Overseas Property Bond Management Ltd Claimant v Antigua Commercial Bank Ltd Nathaniel "paddy" James Sagicor Capital Life Insurance Company Ltd Defendants [ECSC]
| Jurisdiction | Antigua and Barbuda |
| Judge | FLOYD, J. |
| Judgment Date | 27 January 2012 |
| Judgment citation (vLex) | [2012] ECSC J0127-1 |
| Court | High Court (Antigua) |
| Docket Number | CLAIM NO: ANUHCV2006/0552 |
| Date | 27 January 2012 |
EASTERN CARIBBEAN SUPREME COURT
HIGH COURT OF JUSTICE
CLAIM NO: ANUHCV2006/0552
David Dorsett for the Claimant
Tracy Benn-Roberts & Safiya Roberts for the First Defendant
Septimus A. Rhudd for the Third Defendant
This is an action wherein the claimant seeks a number of declarations. A Notice for Interim Remedy was filed on October 18, 2006. An order was made by The Hon. Justice Thomas on November 8, 2006 restraining the respondents (the first and second defendants) from selling properties of the applicant (claimant) at Jolly Harbour. A claim form was filed on November 9, 2006 seeking an order that the first and second defendants be restrained from selling specific properties at Jolly Harbour, that the charge in favour of timeshare owners prevails over the charge of the first defendant, that the first defendant is a trustee of the claimant regarding a contract of insurance issued by the third defendant on the life of Dirk Huber, deceased, that the claimant as a beneficiary of the first defendant had a legitimate expectation that the first defendant would seek to enforce its security with respect to a loan issued by the first defendant in the name of the claimant, that the first defendant by failing to enforce its security regarding the insurance policy issued on the life of Dirk Huber, deceased, has allowed the loan to escalate and exceed the amount of the sum, that the first defendant is in breach of its duties as a trustee of the claimant, that the third defendant pay the first defendant 1.2 million USD plus interest, special damages, general damages, interest and costs.
The Hon. Justice Thomas granted an order on December 4, 2006 discharging the injunction on the undertaking of the first defendant not to sell the listed property until further order of the court.
On January 29, 2007 the first defendant filed a defence and counter claim seeking sums outstanding plus interest or alternatively, striking out the claim with costs
An amended claim form was filed on February 6, 2007 adding the third defendant as Sagicor Capital Life Insurance Company Ltd., seeking a declaration that the loan granted to the claimant by the first defendant is not enforceable and exemplary damages.
A reply to the defence to the counter claim of the first defendant was filed on March 7, 2007 and a reply to the defence of the second defendant was filed on the same date. An amended reply to the defence of the second/third defendant was filed on March 8, 2007.
A defence dated February 27, 2007 from the third defendant was also filed.
The trial took place on February 7 and February 8, 2011 with written submissions to be filed by March 1, 2011.
A number of witnesses were called to testify and witness statements were filed.
Gloria Watt has been the managing director of the claimant since 2004. She has worked for the claimant since 1994. The claimant's business is selling timeshares and renting villas at Jolly Harbour, Antigua. On July 10, 2001, the first defendant approved a loan to Dirk Huber (now deceased). At the time, Mr. Huber was a director of the claimant company. Another company director at that time was Charles Watt, the late husband of Gloria Watt. Bridgette Niepp was the managing secretary of the claimant company at that time. She was also the mother of Dirk Huber. The loan was to purchase timeshare operations known as Jolly Harbour Ltd., a name Ms. Watt did not recognize. She believed the loan was to purchase timeshare operations known as Overseas Property Bond Management Ltd. (OPBM) at Jolly Harbour.
Ms. Watt stated that the claimant conducts timeshare operations at Jolly Harbour and the timeshare owners have a 99 year charge on the property by virtue of the Timesharing (Licensing and Control) Act. The company owns the property but it cannot sell without the consent of the timeshare owners. The first defendant secured the loan by placing a charge on the claimant's property (parcels of land) and insurance on the life of Dirk Huber, assigned to the first defendant.
Ms. Watt testified that the claimant never received the loan money. The money was never deposited into an account belonging to the claimant and the claimant did not benefit from the loan. She reasoned, therefore, that the claimant was not responsible for the loan repayment. She said this despite agreeing that the company directors of the claimant signed the charge document found at page 27 of the Trial Bundle and a loan agreement with the first defendant bank found at page 23. Those documents are signed by Dirk Huber and Charles Watt for the claimant and Gregory de Gannes for the first defendant. The charge document pledges land titles belonging to the claimant to secure a loan of money from the first defendant. The charge document appears to be confirmed in a corporate resolution found at page 37 of the Trial Bundle, executed by Mr. Huber and Mr. Watt on behalf of the claimant company.
Ms. Watt stated that the loan money was paid to Dirk Huber and not to the claimant. Mr. Huber was responsible for the loan repayment personally. Mr. Huber died on September 27, 2002. He had been with the claimant company since 1998. Ms. Watt became aware that Mr. Huber had a life insurance policy with the third defendant after he died. Although the claimant is not responsible for the loan, Ms. Watt submits that the claimant has the right to ask the third defendant insurance company to repay the bank upon the death of Mr. Huber. The loan money was not received by the claimant as shown by a disbursement statement found at page 58 of the Trial Bundle. The statement indicates a money transfer to West Indies Capital Co. Ltd. The document is from the first defendant bank but is signed by Mr. Huber and Mr. Watt as borrowers.
Ms. Watt stated that the loan was part of a "fraudulent, cunning and corrupt scheme" to purchase Simon MacAuley's shares in the claimant company. The plan had been created between Mr. Huber and Mr. MacAuley. She described Mr. Huber as "cunning". In her opinion, the claimant company could never have serviced the loan because it's property (land parcels) is subject to a charge by timeshare owners. While denying liability of the claimant to pay the loan, Ms. Watt noted that if the insurance company had paid out on the policy on Mr. Huber's life, the indebtedness of the claimant to the first defendant would have been extinguished or substantially reduced. Ms. Watt also asserted that the claimant had the right to ask the third defendant insurance company to pay the loan since the first defendant bank is asking the claimant to repay the loan.
Nekisha Pryce testified and gave a witness statement. She is the office administrator of the claimant and has been with the claimant since 1997. She stated that Dirk Huber was the financial controller and Simon MacAuley owned the claimant company. In October 2002 she found a number of documents in the desk of Dirk Huber. She passed the documents over to Gloria Watt, the president and managing director of the claimant company.
Dr. Fouad Naffouj testified and gave a witness statement. His statement indicated that Dirk Huber was his patient from February of 1999. However, his testimony revealed Dr. Naffouj knew Mr. Huber since 1997 or 1998 and likely began treating him as early as 1997. He performed a medical examination on Mr. Huber on or about May 10, 2001 for insurance purposes. At that time he had no evidence that Mr. Huber had HIV. Two or three HIV blood tests were conducted on Mr. Huber with negative results. Dr. Naffouj could not recall which laboratory conducted the tests but said the laboratories were in St. Martin and Antigua. His file would contain that information but he did not bring the file to court. Dr. Naffouj further indicated that he did not review his medical records before coming to court.
Dr. Naffouj completed a life insurance application for Mr. Huber in 2001 indicating HIV status as negative. Dr. Naffouj agreed that it would have been better if he had attached the HIV test results to his witness statement. Mr. Huber had a stroke 6 months before he died. Dr. Naffouj treated him then but not afterwards. He said that up until the stroke, Mr. Huber was HIV negative.
The death certificate for Mr. Huber found at page 69 of the Trial Bundle gave a cause of death of thrombosis, which is a clot. Blood clots can be caused by a number of things.
It was not uncommon for Mr. Huber to drop by Dr. Naffouj's office and request blood tests. HIV blood tests were done for the life insurance application of May 10, 2001 found at page 192 of the Trial Bundle. The application form at item 4 c indicates "no" for treatment of respiratory conditions such as bronchitis. However, a letter dated April 4, 2007 found at page 251 of the Trial Bundle signed by Dr. Naffouj indicates Mr. Huber was "treated many times for acute bronchitis, flu, UTI." When confronted with this, Dr. Naffouj stated "maybe I missed that" and "it could have slipped my mind". The life insurance application form was completed by Dr. Naffouj. He confirmed that he knew Mr. Huber had been treated for items like bronchitis yet he still wrote "no" on the form.
Dr. Naffouj agreed he was not careful when completing the form. He agreed that he could have missed and in fact did miss important information. He denied, however, being careless in completing the form. At one point during his testimony, Dr. Naffouj began to rise in the witness box, stating "I am not getting paid for this" and complained that he was not told he would be in court for 3 hours.
Dr. Naffouj indicated he did not provide blood...
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