Accountant Garvey Louison (r) with his Barbadian lawyer Sean Lewis (l) on the precincts of the high court
An elated Garvey Louison feels that high court judge, Justice Margaret Mohammed vindicated him on Monday in the face of attacks on his integrity as an Accountant by Prime Minister Dr. Keith Mitchell.
The judge ruled in favour of Louison in a case in which Dr. Mitchell was seeking to remove him as the court-appointed Liquidator in the winding up of the now defunct GRENADA TODAY newspaper.
“ I feel exonerated in the face of these serious accusations that were leveled against me. I was accused of being unprofessional, bias, lacking enthusiasm and generally not pursuing the matter (of the Liquidation) with vigour”, said Louison in reference to remarks made against his professional integrity by PM Mitchell.
According to Louison, the accusations by PM Mitchell “are not true at all” and if he had allowed them to go unchallenged they would have go directly at “the heart of my professional integrity”.
The qualified Accountant who once served as Accountant-General and PS in the Ministry of Finance secured the services of Barbadian Attorney, Sean Lewis to defeat local barrister-at-law, Venescia Francis-Banfield who was retained by PM Mitchell.
Justice Mohammed also awarded Louison cost of $2000. 00 against Dr. Mitchell and ruled that the Grenadian leader presented no evidence before the court “to satisfy me of misconduct or wrongdoing on the part of the Liquidator…”.
As a public service, THE NEW TODAY reproduces some of the main aspects of the decision as handed down by Justice Mohammed.
Before the Court is an application (“the Application”) to remove the Court-appointed liquidator, Mr. Garvey Louison (“the Liquidator”) forthwith; to replace him with Mr. Rupert Agostini and for the Liquidator to submit and file into Court an audited report of his accounts and/or a report of the assets of Grenada Today Limited (“the Company”).
The facts which give rise to the Application are on: 19th October, 2005 the Petitioner (Keith Mitchell) filed a petition to wind-up the company on the basis that it owed the Applicant the sum of $191,000.00 pursuant to an award of damages made in High Court action GDAHCV 2001/0333. The Company was ordered to be wound up by Henry J on 27th October 2009 and the Liquidator, whose name was put forward by the Petitioner, was appointed by the Court and he was directed to exercise all his powers pursuant to the Companies Act (“the Companies Act”).
The grounds for the Application are:
(a). the Liquidator has failed to comply with his duties pursuant to the companies Act;
(b). there has been undue delay by the Liquidator to gather and account for the assets of the company;
(c). the Liquidator has failed to indicate to the Petitioner the location of the liquid assets of the company;
(d). the Liquidator has lost interest in the matter since he has failed to communicate with attorneys for the Petitioner and to attend Court; and
(e). the Petitioner desires to bring the liquidation to an end and to receive monies due and owing to him
The Liquidator has opposed the Application and has asked the Court to strike it out for the following reasons:
(a). there is no evidence from the Petitioner in support of the Application;
(b). he has complied with his duties set out in the Companies Act; and
(c) he has not lost interest and has vigorously pursued the matter.
The issues which arise for determination are:
(a). What is the test in law to remove the Liquidator?
(b). Does the Deponent have standing to make the Application to remove the Liquidator?
(c). Has the Deponent (a legal Secretary who filed an affidavit on behalf of the Petitioner) shown due cause?
(d). Should the Liquidator be removed?
It seems to me that in this jurisdiction, any person who moves the Court to have a Court-appointed Liquidator removed must establish that he/she is a proper person to make such an application and he/she must adduce evidence to persuade the Court that there are good grounds to exercise its discretion to remove liquidator.
It is undisputed that the Petitioner (Keith Mitchell) has not filed an affidavit in support of the Application. It is therefore necessary that the Court examines the principal affidavit and the supplement affidavit filed in support of the Application to determine if the Deponent has established a legitimate interest in the relief sought
In the principal affidavit and the supplemental affidavit the Deponent has made the following against the Liquidator namely:
(a). that since the date of the Liquidator’s appointment he has failed to comply with his duties under the Companies Act:
(b). that the only work the Liquidator has done since his appointment in 2009 was to cause an application to be filed on the 13th July 2011 seeking an order to summon various persons whom he believed were capable of giving evidence and/or to produce documents in their custody relating to their employment with the Company, on its affairs, list of assets and/or accounts receivables and financials of the Company;
(c). that since July 2011 the Liquidator has lost interest in the matter and was the sole cause of the undue delay experienced;
(d). she knows that Counsel (Francis-Banfield) has made several unsuccessful attempts to contact the Liquidator by telephone
(e). the liquidator failed to attend Court on the 18th of September 2013
(f). the Liquidator failed to respond to correspondences and telephone calls; and
(g). the Liquidator and his staff made certain statements and gave certain assurances.
For each allegation, which was not within her direct knowledge, the Deponent failed to set out who informed her/or what was the source of her information and belief for making the aforesaid allegations. Even with respect to the allegation of delay, she failed to set out details of such delay.
The Deponent has also made the following allegations based on the Petitioner’s belief:
(a). that the Petitioner fears that the assets of the Company may be dissipated;
(b). that the Petitioner fears that he will not be able to enjoy the fruits of his labour
(c). that the Petitioner is asking the Court to make an order to remove the Liquidator
However, again the Deponent fails to provide the basis for such allegations such as who and/or what informed her knowledge information and/or belief for making such statements.
In the Principal affidavit and the supplemental affidavit the Deponent states that she is a legal secretary. In paragraphs 3-6 and 8 of the supplemental affidavit she refers to being “informed by Counsel” but she fails to state her place of employment or whether she is employed by the Petitioner, a Law Chambers or otherwise.
She fails to depose her authority for swearing the Principal affidavit and supplemental affidavit. Indeed there is no evidence that she is authorised to swearing the principal affidavit and supplemental affidavit on behalf of the Petitioner or any other person in support of the application.
She does not even provide a reason to account for the failure by the Petitioner to file an affidavit in support of the Application.
The Application before the Court is not procedural but is for a final order to remove the Liquidator which has significant implications for the reputation of the Liquidator.
In my view, the Deponent has failed to comply with the requirements of CPR 30.3. At best the information contained in the principal affidavit and supplemental affidavits are allegations and is not in the Court’s view evidence in support of the Application.
Further, the Liquidator has even refuted the aforesaid allegations made by the Deponent. The Liquidator has stated that upon appointment he commenced control of the company in October 2009.
He corresponded with Mr. George Worme, the then Managing Director of the Company on the 2nd November 2009 seeking all relevant information. He examined the Statement of Affairs delivered to him on or about the 27th November 2009 by Mr. Worme, in accordance with section 389 of the Companies Act.
The Liquidator has also stated that he conducted further investigations in respect of the assets of the Company in November 2009 by interviewing former employees such as Ms. Jose Joseph, an Administrative Assistant at the Company.
He requested specific information relating to the affairs of the Company. He examined statements relating to the Company’s National Insurance payments and liabilities. He attended Court and applied for and obtained orders made on 11th December 2009 that Mr. Worme deliver to the Liquidator a Statement of Affairs and list of all assets held by the Company within 10 days.
He attended Court and applied for and obtained a further Order vesting all or any property, real or otherwise of the Company in his possession. He published a report giving notice to the Creditors of the Company, including the Petitioner, of the cash of the Company and identifying the liabilities of the company as at 21st December 2009.
He also caused witness summonses to be issued summoning certain former staff members to Court for them to be examined under section 420 of the Companies act.
He stated that the only time he has failed to attend Court was when neither he nor his attorney was notified by the Supreme Court Registry of the hearing of the 18th September 2013.
He denies appointing Mrs. Francis-Banfield as his legal representative in this matter and that he changed his business address. He states that his address was and remains True Blue, St George’s, Grenada.
According to Court’s records. Mrs Francis-Banfield’s notice filed on 23rd April 2013 states that she replaced Justis Chambers, who were the attorneys on the record for the Liquidator, yet at the hearing of the witness summons on 18th September, 2013 she announced that she was appearing for the Petitioner, although she was the attorney who issued the witness summons filed on the 23rd April, 2013, as Counsel of the Kiquidator.
As such the affidavit of service for the said witness summonses were for the persons who were summoned to attend Court and quite reasonably there was no evidence of the Registry notifying the Liquidator since according to the Court’s records Mrs. Francis-Banfield was the attorney on record for the Liquidator.
In light of his confusion, I accept the Liquidator’s reasons for his failure to attend Court on the 18th September 2013 and I do not find that this is an act which demonstrates a lack of interest on his part.
The Liquidator has denied any delay on his part. He stated that between October 2009 and July 2011 he was conducting interviews and compiling information on the status of the assets and liabilities of the Company.
He states that on 20th January 2012 he attended Court with respect to an application to have the Court examine certain parties under oath, and it was only in March 2012 upon receipt of the perfected order he was able to issue the summons for persons to attend Court to be examined.
He stated that the persons, who have been summoned although not examined as yet, are aware of their obligations to return to Court.
In light of the Liquidator’s evidence, the allegations made by the Deponent in the principal affidavit and supplemental affidavit have been refuted by the Liquidator and are baseless.
I therefore agree with the Liquidator that the Deponent has failed to adduce evidence to establish that she has a legitimate interest in the relief sought and as such I find that she has no locus standi in seeking the reliefs in the Application.
In light of the Liquidator’s evidence which has been already set out aforesaid, I find that this is not a case where the Liquidator has done virtually nothing….
In my view the Liquidator has not been unprofessional, biased or dishonest. There has also been no evidence to satisfy me of misconduct or wrongdoing on the part of the Liquidator, and he has not adopted a relaxed or complacent attitude in pursuing the liquidation.
In hindsight there may be some criticisms which may be leveled against him such as contents of his reports, but when one looks at the totality of the evidence it would be unfair to the Liquidator and unnecessary, expensive and disruptive to remove the Liquidator. I can find no reason to remove him for due cause.
The Application is dismissed. The Petitioner to pay the Liquidator the costs of the Application assessed in the sum of EC $2,000.00.