For­mer In­de­pen­dent Sen­a­tor and a for­mer vice pres­i­dent for Ni­Quan En­er­gy David Small, through his at­tor­ney Anand Ram­lo­gan, has filed a pe­ti­tion to have the com­pa­ny wound up.

It comes five months af­ter Small was award­ed a $20,647,017 judg­ment by the courts for breach of con­tract by Ni­Quan, for monies owed to him dur­ing his em­ploy­ment.

In his pe­ti­tion, dat­ed Feb­ru­ary 1, Small said he has not re­ceived any of the mon­ey owed to him through the judg­ment.

In ad­di­tion, he wrote to all the fi­nan­cial in­sti­tu­tions that Ni­Quan does busi­ness with—Re­pub­lic Bank Lim­it­ed, Sco­tia­bank Trinidad and To­ba­go Lim­it­ed, First Cit­i­zens Bank Lim­it­ed, RBC Roy­al Bank (Trinidad & To­ba­go) Lim­it­ed, PECU Cred­it Union Co­op­er­a­tive So­ci­ety, JMMB Group Trinidad and To­ba­go, First­line Se­cu­ri­ties Lim­it­ed and the Cen­tral Fi­nance Fa­cil­i­ty Co­op­er­a­tive So­ci­ety—with no­tice of the judg­ment and his in­ten­tion to pe­ti­tion to wind up the com­pa­ny.

“Un­for­tu­nate­ly, there has been no re­sponse to these let­ters,” the pe­ti­tion said.

How­ev­er, since the mat­ter was list­ed to be heard, lawyers from sev­er­al fi­nan­cial in­sti­tu­tions and in­di­vid­ual in­vestors have sought to in­ter­vene or be­come a par­ty to the mat­ter.

Guardian Me­dia un­der­stands that last week, lawyers rep­re­sent­ing Re­pub­lic Bank wrote to the court seek­ing an ad­journ­ment on the mat­ter.

Re­pub­lic Bank is the col­lat­er­al agent un­der a Short-Term Note In­stru­ment (“STNI”) is­sued by Ni­Quan to about 20 note­hold­ers from var­i­ous coun­tries.

Guardian Me­dia was told that the STNI is val­ued at US$175 mil­lion (about TT$1.1 bil­lion).

Ni­Quan’s debt is ac­tu­al­ly clos­er to US$400 mil­lion, with sig­nif­i­cant ex­po­sure by Massy En­er­gy.

Last month, Patrick El­lis, group CFO of JMMB Group Ltd, re­vealed the full ex­tent of the com­pa­ny’s ex­po­sure to Ni­Quan, when he de­liv­ered the com­pa­ny’s unau­dit­ed fi­nan­cial re­sults for the nine months end­ed De­cem­ber 31, 2023, at an in­vestor brief­ing.

“In terms of our ex­po­sure to Ni­Quan, our prin­ci­pal debt that we have is ap­prox­i­mate­ly $65 mil­lion, just prin­ci­pal. The ex­po­sure it­self, if you look at the to­tal ex­po­sure, it is about $175 to $200 mil­lion. The last val­u­a­tion that we had in­ter­nal­ly was about $400 mil­lion, which was the last one that was done. So if you look at a debt-to-val­ue ex­po­sure, it is less than 50 per cent in terms of the over­all debt,” said El­lis.

“And I know the strat­e­gy that is be­ing pur­sued is one of op­er­a­tion, which it has been proven, the plant has pro­duced. So, we are very con­fi­dent in terms of the out­come and look­ing for­ward to its con­clu­sion.”

On No­vem­ber 7, 2023, Ni­Quan’s fa­cil­i­ty agent, Re­pub­lic Bank, and oth­er note­hold­ers passed a res­o­lu­tion to ap­point a steer­ing com­mit­tee among note­hold­ers to es­tab­lish a plan for the now de­funct plant mov­ing for­ward.

Guardian Me­dia un­der­stands RBL’s ex­po­sure to Ni­Quan is about US$22 mil­lion.

The plant was used as col­lat­er­al as the com­pa­ny sought to raise mon­ey over the years to make it op­er­a­tional.

To this end, the steer­ing com­mit­tee has en­gaged Price­wa­ter­house­C­oop­ers to de­vel­op a plan to re­ha­bil­i­tate the com­pa­ny with a view to mak­ing op­er­a­tions to set­tle its oblig­a­tions to its cred­i­tor groups.

That time­line is be­tween eight to 12 months.

Re­pub­lic Bank has ar­gued that an or­der to wind up the com­pa­ny could jeop­ar­dise the ini­tia­tive to the detri­ment of se­cured and un­se­cured cred­i­tors.

In mak­ing its case to the court, Re­pub­lic Bank ar­gued that should the com­pa­ny be­come op­er­a­tional, Small will be paid.

Small’s chal­lenges

Small’s judg­ment came amid fi­nan­cial prob­lems plagu­ing the com­pa­ny. It’s debt bal­looned and it has gone of­fline be­cause it has no per­mis­sion to op­er­ate by the Min­istry of En­er­gy and En­er­gy In­dus­tries (MEEI) and no nat­ur­al gas con­tract for the plant to con­tin­ue with the project.

Small was Ni­Quan’s vice pres­i­dent of Glob­al En­er­gy Ser­vices since 2015 and left in No­vem­ber 2021.

Ac­cord­ing to court doc­u­ments, Small ne­go­ti­at­ed a mu­tu­al sep­a­ra­tion agree­ment with founder Ains­ley Gill for the sums and bonus owed dur­ing his tenure in Oc­to­ber 2021. How­ev­er, no pay­ments were made de­spite the spe­cif­ic dates agreed to and Small sub­se­quent­ly took le­gal ac­tion.

In his rul­ing, Jus­tice West­min James said Gill’s con­duct “must be pun­ished and a pro­por­tion­ate award of ag­gra­vat­ed dam­ages must be made so as to re­flect the blame­wor­thi­ness of the de­fen­dant’s con­duct and to sig­nal that it will not be tol­er­at­ed or con­doned by the court”.

He not­ed that in the agree­ment reached be­tween Small and Gill, Small gave up his right to bring a claim against Gill for sum­ma­ry dis­missal in lieu of a ne­go­ti­at­ed set­tle­ment.

Hav­ing for­gone his rights, James de­scribed Gill’s ac­tions as “rep­re­hen­si­ble, as the con­duct was cal­cu­lat­ed to take ad­van­tage of every chance to de­lay pay­ing the claimant or not to pay him any­thing at all”.

Ni­Quan re­mains

Last month, Ni­Quan dis­con­tin­ued its le­gal pro­ceed­ings against the State.

Ni­Quan had ap­pealed Jus­tice Kevin Ram­cha­ran’s Au­gust 21 de­ci­sion which de­nied the com­pa­ny an in­junc­tion to com­pel the State to sup­ply nat­ur­al gas to the plant.

The no­tice of dis­con­tin­u­ance comes at vari­ance with cor­re­spon­dence, shared to the com­pa­ny’s fi­nanciers, that it would seek all reme­dies from the State.

In an up­date to em­ploy­ees through an email, Ni­Quan founder and chief vi­sion­ary of­fi­cer Ains­ley Gill said the com­pa­ny has been en­gaged in me­di­a­tion with Trinidad and To­ba­go Up­stream Down­stream En­er­gy Op­er­a­tions Com­pa­ny Lim­it­ed (TTUDEO­CL), with Lord Neu­berg­er of Abotts­bury (the for­mer pres­i­dent of the Supreme Court in Eng­land) as the me­di­a­tor.

Gill said the me­di­a­tor de­liv­ered an ear­ly non-bind­ing “Ear­ly Neu­tral Eval­u­a­tion” on Jan­u­ary 20, 2024, which said the gas sup­ply con­tract had not been ter­mi­nat­ed and that the TTUDEO­CL had an oblig­a­tion to sup­ply gas in ac­cor­dance with that con­tract.

He not­ed that in the ab­sence of a gas sup­ply con­tract and in or­der to pro­tect Ni­Quan’s in­ter­ests, the com­pa­ny will “be pur­su­ing all its le­gal reme­dies for sub­stan­tial dam­ages from TTUDEO­CL and the Gov­ern­ment of the Re­pub­lic of Trinidad and To­ba­go”.

“This course of ac­tion is sup­port­ed by our lead fi­nan­cial arranger and note­hold­ers and in the in­ter­im, we have their sup­port to con­tin­ue the sta­tus quo in­clud­ing preser­va­tion of the plant in silent mode,” he said.

To this end, Gill said the em­ploy­ees would be fur­loughed for a fur­ther three months un­til April 30, 2024.

The June 15, 2023 ac­ci­dent at the plant, which even­tu­al­ly led to the death of 35-year-old pipe fit­ter Al­lan­lane Ramkissoon, and the sub­se­quent clo­sure of the plant for in­ves­ti­ga­tions by the Oc­cu­pa­tion­al Safe­ty and Health Agency and the Min­istry of En­er­gy and En­er­gy In­dus­tries (MEEI) af­fect­ed the com­pa­ny’s abil­i­ty to re-fi­nance its debt, which was set for Ju­ly 31.