10292019 BUSINESS

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business@tribunemedia.net

TUESDAY, OCTOBER 29, 2019

$4.52 Sarkis receiver claims ‘wrong, misconceived’

By NEIL HARTNELL Tribune Business Editor nhartnell@tribunemedia.net SARKIS Izmirlian’s accusations that Baha Mar’s former receivers breached a Supreme Court order by passing material to the project’s contractor have been blasted as “misconceived and wrong”. Brian Simms QC, senior partner at Lennox Paton, told the original developer’s US attorneys in an August 28, 2019, letter that the Order did not prevent the “voluntary release” of documents in the Supreme Court files to parties such as China Construction America (CCA). Mr Simms, who represented both Baha Mar’s financier, the China Export-Import Bank, and the Deloitte & Touche receivers it subsequently appointed for the $4.2bn Cable Beach mega resort, wrote that the Order was merely intended to protect such documents from being accessed by persons not involved with the dispute between Mr Izmirlian and his erstwhile Chinese partners. “Your claim that the documents were provided to China Construction in breach of an order of the Bahamas Supreme Court is misconceived and wrong,” Mr Simms told Mr Izmirlian’s US attorney, Peter Sheridan. “The order in question only prohibits inspection by third parties of affidavits and their exhibits that have been placed on the court file. The order does not prohibit the voluntary release to third parties of documents.” Mr Simms’ letter, not surprisingly, has been seized upon by CCA and its US attorneys amid their ongoing battle with Mr Izmirlian and his BML Properties vehicle over whether legal opinions and valuation reports - which the latter claims are confidential legal documents that belong to him - can be used as evidence in their $2.2bn fraud and breach of contract dispute.

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B

ANK of The Bahamas has defeated an ex-Cabinet minister’s bid to enforce a $6m default judgment against it despite being branded “careless and negligent” in its approach to the case. Stephana Saunders, the Supreme Court’s deputy registrar, found that there was sufficient “merit” in the BISX-listed institution’s defence to set aside the default judgment obtained by companies 50 percent owned by the family trust of Damian Gomez, former minister of state for legal affairs under the former Christie government. Mr Gomez last night told Tribune Business his attorneys had “lodged an immediate appeal” following the deputy registrar’s October 21, 2019, ruling on the basis that she had “no jurisdiction” to set aside the default judgment obtained when Bank of The Bahamas failed to file a defence within the time ordered. Miss Saunders found that the dispute, which plunged Bank of The Bahamas into

• Bank rapped for ‘careless’ defence • But rescued by ‘strong merits’ of case • Gomez: Appeal lodged immediately

DAMIAN GOMEZ a $4.039m net loss for the three months to end-March 2019 after it was forced to take provisions to cover the claim, should be dealt with at a full Supreme Court trial featuring evidence from both sides. But Mr Gomez said: “We lodged an appeal immediately following the ruling of the deputy registrar in Freeport. We are attempting to have the appeal/ rehearing heard as quickly as possible. We know that the circumstances in Freeport are challenging given the Dorian damage, [but] in spite of the setbacks we are

confident we will have our matter heard as quickly as possible.” Companies that are jointly owned 50/50 by the family trusts of Mr Gomez and David Jennette had initially obtained a default judgment against Bank of The Bahamas on March 31, 2016, after it failed to appear in response to the action they filed over a mortgage loan dispute. The four disputed loans, which were secured on real estate controlled by the trusts’ companies, totalled some $7.659m. Bank of The Bahamas is also also alleging “breach of fiduciary duty” for failing to ensure compliance with leases that were assigned to it as collateral for credit extended to one of the companies. The first default ruling was set aside prior to then-acting Supreme Court justice, Andrew Forbes, ordering that the dispute proceed to trial in traditional fashion before the Supreme Court. While the companies owned by

A GOVERNANCE reformer yesterday argued “nothing has changed” to improve The Bahamas’ stagnant ease of doing business ranking, as he revealed: “I don’t know how much more I can take.” Robert Myers, a principal with the Organisation for Responsible Governance (ORG), cited recent personal experiences with driver’s licence renewals, bank account opening and customs registration as to why he was reluctant to invest in more business ventures in The Bahamas. A proprietor with multiple businesses, Mr Myers said he was now thinking of leaving “capital sitting in the bank” rather than “continuing to invest in this country decade after decade” as he has done due

the family trusts filed their case in accordance with the judge’s orders, Bank of The Bahamas failed to submit its defence, leading to another default ruling. That was granted two years ago in October 2017, and the family trusts of Messrs Gomez and Jennette subsequently obtained a multi-million damages award Bank of The Bahamas on March 7, 2019, before moving to enforce it. Bank of The Bahamas argued that the default judgment was “irregular” and should be thrown due to “mixed claims” being made against it. The trusts, for their part, alleged that the deputy registrar had no jurisdiction and could not interfere because the judgment stemmed from a Supreme Court judge’s order, meaning any challenge could only be heard by the Court of Appeal. Miss Saunders, disagreeing with both arguments, found that the Supreme

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Marina operator fears over boating fee hikes By YOURI KEMP and NEIL HARTNELL Tribune Business Reporters BAHAMIAN marina operators yesterday warned that proposed boating fee hikes will “definitely put people off” despite the government cutting some levies by up to 60 percent. Peter Maury, the Association Of Bahamas Marinas’ (ABM) president, told Tribune Business that the industry felt negotiations over up to near seven-fold fee increases - which were announced in last year’s budget - had never been completed due to the interruption provided by Hurricane Dorian. He revealed that the association believed the increases to still be too high, and that it was seeking further reductions, even though the Ministry of Tourism has gone ahead and revealed the new fee schedule on its website - a development

• Associated chief: We thought talks ongoing • Top fees cut 60% but still considered too high • Industry wants six-month fee, not for three that is now being picked up by international boating and yachting media. The new schedule contains a two-tier structure, with separate fees for a three-month and annual stay cruising Bahamian waters. Yet Mr Maury told this newspaper he and the association would prefer a six-month and annual fee schedule, not a quarterly charge. “We never finished the negotiations with the government,” Mr Maury said. “We wanted to negotiate a better rate, and we were supposed to meet. Because of the storm we never met again after we sent our initial letter to the government on their initial proposed fee rates. We wrote a letter and said the

fees were too high, and can we come into something more agreeable.” He revealed that the government was initially proposing that large boats of 200 feet and over were going to be charged $5,000 for an annual permit, but this was negotiated down to the current $2,000. Mr Maury said he never knew the government had finalised the fee structure, and no communication was given prior to the Ministry of Tourism publishing it on its website. “Definitely I think the price hike will put people off,” he added. “The bigger boats are the ones we want to keep the most, and they are the ones that are going to be hit the hardest. “We particularly wanted

‘I don’t know how much more of this I can handle’ By NEIL HARTNELL Tribune Business Editor nhartnell@tribunemedia.net

$4.55

‘Negligent’ BOB defeats ex-minister’s $6m default By NEIL HARTNELL Tribune Business Editor nhartnell@tribunemedia.net

BRIAN SIMMS QC

$4.57

• Businessman ‘not alone’ over ‘headaches’ • Driver licence, bank account, customs woes • Queries if continued frustrations ‘worth it’

ROBERT MYERS to the “headaches” created by the Bahamian economy’s structural bottlenecks. Speaking after The Bahamas fell by one notch to 119th spot in the World Bank’s “ease of doing business rankings”, the ORG chief said he was “sure I’m not alone” among entrepreneurs mulling whether it

was “worth” the frustration to continue taking risks in a bureaucratic, inefficient economy. He added that there had been no reforms of significant enough impact to justify an improvement in the World Bank rankings, and added that the ongoing stresses and hassles of operating a company in this nation were likely to be a key factor for some business owners in deciding whether to rebuild after Hurricane Dorian. “I incorporated a business earlier this year and it must have taken me at least, I’m not kidding, four months to have gotten a bank account open,” Mr Myers told Tribune Business. “That’s

through the business licence process, the lawyers and everything else. “It took four months to get the accounts open, and I’m still waiting for digital banking. I have an account but can’t access it digitally. It takes too damn long. It’s obscene how long it takes. It’s just arduous. “If I was not Bahamian and involved, I’d be pulling my hair out, leave and go elsewhere. You just give up. It definitely hurts us. No doubt. It’s not just the cost; it’s the ease and cost of business. The harder they make it to do business, the more costs go up,” he continued. “You have to hire a lawyer

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the fee schedule broken down by six months to a year, and not three months to a year. The point is to keep these boats here in The Bahamas. The longer they spend here the more money they spend in The Bahamas.” According to the Ministry’s website, the fees for boats entering The Bahamas will be increased from the current $150 for boats up to 35 feet in length and $300 for larger vessels. The new fees, to take effect from January 1, 2020, are: Boats Up to 34 feet: $150 for three months; $300 annually; Boats from 35 to 100 feet: $300 for three months; $600 annually;

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$4.56 Operators unite against URCA’s 3-year phase-in By NEIL HARTNELL Tribune Business Editor nhartnell@tribunemedia.net CABLE Bahamas and the Bahamas Telecommunications Company (BTC) have united in opposition to regulators’ proposals to gradually lower call termination rates over a three-year period. The giant communications rivals, together with the former’s Aliv mobile operator, lashed the Utilities Regulation and Competition Authority’s (URCA) plan for such a “glide path” as “unnecessary and unreasonable” given that it has had ample time to develop final rates. Cable Bahamas, pointing out that termination rates were already “grossly outdated”, argued that any transition should last no longer than one year, while Aliv said it would only add to the “substantial delay” caused by the review being one year late. “Cable Bahamas strongly disagrees with a glide path, especially of three years,” the BISX-listed operator said. “Cable Bahamas is of the view that a glide path should be no more than one year, and finds interim rates acceptable given that the current termination rates are grossly outdated. “Current rates are obsolete, and a rational operator would have forecast a termination rate reduction and planned for its impact. Cable Bahamas proposes a much faster correction of rates to ensure they are cost-based. Any time lag results in over-recovery of costs for operators at the expense of consumers as long as service unit costs of production keep falling.” Cable Bahamas added: “Current rates are at least three years out of date, and the implementation of the proposed rates may take another year. Adding a three-year glide path towards cost-based rates implies at least a seven-year delay before the Bahamian market can benefit from cost-based rates. “Cable Bahamas is aware of three-year glide paths in other jurisdictions, but notes that in the cases it has looked at the total delay until cost-based rates were ultimately reached was substantially shorter than at least seven years.” This was echoed by Aliv’s response to URCA, which said: “Aliv furthermore does not support URCA’s proposal for a three-year glide path to update the

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