Derek Achong

Se­nior Re­porter

derek.achong@guardian.co.tt

For­mer Ur­ban De­vel­op­ment Cor­po­ra­tion of T&T (Ude­cott) ex­ec­u­tive chair­man Calder Hart will have to wait to learn the fate of his ap­peal against the dis­missal of his law­suit over prej­u­di­cial find­ings made against him by the Com­mis­sion of En­quiry in­to the Las Al­turas hous­ing project.

Ap­pel­late Judges Mark Mo­hammed, Pe­ter Ra­jku­mar, and Maria Wil­son re­served their de­ci­sion in Hart’s ap­peal af­ter hear­ing sub­mis­sions dur­ing a vir­tu­al hear­ing on Mon­day.

In the law­suit, Hart con­tend­ed that the com­mis­sion act­ed un­rea­son­ably and ir­ra­tional­ly when it made find­ings against him in its fi­nal re­port with­out giv­ing him an op­por­tu­ni­ty to re­spond.

In late Sep­tem­ber 2020, the ju­di­cial re­view case was dis­missed by Jus­tice David Har­ris be­fore it went to tri­al.

Jus­tice Har­ris ruled that Hart could not com­plain as he had been giv­en an op­por­tu­ni­ty to par­tic­i­pate but freely de­clined.

Pre­sent­ing sub­mis­sions on Hart’s be­half, his lawyer Dr Lloyd Bar­nett not­ed that al­though his client had been in­vit­ed to tes­ti­fy be­fore the com­mis­sion, he was un­able to do so as he did not have ac­cess to of­fi­cial Ude­cott cor­re­spon­dence, which he claimed could have been used to clear his name.

“The ap­pel­lant was man­ag­ing di­rec­tor in 2001 and the project be­gan in 2002. The en­quiry be­gan in 2016 and he was be­ing asked to pre­pare a wit­ness state­ment af­ter all those years,” Bar­nett said.

He al­so point­ed out that al­though the com­mis­sion told his client that his ev­i­dence would be use­ful in their en­quiry, it failed to in­form him of the po­ten­tial ad­verse find­ings against him.

Bar­nett al­so con­tend­ed that the com­mis­sion failed to ful­fil its terms of ref­er­ence as it failed to take in­to ac­count the doc­u­ments iden­ti­fied by Hart.

“The com­mis­sion failed to car­ry out its du­ties and this re­sult­ed in it com­ing to a de­ci­sion that was flawed and sus­pect,” Bar­nett said.

Re­spond­ing to the sub­mis­sions, King’s Coun­sel Richard Clay­ton, who rep­re­sent­ed com­mis­sion­ers Dr My­ron Wing-Sang Chin and An­tho­ny Far­rell, claimed that his clients were left with no choice based on Hart’s re­fusal to tes­ti­fy.

De­scrib­ing Hart as “dis­tinct­ly un­co­op­er­a­tive”, Clay­ton said: “It was the ap­pel­lant who has pro­voked this po­si­tion by re­fus­ing to give ev­i­dence.”

Clay­ton sug­gest­ed that it would have been dif­fi­cult to fa­cil­i­tate Hart af­ter the com­ple­tion of the ev­i­dence be­fore the en­quiry.

How­ev­er, that sug­ges­tion was ques­tioned by Jus­tice Ra­jku­mar.

“I do not think the hur­dle is as great as you think,” Jus­tice Ra­jku­mar said.

In his sub­mis­sions, Se­nior Coun­sel Rishi Dass, who led the le­gal team for the Of­fice of the At­tor­ney Gen­er­al, sided with Hart’s le­gal team as he con­tend­ed that Hart should have been no­ti­fied of the ad­verse find­ings and giv­en an op­por­tu­ni­ty to re­spond.

The com­mis­sion of en­quiry was set up to in­ves­ti­gate the con­struc­tion of the Las Al­turas Tow­ers at La­dy Young Gar­dens, Mor­vant.

For­mer prime min­is­ter Kam­la Per­sad-Bisses­sar ap­point­ed the com­mis­sion af­ter two mul­ti-sto­ry units of the hous­ing project be­gan falling apart af­ter con­struc­tion and were ear­marked for de­mo­li­tion.

In the com­mis­sion’s re­port, it stat­ed that while there were no grounds for crim­i­nal pro­ceed­ings to be brought against any­one, civ­il ac­tion could be tak­en against for­mer Hart, for­mer Hous­ing De­vel­op­ment Cor­po­ra­tion (HDC) man­ag­ing di­rec­tor and cur­rent Ude­cott Chair­man Noel Gar­cia, Ude­cott and the HDC for neg­li­gence in how the project was han­dled.

Re­tired Jus­tice of Ap­peal Mustapha Ibrahim, who chaired the com­mis­sion, was list­ed as a par­ty but passed away while the case was still pend­ing. The case was con­tin­ued against Wing-Sang Chin and Far­rell.

One week af­ter Hart’s case was dis­missed, Gar­cia’s sim­i­lar but slight­ly dif­fer­ent law­suit was up­held, al­beit by a dif­fer­ent judge.

In that case, High Court Judge Kevin Ram­cha­ran ruled that the com­mis­sion act­ed il­le­gal­ly, un­rea­son­ably and ir­ra­tional­ly by de­cid­ing and rec­om­mend­ing find­ings against Gar­cia in its fi­nal re­port on Au­gust 30, 2016.

Con­se­quent­ly, Jus­tice Ram­cha­ran de­clared that the find­ings against Gar­cia were null, void and of no ef­fect.

On April 19, Jus­tice Har­ris up­held the HDC’s breach of con­tract and neg­li­gence case against Chi­na Jiang­su In­ter­na­tion­al Cor­po­ra­tion (T&T) Lim­it­ed, the con­trac­tor that was hired for the project.

The com­pa­ny was or­dered to pay over $30 mil­lion in com­pen­sa­tion which rep­re­sents the wast­ed funds spent on the build­ing blocks ‘H’ and ‘I’ of the project in­clud­ing those as­so­ci­at­ed with in­ves­ti­gat­ing the struc­tur­al dam­age and de­mo­li­tion.