Derek Achong

Se­nior Re­porter

derek.achong@guardian.co.tt

A High Court Judge has de­clined to weigh in on a vari­a­tion of her or­der in re­la­tion to an on­go­ing le­gal dis­pute over con­trol of Movi­eTowne in Port-of-Spain.

Last Fri­day, Trin­ba­go Com­mer­cial De­vel­op­ment Com­pa­ny Ltd (TCDC) sought an in­junc­tion af­ter the Port-of-Spain In­fra­struc­ture Com­pa­ny Lim­it­ed (POS­IN­CO), which man­ages land held by the Port Au­thor­i­ty of T&T (PATT) on which the en­ter­tain­ment and shop­ping com­plex sits, sought to take con­trol of the prop­er­ty over $10,904,121.23 in rental ar­rears.

POS­IN­CO was ini­tial­ly barred 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.

When the case came up for hear­ing be­fore Jus­tice Eleanor Don­ald­son-Hon­ey­well on Mon­day, TCDC agreed to pay $3 mil­lion to the court and POS­IN­CO agreed to not in­ter­fere with its op­er­a­tions and its ten­ants op­er­a­tions while its case is be­ing de­ter­mined.

Guardian Me­dia un­der­stands that af­ter the hear­ing, TCDC ap­proached Jus­tice Don­ald­son-Hon­ey­well for a vari­a­tion of her or­der, which was based on the par­ties’ un­der­tak­ings.

In an email sent yes­ter­day, how­ev­er, Jus­tice Don­ald­son-Hon­ey­well re­fused to host a hear­ing to­day (Au­gust 31) to con­sid­er the pro­posed change.

“On re­flec­tion, I am not con­vinced of the need for a hear­ing on Sat­ur­day,” Don­ald­son-Hon­ey­well said.

Not­ing that TCDC did not file an of­fi­cial ap­pli­ca­tion to vary her or­der, Jus­tice Don­ald­son-Hon­ey­well ques­tioned whether a vari­a­tion was, in fact, be­ing sought.

“The vari­a­tion sought is not sub­stan­tive, as it seems to serve the pur­pose of clar­i­fy­ing what is meant by the ‘op­er­a­tions’ that the De­fen­dant must not in­ter­fere with,” she said.

She al­so not­ed that even if she agreed to vary it af­ter hear­ing le­gal sub­mis­sions, the or­der could be changed when it is con­sid­ered by a col­league who will be as­signed to hear the sub­stan­tive case.

“Thus, this or­der, if I vary it on Sat­ur­day, may on­ly be rel­e­vant for a few days un­til the in­ter partes hear­ing is set,” she said.

Jus­tice Don­ald­son-Hon­ey­well gave the par­ties un­til 2 pm yes­ter­day to re­port back if they had agreed to a vari­a­tion.

How­ev­er, Guardian Me­dia was un­able to con­firm if an agree­ment was reached by the dead­line.

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 oc­cu­pied by Movi­eTowne.

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, 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,” it added.

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.

He claimed the com­pa­ny 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 loss of prof­its it sus­tained as a re­sult of POS­IN­CO’s ac­tions.

TCDC was rep­re­sent­ed by Deb­o­rah Peake, SC, Ravi Heffes-Doon and An­dre Rud­der. POS­IN­CO was rep­re­sent­ed by Justin Phelps, SC.