Derek Achong

Se­nior Re­porter

derek.achong@guardian.co.tt

Ten­ants at Movi­eTowne Port-of-Spain will have to seek le­gal ad­vice on who they should pay their rent to at the end of the week, as their land­lord con­tin­ues its le­gal ac­tion over a move to re­pos­sess the en­ter­tain­ment and shop­ping com­plex.

Last Fri­day, the Port-of-Spain In­fra­struc­ture Com­pa­ny Lim­it­ed (POS­IN­CO), which man­ages land held by the Port Au­thor­i­ty of T&T (PATT), sought to take con­trol of the com­plex over $10,904,121.23 in rental ar­rears al­leged­ly owed by Trin­ba­go Com­mer­cial De­vel­op­ment Com­pa­ny Ltd (TCDC), own­ers of Movi­eTowne.

Less than 24 hours lat­er, how­ev­er, TCDC ob­tained an in­junc­tion block­ing POS­IN­CO from is­su­ing com­mu­ni­ca­tions to its ten­ants, who were pre­vi­ous­ly told by the au­thor­i­ty that they had to make new arrange­ments with it over their con­tin­ued oc­cu­pa­tion of the venue.

When the case came up for hear­ing be­fore Jus­tice Eleanor Don­ald­son-Hon­ey­well, yes­ter­day, she re­fused to de­cide who should col­lect rent while the lit­i­ga­tion con­tin­ues.

TCDC lawyer Deb­o­rah Peake, SC, re­quest­ed that the ten­ants con­tin­ue pay­ing rent to her client, as she not­ed its abil­i­ty to keep the fa­cil­i­ty op­er­a­tional would be af­fect­ed by a lack of in­come.

“The claimant is be­ing placed in an in­evitable po­si­tion of not be­ing able to pay its li­a­bil­i­ties, in­clud­ing util­i­ties, se­cu­ri­ty, and main­te­nance fees,” she said.

At­tor­ney Christlyn Moore, who rep­re­sent­ed one ten­ant, ques­tioned whether pay­ing rent to the court would be a bet­ter op­tion.

“If we con­tin­ue to pay rent to the claimant (TCDC), would the de­fen­dant (POS­IN­CO) pur­sue us lat­er?” Moore asked.

Jus­tice Don­ald­son-Hon­ey­well was ini­tial­ly mind­ed to al­low the TCDC to con­tin­ue to col­lect the rent but de­cid­ed against the or­der af­ter POS­IN­CO lawyer Justin Phelps, SC, point­ed out that she did not have ev­i­dence from all the ten­ants who stood to be af­fect­ed.

Peake chal­lenged the po­si­tion.

“The claimant can’t speak for them be­cause they are our ten­ants and we must pro­tect their in­ter­ests. They (the ten­ants) are un­sure what to do and it may be un­like­ly to pay their rent un­til this is de­ter­mined,” Peake said.

She not­ed that TCDC was will­ing to re­pay the rent it re­ceives if it los­es its case with POS­IN­CO.

De­spite the con­cerns raised by Peake, Jus­tice Don­ald­son-Hon­ey­well still re­fused to grant the or­der and left it open to ten­ants to pay their rent to TCDC, POS­IN­CO, or the court af­ter seek­ing in­di­vid­ual le­gal ad­vice.

While there was strong dis­agree­ment on who should re­ceive the rent, TCDC and POS­IN­CO did agree on some is­sues in the case.

TCDC agreed that it would pay $3 mil­lion to the court, which will be held in es­crow un­til the sub­stan­tive case over the ar­rears is de­ter­mined.

POS­IN­CO al­so agreed not to in­ter­fere with the leas­es and op­er­a­tions of the ten­ants and TCDC.

Ear­li­er in the hear­ing, Peake claimed that POS­IN­CO had sta­tioned guards at her client’s ad­min­is­tra­tive of­fice and the com­plex’s ban­quet and con­fer­ence cen­tre. She said ad­min­is­tra­tive staff took al­most 20 min­utes to gain ac­cess to the of­fice to pre­pare a cheque.

Jus­tice Don­ald­son-Hon­ey­well not­ed that she could not en­ter­tain the claims, as they were not for­mal­ly filed as ev­i­dence be­fore her.

The dis­pute be­tween the par­ties re­lates to a lease for the 9.9 acres (4.0236 hectares) of land off the Au­drey Jef­fers High­way at In­vad­er’s Bay in Port-of-Spain, oc­cu­pied by the com­plex.

Be­fore con­struc­tion be­gan on the com­plex in 2001, the month­ly rent was re­port­ed­ly $6,500 per month based on a rate of 1.5 cents per square foot. The lease al­lowed for a rate re­view every five years. In 2006, the rent was in­creased to $72,000 per month.

By 2021, the rental rate was set at $283,000 per month based on a rate of 65 cents per square foot.

POS­IN­CO claimed it ex­er­cised its right to “re-en­try” un­der the lease af­ter TCDC failed to make any pay­ments over the past three years.

“This re-en­try ex­er­cise was un­der­tak­en as a con­se­quence of breach­es of the terms and con­di­tions of the ex­ist­ing Deed of Lease be­tween POS­IN­CO and TCDC,” it said in a press re­lease last week.

In a re­sponse, how­ev­er, TCDC ac­cused the au­thor­i­ty and its sub­sidiary of “high-hand­ed, il­le­gal and bul­ly­ing” ac­tion.

Stat­ing that it at­tempt­ed to pay $1 mil­lion to­wards the debt last Mon­day, it said, “TCDC has of­fered to set­tle all out­stand­ing rental sums which are not in dis­pute and at­tempt­ed to pay such sums by cheque.

“The cheque was re­turned notwith­stand­ing cur­rent dis­cus­sions to set­tle all mat­ters, in­clud­ing dis­put­ed amounts.”

In its sub­stan­tive law­suit, TCDC is chal­leng­ing the lat­est rental in­crease, which was based on a re­port pre­pared by reg­is­tered val­u­a­tion sur­vey­or GA Far­rell & As­so­ciates.

In an af­fi­davit, at­tached to its claim and ob­tained by Guardian Me­dia, TCDC di­rec­tor Ha­dyn John Gads­by claimed the in­crease was in­valid and un­der chal­lenge.

“The claimant’s po­si­tion is that the rent re­view car­ried out by the Far­rell Re­port is ir­ra­tional­ly high and is there­fore in­valid and void, as it could not have been car­ried out in ac­cor­dance with the or spe­cial as­sump­tion agreed by the par­ties,” Gads­by said.

Stat­ing that the premis­es should have been val­ued on the ba­sis that it was a swamp be­fore be­ing de­vel­oped by TCDC, Gads­by said the com­pa­ny re­ceived a re­port from an­oth­er sur­vey­or, who es­ti­mat­ed the month­ly rental val­ue to be $82,980.17 based on a com­par­i­son with oth­er sim­i­lar prop­er­ties.

“At the time of let­ting, the premis­es were cov­ered in bush, vines, sub­ject to se­vere wa­ter re­ten­tion and the topog­ra­phy var­ied and was sig­nif­i­cant­ly be­low the lev­el of sur­round­ing port lands to the east,” he said.

“The re­port fixed the rent at an un­law­ful­ly high ba­sis which un­just­ly en­rich­es the port,” he added.

He claimed the com­pa­ny had al­ready paid $5,327,970.74 in ad­di­tion­al rent based on the re­port and is re­quest­ing a re­bate if it is suc­cess­ful in its case.

Through the law­suit, TCDC is al­so seek­ing com­pen­sa­tion for a loss of prof­its it sus­tained as a re­sult of POS­IN­CO’s ac­tions.

The sub­stan­tive case is ex­pect­ed to be as­signed to an­oth­er High Court Judge, who will set a date for the next hear­ing.

TCDC was al­so rep­re­sent­ed by Ravi Heffes-Doon and An­dre Rud­der.