Civil Limited

Third Ancillary Defendant

and

Lee Young and Partners (A Partnership and/or Firm registered under the laws of Trinidad and Tobago and issued pursuant to Section 12 of the Partnership Act Chapter 81:02 and in accordance with Part 22.1 of the Civil Proceedings Rules 1988, as amended)

Fourth Ancillary Defendant

(By Ancillary Claim)

Before

the Honourable Mr. Justice R. Rahim

Claim No.: CV2016-01522

IN THE HIGH COURT OF JUSTICE

Appearances:

Claimant: Mr. A. Fitzpatrick SC, Mr. S. Sharma and Mr. R. Kawalsingh instructed by Mr. J. Mohammed.

Defendant/Ancillary Claimant: Mr. J. A. Davis QC, Mr. G. Hayman QC and Mr. C. Kangaloo instructed by Ms. D. Nieves-Inglefield

First Ancillary Defendant: Ms. J. Lutchmedial.

Second Ancillary Defendant: Mr. D. Mendes SC, Mr. D. Maharaj and Mr. C. Hackett instructed by Ms. K. Bharat.

Third Ancillary Defendant: absent and unrepresented.

Fourth Ancillary Defendant: Mr. A. Singh.

TABLE OF CONTENTS

Introduction	9
Overview	9

SECTION ONE

Disposition of the Claim and Counterclaim	15
The Claim and Counterclaim	17
Issues	18
The Claim	21
Issue 1 — Whether the court has the jurisdiction to hear challenges to the validity and accuracy of the IPCs	21
The FIDIC terms of contract	21
Preliminary issue: Should Namalco be permitted to argue that the court lacks jurisdiction to hear challenges to the validity and accuracy of the IPCs	27
The main issue on Jurisdiction	27
Findings	35
Are the requirements set out in the DRP prerequisites to challenging the IPCs in court or put another way, does the fact that the DRP process was not engaged by a party prohibit that party from challenging the IPC in court	38
Cedar Hill and Petit Morne	41
Roopsingh Road and Picton Contracts	42
Issue 2 — What was the effect of Clause 2.5 of the Conditions of Contract on EMBD's defence and counterclaim	43
All Contracts	43
Finding	49
Abatement and the alleged extinguishment of Namalco's claim	50
Issue 3 — Whether the provision of supporting documents was a condition precedent to the payment of an IPC	51
Findings	65
Issue 4 — Whether the decision of the Dispute Adjudication Board on the Picton Contract has become conclusive	74
Findings	76
Issue 5 — Whether the supplementary agreements are valid	78
The Roopsingh Road Project	78
he Petit Morne Project	79
Whether Mr. Singh procured or caused EMBD to enter into the Supplementary Agreements in breach of his statutory fiduciary duties and not in best interests of EMBD/preferring interests of Namalco and/or without actual authority to do so	80
Whether Namalco knew that Mr. Singh acted not in the best interests of EMBD/preferring the interests of Namalco, and was thereby acting in breach of his Statutory Fiduciary Duties, and/or without actual authority	82
Whether it can be inferred in all the circumstances that Namalco and Mr. Singh conspired together to procure the award of the Supplementary Agreements with an intention to injure or cause financial loss to EMBD by the use of unlawful means (namely Mr. Singh's breaches of fiduciary duties procured by Namalco)	83
Whether EMBD's purported ratification of the Supplementary Agreements is of no effect, by reason of EMBD not knowing (i) that the Supplementary Agreements had been entered into in breach of Mr. Singh's fiduciary duties and/or without authority, and (ii) that Namalco knew this	83
Whether EMBD has established on the evidence that Singh breached any of his duties or non-fiduciary duties	85
Whether Namalco's Representatives were, in any event, aware of Singh's alleged breaches of his duties owed to EMBD	86
Whether Singh had Apparent or Ostensible Authority to enter into the Supplementary Agreements on behalf of EMBD	88
Finding	89
Ostensible authority	91
The Indoor Management Rule/Rule in Turquand	97
Did Namalco have knowledge of the fact that Singh possessed no actual authority to enter into the Supplementary Agreements for a sum above $1M	108
Should Namalco have been put on inquiry that Singh had no such authority	109
Is the subsequent ratification by the Board valid and if so what is the effect on the validity of the supplementary contracts	110
Breach of fiduciary duty	115
Conspiracy	117
The pleading point	119
The evidence of conspiracy	119
Discussion	123
Agreement or combination between Namalco and EMBD and Others	127
An intention to injure the party who alleged the conspiracy	131
Unlawful acts carried out pursuant to the agreement and knowledge of unlawfulness	132
Loss to the injured party as a consequence of the acts	132
Issue 6 — What is the value of the works executed by Namalco	133
The Picton project	133
The other projects	134
Defective Work: The Counterclaim	134
Barrie Jones	141
Report of Ioannis Barmpopoulos	156
The Fugro Report	157
Jonathan Palmer	165
Namalco's Expert on Value/Rates	170
Phillip Duggan	170
EMBD's Experts	173
Sarah Pattinson	173
Mark Hood	175
Discussion and findings	175
Projects	176
Roopsingh Road Value	176
Clearing and grubbing or Stripping	177
Preliminary Items for Office and Security	177
Overheads	178
Equipment	178
Clearing and grubbing	181
Imported sand fill	182
Individual claims for excavation and imported sand fill	182
Recovery of profit — omission of detention ponds	183
Fill and re-grading	183
Variations	183
Petit Morne Value	186
Cedar Hill Value	186
Insurance and performance security	186
Other Provisional sums	188
Overheads resulting from the suspension of works	190
Equipment	191
Landslip	192
Clearing and grubbing: IPC1	193
Embankment from borrow	194
The Systemically Defective Nature of Namalco's Works — Defective Work — Bill Section C	196
Interest	197

SECTION TWO

The Ancillary Claim	198
Disposition	199
Costs	201
Picton Project	201
Cedar Hill Project	202
Contractual obligations/breaches under common law duty	209
Monthly progress reports	212
Provisional sums	221
Embankment from borrow	222
Roopsingh Road Contract	225
Provisional sums	226
Equipment	226
Recovery of profit — omission of detention ponds	231
Fill and re-grading	234
Variations	235
Petit Morne Contract	236
The Petit Morne Project calculations	236
Sub-standard and defective works	238
Overheads	238
Equipment	240
Wrongful variation to excavation widths	241
Recovery of profit — omission of detention ponds	242
Assessment of Interest	242
AASHTO 180/191	242
The Counterclaim of APCL to the Ancillary Claim	243

INTRODUCTION

1 To say that this case has been somewhat of a challenge would be to underestimate the sheer volume of issues and sub-issues which have been raised. Contrary to the assertion of the Attorneys at Law for the Claimant that it was really a simple matter, its complexity has literally consumed a disproportionate amount of the court's time and resources despite the efforts of the court to minimise that occurrence. In that regard, the court has also intentionally refrained from setting out all of the evidence; as so to do would be to detract from what the court hopes the reader would find to be more interesting and comprehensible than burdensome. That is not to say that the court has not considered all of the evidence that was presented before it as it has. The court has, however, tried to keep the decision within the limits of the reasonable.

2 The nature of the case has presented considerable overlap between the Claim and the Ancillary Claim both in terms of facts and law. To that end, where an issue may not have been dealt with as fully as the court would have liked to treat with it in one area, it has more likely than not been dealt with in the other area. Additionally, having regard to the myriad of findings the court has attempted to make appropriate orders for relief as best suits the case. As with all judgments the longer it lives with the writer the more he wishes he could add to his writing but there comes a time when it must end and the judgment delivered.

3 The court wishes to add that rarely does a court mention the word “politics” in a judgment and for very good reasons, the most important of which is the preservation of the independence of the Judiciary. However, it will not escape the reader that these claims and those similar to them have been the subject of much speculation on all sides of the political fence if one is to accept that which is printed in the newspaper. The courts have never been and ought never to be involved in the business of politics so that the findings made herein are devoid of any such consideration for the absolute avoidance of doubt. It is necessary to remind our people of this steadfast principle from time to time in order to maintain the confidence reposed in the courts throughout our twin island Republic.

OVERVIEW

4 The Claimant (“Namalco”) and the Defendant (“EMBD”, a state enterprise) entered into contracts for six (6) construction projects at Mahaica, Brickfield, Cedar Hill, Roopsingh Road, Petit Morne and Picton Monkey Town under which Namalco was to perform infrastructural...