THE REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

Claim No. CV2014-02872

BETWEEN

3G TECHNOLOGIES LIMITED

First Claimant/First Applicant

DONALD SEECHARAN

Second Claimant/ Second Applicant

FARIZA SHAAMA SEECHARAN

Third Claimant/Third Applicant

AND

RUDRANAND MAHARAJ

Defendant/Respondent

BEFORE THE HONOURABLE MR. JUSTICE ROBIN N. MOHAMMED

Appearances:

Mr. Odai N.S. Ramischand and Mr. Riaz P. Seecharan instructed by Mr. Stephan Mungalsingh for the
Claimants/Applicants

Mr. Kerywn Garcia instructed by Mr. Romney Thomas for the Defendant/Respondent

____________________________________________________________________________________

DECISION ON CLAIMANTS’ APPLICATION FOR INTERIM RELIEF

_____________________________________________________________________________________

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INTRODUCTION, APPLICATION AND PROCEDURAL HISTORY

1. Before this Court is the Claimants’/Applicants’ Notice of Application filed on the 1st
October, 2014 whereby the Claimants/Applicants seek the following forms of relief
pursuant to Part 26.1(t), Part 26.1(w) and Part 17.1(1)(a) of the Civil Proceedings
Rules 1998 (as amended) (“the CPR”):

(i) An Order that the Bankruptcy and Insolvency Act 2007 statutorily prohibits Romney
Thomas/Hobsons, Attorneys-at-Law for Scotiabank of Trinidad and Tobago Limited
(Scotiabank), from advising and/or representing and/or acting as Attorney-at-Law for
the Defendant/Respondent, and that Romney Thomas/Hobsons is prohibited
statutorily by (sic) from so advising and/or representing and/or acting for the
Defendant.

(ii) An Order that Mr. Rudranand Maharaj, the Defendant/Respondent is not a licensed
trustee under the Bankruptcy and Insolvency Act 2007 and that the Bankruptcy
and Insolvency Act 2007 statutorily prohibits the Defendant/Respondent from acting
as a receiver of the First Claimant and/or obtaining the income of the property of the
Second and Third Claimants/Applicants situate at 112-114 Duke Street, Port-of-
Spain.

(iii) An Order that the document filed by the Defendant at the Companies Registry
purporting to appoint himself as receiver of the First Claimant is null and void and of
no effect and that the said document be struck out and removed forthwith from the
Companies Registry.

(iv) An Injunction restraining and/or prohibiting the Defendant/Respondent, his servants

and/or agents from acting as receiver in any way whatsoever of the First Claimant
and/or the Defendant’s/Respondent’s agents of the property of the Second and Third
Claimants/Applicants situate at 112-114 Duke Street, Port-of-Spain.

(v) An injunction restraining the Defendant/Respondent, his servants and/or agents from
disposing of the income of the First Claimant received and to deliver up to the
Claimants all monies of the First Claimant obtained by him and/or his agents.

(vi) That the cost of this Application be paid by the Defendant/Respondent to the
Claimants/Applicants.

2. On the 7th August, 2014 the Claimants filed their Claim Form, together with their
Statement of Case, challenging the appointment and subsequent actions of the receiver
(the Defendant/Respondent) in relation to property situate at 112-114 Duke Street, Port-

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 of-Spain. In the said Claim Form and Statement of Case, the Claimants sought certain
forms of relief. An Appearance was entered by the Defendant on the 11th August, 2014.
This was followed by the filing of the Claimants’ Notice of Application of the 1 st
October, 2014, which forms the subject matter of this decision, and the affidavit of
Donald Seecharan of even date.

3. The Claimants/Applicants then filed an Amended Claim Form on the 6th October, 2014
seeking the following forms of relief:

1. A Declaration that the Registration of Enforcement of Security and all related

registrations including the Notice of Appointment of Receivers dated the 14th day
of November, 2013 respectively registered pursuant to the Companies Act
Chapter 81:01 by the Defendant Rudranand Maharaj that he, the said Rudranand
Maharaj, has appointed1 a Receiver of 3G Technologies Limited, the First
Claimant herein, and that the said documents are illegal, null and void and of no
effect and that same be struck out and be removed by the Registrar of Companies
from the Companies Registry;

2. A Declaration that the purported appointment of the Defendant, Rudranand

Maharaj, as Receiver (hereinafter referred to as the ‘Illegal Receiver’) of the First
Claimant, on the 14th November, 2013, by Carlene Seudat and Rachel Daniell
purporting to act for and on behalf of Scotiabank Trinidad and Tobago Limited
(hereinafter referred to as ‘Scotiabank’) is illegal, null and void and of no effect;

3. A Declaration that the purported appointment by written agreement made on the

15th November, 2013, between Carlene Seudat and Christine Nunes purporting to
act for and on behalf of Scotiabank and the Defendant appointing the Defendant
as Receiver of the income of the property described in the schedule thereto known
as and situate at Nos. 112-114 Duke Street, Port-of-Spain, (hereinafter referred to
as the said ‘Property’) at a commission of 8% on the gross amount of all income
collected is illegal, null and void and of no effect;

4. A Declaration that the acceptance by the Defendant of his purported appointment

as Receiver of the First Claimant and all of his acts as the Illegal Receiver are
illegal, null and void and are acts of trespass;

5. A Declaration that the acceptance by the said written agreement of the Defendant
of his purported appointment as Receiver of the income of the said Property, and
all of his subsequent acts are null and void and constitute acts of trespass.

1
It appears that what was meant was: “he has been appointed a Receiver”

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(a) A Declaration that the Defendant is in contravention and in breach of the
Bankruptcy and Insolvency Act 2007 (hereinafter referred to as “the BIA”)
and is statutorily barred and/or prohibited from acting as receiver;

(b) A Declaration that the Defendant does not have the requisite license as
specified under the Bankruptcy and Insolvency Act 2007 and that the
Defendant in purporting to act and/or continue to act as receiver, is in breach
of the Bankruptcy and Insolvency Act 2007;

(c) An Order that Mr. Rudranand Maharaj, the Defendant, is not a licensed trustee
under the BIA and that the BIA statutorily prohibits the Defendant from
acting as a receiver of the First Claimant and/or obtaining the income of the
property of the Second and Third Defendants situate at 112-114 Duke Street,
Port-of-Spain and that any possible criminal offence be referred forthwith to
the Office of the Director of Public Prosecutions for investigation and/or the
Institute of Chartered Accountants of Trinidad and Tobago for professional
misconduct;

(d) A Declaration that the appointment of the Defendant as a receiver of the First
Claimant is statutorily prohibited by the Companies Act and any such
appointment is in breach of the Companies Act;

(e) A Declaration that the appointment of the Defendant is in contravention to the

Conveyancing and Law of Property Act and that he is statutorily prohibited
and/or prevented to act as a receiver of the income of the property situate at
112-114 Duke Street, Port-of-Spain;

(f) A Declaration that any and/or all acts done by the Defendant purporting to be
receiver of the First Claimant including the collection of income of the
property of (sic) situate at 112-114 Duke Street, Port of Spain are illegal, null
and void;
(g) An Order that any and/or all monies collected by the Defendant purporting to
act as a receiver in any way whatsoever of any of the Claimants be returned
forthwith and/or delivered up immediately to the Claimants;

(h) A Declaration that the Defendant is in breach of and/or has contravened

provisions of the BIA and/or the Financial Institutions Act (hereinafter
referred to as “the FIA”) and/or the Companies Act and is not a fit and
proper person to be appointed as a receiver under the said Acts;

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 (i) A Declaration that the BIA statutorily prohibits the Defendant from getting an
opinion and/or advice and/or representation from an Attorney-at-Law who
acts for Scotiabank, a secured creditor and that the opinion and/or advice
and/or representation of the Attorney Romney Thomas to the Defendant is
illegal, null and void and of no effect;

(j) A Declaration that the Defendant is in breach of the BIA and/or the Legal
Profession Act (hereinafter referred to as “the LPA”) in taking advice and
being represented by Romney Thomas of the firm Hobsons as his Attorney-at-
Law to advise and represent him knowing that the said Attorney-at-Law/Firm
acts for and represents Scotiabank Trinidad and Tobago Limited (“hereinafter
referred to as Scotiabank”), a secured creditor, which statutorily prohibits such
advice and representation;

6. A injunction compelling the Defendant to forthwith cease acting pursuant to his

purported appointment as Receiver and to forthwith hand over and restore to the
Claimants all of the assets taken into his possession or control or received by him
in particular the said Property;

7. A Declaration that the Defendant do pay to the Claimants all monies collected
and/or received by him acting pursuant to his purported appointment as Receiver
of the First Claimant and of the said Property of the Second and Third Claimants;

8. Damages for trespass including compensatory, punitive, special and exemplary

damages;

9. An Order that the Defendant do pay to the Claimants interest on such sums
payable as this Honourable Court may deem fit;

10. Costs; and

11. Such further and other Orders as this Honourable Court may deem necessary.

4. The filing of the Amended Claim Form was followed by the filing of a supplemental
affidavit on behalf of the Applicants on the 8th October, 2014.

5. At the hearing of the said application on the 8th October, 2014 the Court directed that
the Defendant’s defence be put on hold pending the decision of the said application.

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6. Written submissions were filed on behalf of the Claimants on the 17th October, 2014
along with authorities. This was followed by the filing of a response on behalf of the
Defendant on the 31st October, 2014. This Court made a very specific order on the 8th
October, 2014 purportedly pursuant to which the Claimants have filed their extensive
submissions. I will comment further on the nature of the submissions filed by the
Claimants in due course.

7. The Claimants further filed written submissions on the 19th November, 2014 purportedly
in response to the submissions filed by the Defendant without permission having been
given by the Court. Strong objection to this was taken by the Defendant’s Attorney-at-
law, Mr. Romney Thomas, in the form of a letter dated 5th December, 2014 directed to
the Court through the Judicial Support Officer to the presiding Judge. The said letter
which was also copied to Mr. Kerwyn Garcia, Counsel for the Defendant and to Mr. Odai
Ramischand, Counsel for the Claimants, stated thus:

“We refer to the above captioned matter and the submissions filed by the
Claimants in response to the Defendant’s Submissions filed on 19th
November 2014.

We take strong objection to the filing of these submissions by the

Claimants without the permission of the Court. Their filing is a further
demonstration of the Claimants’ blatant disregard for the Court’s order
which restricted the Claimants only to filing and serving copies of their
Authorities referred to the Court during the hearing of the Application,
together with a note on what the authorities are for.

The Defendant is extremely disturbed by the Claimants’ continued

violation of the Court’s order and respectfully calls upon His
Lordship to visit the Claimants with the appropriate sanctions.

Kindly bring this letter to the attention of His Lordship at the earliest
possible convenience.”

8. Subsequent to this, the Defendant then filed an affidavit on the 6th March, 2015
purportedly in response to issues raised in the Claimants’ Notice of Application and
affidavit in support heard on the 8th October, 2014. This affidavit was constituted by 6
paragraphs long with 2 exhibits attached. In response thereto, the Second Claimant then
filed an affidavit on the 16th March, 2015 constituting 46 paragraphs with 10 exhibits
attached.

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9. It is to be noted that the Defendant’s affidavit of the 6th March, 2015 and the Second
Claimant’s affidavit of the 16th March, 2015 were also filed without permission of the
Court and at a time when the Court was deliberating to deliver its decision on the said
Notice of Application heard on the 8th October, 2014. To this date no application has
been made for permission to use all or any of the documents filed after the hearing of the
said Notice of Application for which no direction or permission was given. It must be
stated in the strongest of terms that the Court frowns upon this style of litigation which,
in no uncertain terms, undermines the underlying philosophies of the new civil justice
system predicated upon a case management environment governed by the CPR 1998.
The overriding objective which mandates the Court to deal with all matters justly is
severely thwarted when Attorneys and parties conduct litigation at their own pleasure free
from the operative rules and directions of the Court thereby violating the fundamental
principles of equality, economy, proportionality, timeliness and fairness, all embodied in
the overriding objective.

10. It is on this basis that this Court has taken the decision to disregard all documents filed
after the hearing of the said Notice of Application which were filed contrary to the
Court’s directions and/or without the permission of this Court. Accordingly, the
Claimants’ response submissions filed on the 19th November, 2014, the Defendant’s
affidavit filed on the 6th March, 2015 and the Second Claimant’s affidavit filed on the
16th March, 2015 be and are hereby struck out. The Claimants’ written submissions with
authorities filed on the 17th October, 2014 will be considered insofar as they are in
accordance with the Court’s directions and order given on the 8th October, 2014.

ISSUES ARISING FROM THE APPLICATION

11. From the evidence, the main issues which fall to be determined are as follows:

(i) Whether the Bankruptcy and Insolvency Act 2007 applies to the Defendant’s
appointment as Receiver?

(ii) Whether Mr. Romney Thomas’/ Hobsons’ advising of and/or acting for/and
or representing the Defendant and Scotiabank amounts to a conflict of
interest and is statutorily prohibited?

(iii) What is the nature of the relief sought by the Claimants at (2)-(5) of the
stated relief sought in their Notice of Application of the 1st October, 2014 and
whether such relief is permissible at this stage of the proceedings?

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 (iv) Whether there was undue delay by the Claimants in the filing of their Notice
of Application and whether such delay impacts upon the relief sought?

(v) Whether the Claimants are entitled to maintain this action?

LAW AND ANALYSIS

(i) Whether the Bankruptcy and Insolvency Act 2007 (BIA) applies to the Defendant’s
appointment as Receiver?

12. The Claimants submit that the BIA governs all receivers and persons purporting to be
receivers and that the Defendant must comply with the BIA. The Claimants further
submit that in being unlicensed or bonded, the Defendant is in breach of the BIA.

13. As may be seen, many of the Claimants’ grounds for relief and consequently, the actual
forms of relief being sought, are based on the Bankruptcy and Insolvency Act 20072.
Accordingly, they necessarily rely upon the applicability of same to the instant case.

14. The Bankruptcy and Insolvency Act is Act No. 26 of 2007. It was assented to on the
28th September, 2007. Section 2 of the BIA concerns commencement and stipulates that
“This Act comes into force on such date as is fixed by the President by Proclamation”.
By Proclamation contained in Legal Notice No. 3 of 2014, the BIA came into operation
on the 26th May, 2014.

15. The appointment complained of, that is, the alleged illegal appointment of the receiver,
took place, according to the Claimants, on the 14th November, 2013, before the BIA
came into force. In the circumstances, the issue which falls to be resolved is whether the
BIA applies retrospectively.

16. There is a presumption against the retrospective operation of Acts. Bennion’s Statutory
Interpretation, 4th Ed. 2002 states the position as follows:

“Unless a contrary intention appears, an enactment is presumed not to be intended to

have a retrospective operation… The true principle is that lex prospicit non respicit
(law looks forward not back).”

2
See numbers (1) and (2) of the ReliefS sought at pages 1 and 2 of the Notice of Application, (1),(3) and (5) of the
Grounds of the Application stated at pages 2 and 3 of the said Application (relating to the Order prohibiting
Romney Thomas/Hobsons from acting as attorney-at-law for the Defendant) and (1)and (3) of the Grounds of the
Application stated at page 3 thereof (relating to the Injunction sought against the Defendant).

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 17. Simon’s Taxes also addresses the issue of the retrospective application of legislation.
Citing Bennion3, it provides that-
“A statute will have retrospective effect only if its retrospective operation is stated in
clear terms or arises by necessary and distinct application from its terms”.

18. The reasons for the presumption against the retrospective application of legislation were
stated by Viscount Simonds in John Hudson & Co Ltd v. Kirkness [1955] AC 696,713.
The learned judge stated that-

“When an Act of Parliament becomes law and its meaning is plain and unambiguous a
citizen is entitled to order his affairs accordingly and to act upon the footing that the
law is that it unambiguously is. He must be assumed to know that the law may be
altered but, if so, he may be assumed to know also that it is contrary to the general
principles of legislation in this country to alter the law retrospectively…”

19. In their oral submissions, the Claimants relied upon section 269 of the BIA which
provides as follows:

“269. With effect from the date of the commencement of this Act-
(a)any winding up which is commenced or treated as having commenced before
the commencement of this Act, or
(b) any case in which a petition in bankruptcy was presented, or a receiving order
or adjudication in bankruptcy was made before the commencement of this Act,
shall be subject to the law in force immediately before the commencement of this
Act.”

20. According to the Claimants, section 269 clearly specifies a winding up and a petition in
bankruptcy, neither of which is applicable in the instant case. The Claimants therefore
appear to be suggesting that prior law in the circumstances would not be applicable in the
instant matter.

21. Attorney for the Defendant submits that the Claimants have failed to show why the BIA
has retroactive effect. With respect to section 269 of the BIA, he submits that the
Claimants have misread the section and replaced the word “any” with “only”. That, he
contends, is plainly not what the language of the section says. Attorney for the Defendant
submits that the Claimants would have the Court read it so that only the instances stated
at section 269(a) and (b) are subjected to prior law. He contends that the correct
interpretation is that section 269(a) and 269(b), together with anything else, is subject to
prior law. This is because the law turns its face to retroactivity.

3 th
Bennion, Statutory Interpretation, 4 ed. 2002 (Butterworths) Part IV, Section 97 and Part XVI, Section 267.

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 22. As was stated by Bennion, there is a presumption against the retrospectivity of legislation
and this presumption is only displaced where its retrospective operation is stated in clear
terms or where it arises by necessary and distinct application from its terms. The BIA
does not contain express terms indicating that it is intended to operate retrospectively.
Further, retrospective operation does not arise by necessary and distinct application from
its terms. Indeed, given that the presumption against retrospectivity has not been
displaced, the transitional provision at section 269 ought to be interpreted in such a way
as to mean that the express situations stated therein, and other instances, shall be subject
to prior law. It is only if the presumption were displaced that the Claimants’ restrictive
interpretation would apply. Accordingly, the BIA, which came into force on the 26th
May, 2014, will only apply to circumstances arising from that date onward and not
before.

23. The appointment of the Defendant as receiver having taken place in November, 2013, the
provisions of the BIA would thus not be applicable so as to operate to make his appointment
illegal for being in breach of the provisions of the said Act.

24. In their written submissions, the Claimants argued that a distinction is to be drawn between
retroactivity and retrospectivity. They submit that the BIA is retrospective in effect and not
retroactive. I am afraid that this submission does not take the Claimants any further. This is
because whether it be retroactive or retrospective, the Act must state so in clear terms or it
must arise by necessary implication from its terms, neither of which is the case here.

(ii) Whether Mr. Romney Thomas’/ Hobsons’ advising of and/or acting for/and or
representing the Defendant and Scotiabank amounts to a conflict of interest and is
statutorily prohibited?

25. The Claimants contend that Mr. Romney Thomas’/Hobsons’ advising of and/or acting
for and/or representing the Defendant in this matter and acting as attorneys-at-law for
Scotiabank amount to a conflict of interest.

26. In their Statement of Case, the Claimants stated that the 2nd and 3rd Claimants received
correspondence from Messrs. Hobsons of legal proceedings to be commenced by
Scotiabank. This letter was preceded by another dated the 24th April, 2013 from Messrs.
Hobsons stating that legal proceedings would be instituted against them and nothing was
stated about the appointment of a receiver. In their Notice of Application, the Claimants
stated that the appointment by the Defendant of Romney Thomas/Hobsons who filed an
appearance on the 11th August, 2014 for the Defendant is in breach of the BIA. They rely
upon section 184 of the said Act, and submit that the said section unqualifiedly prohibits

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 the attorney from so acting as he and/or his firm acts for Scotiabank who holds a
debenture and a collateral mortgage as security for a loan of the First Claimant.

27. Attorney for the Defendant submits that a proper reading of section 184 cannot yield the
construction put on it by the Claimants, as section 184 treats with the conduct of trustees
and not attorneys-at-law. He accordingly submits that section 184 is not relevant.

28. I note that section 184 of the BIA provides as follows:

“184(1). No trustee shall, while acting as the trustee of an estate, act for or assist a
secured creditor of the estate to assert any claim against the estate or to realize or
otherwise deal with the security that the secured creditor holds, unless the trustee has
obtained a written opinion of an attorney-at-law who does not act for the secured
creditor, that the security is valid and enforceable as against the estate.
(2) On commencing to act for or assist a secured creditor of the estate in the manner set
out in subsection (1), a trustee shall notify forthwith the Supervisor and the creditors or
the inspectors-
(a) that the trustee is acting for the secured creditor;
(b) of the basis of any remuneration paid by the secured creditor; and
(c) of the opinion referred to in subsection (1).

(3) Within two days after receiving a request for a copy of the opinion referred to in
subsection (1), a trustee shall provide a copy to each creditor who has made a request for
a copy.”

29. It is clear from the foregoing that section 184 of the BIA is applicable to a trustee and not
to an attorney-at-law, save and except if he were acting as a trustee of the estate. It does
not prohibit attorneys from acting for receivers. Section 184 directs how a trustee ought
not to act unless a written opinion is obtained from an independent Attorney-at-law and it
further stipulates procedural steps which the trustee must take where it does indeed act in
the manner set out in the section. Mr. Thomas and Hobsons are not trustees in the instant
matter and accordingly, the provisions of section 184 of the BIA do not apply to them.
Accordingly, it is incorrect to conclude that they are statutorily prohibited from advising
and/or representing and/or acting as attorneys at law for the Defendant based on the said
section of the Act.

30. The Claimants further contend that the appointment of and the appearance entered by
Romney Thomas/Hobsons as Attorneys-at-law for the Defendant/Respondent is in breach
of the Legal Profession Act (“LPA”). The Claimants submit that the said Act
unqualifiedly prohibits the said attorney from acting for Scotiabank and the Defendant

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 whose interests conflict in law. In response, the Defendant contends that there is no such
conflict of interest and further, there is nothing to suggest that the said attorney/firm has
committed a breach of the LPA as contended.

31. I turn firstly to the provisions of the LPA. The Claimants rely upon provisions contained
in the General Guidelines, Third Schedule, Part A of the Code of Ethics, rule 26 (1)
and (2) and Part B, rules 11(2) and 13(d). The said rule 26(1) and (2) provide as
follows:

“26(1) An Attorney-at-Law may represent multiple clients only if he can adequately

represent the interests of each and if each consents to such representation after full
disclosure of the possible effects of multiple representation.
(2) In all situations where a possible conflict of interest arises, an Attorney-at-Law
shall resolve all conflicts by leaning against multiple representation.”

Rule 11 (2) of Part B of the Mandatory Provisions and Specific Prohibitions provides
as follows:

(2) An Attorney-at-law shall not accept or continue his retainer or employment on

behalf of two or more clients if their interests are likely to conflict or if his independent
professional judgment is likely to be impaired.

Rule 13(d) of Part B of the Mandatory Provisions and Specific Prohibitions provides
that:

“13. An Attorney-at-law shall withdraw forthwith from employment or

from a matter pending before a tribunal—
(d)where his continued employment will involve him in the
violation of the law or a disciplinary rule;”

As Attorney for the Defendant rightly contends, rule 26(1)4 is permissive and not
prohibitive- it allows for an Attorney-at-law to represent multiple clients where certain
conditions are satisfied, those being that he can adequately represent the interest of each
and if each consents to such representation after full disclosure. Rule 26(2) states that
where a possible conflict of interest arises an Attorney-at-law shall resolve all conflicts
by leaning against multiple representation. Rule 11(2) of Part B provides that an
Attorney-at-law shall not accept or continue his retainer or employment on behalf of two
or more clients if their interests are likely to conflict or if his independent professional
judgment is likely to be impaired. Accordingly, the issue to be resolved is whether there

4
Of Part A of Code of Ethics

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 exists a possible conflict of interest and if Mr. Thomas’/Hobsons’ judgment is likely to be
impaired.

32. Counsel for the Claimants submits that there is a clear and obvious conflict between the
interests of the Defendant/Respondent and Scotiabank. Counsel for the Claimants
contend that this obvious conflict is highlighted in the fact that any proposed trustee (the
Defendant/Respondent) and the secured creditor/mortgagee/debenture holder
(Scotiabank) have different obligations, responsibilities, duties, liabilities and rights
under the BIA and other applicable law. They also rely upon the cases of Edenwest Ltd.
v. CMS Cameron McKenna (a firm) [2012] EWCH 1258 and Hilton (Appellant) v.
Barker Booth and Eastwood (a firm) (Respondents) [2005] UKHL 8 in support of
their contention regarding the conflict of interest.

33. Counsel for the Defendant contends that the Claimants’ argument regarding conflict of
interest is baseless. He contends that neither the cases nor legislation relied upon by the
Claimants assists them as they are either misapplied or irrelevant: they do not deal with
the facts in this case. Attorney for the Defendant submits that there is no evidence that the
interests of the Defendant and Scotiabank are likely to conflict. To the contrary, the
Defendant is the agent of Scotiabank. He further submits that in the absence of evidence
to the contrary, the presumption must surely be that the interests of the agent are aligned
to the interests of his principal as indeed, an agent owes a duty to act in his principal’s
best interest.

34. Paget’s Law of Banking 14th ed. at Chapter 20 addresses the powers and duties of a
receiver. Therein, it is stated that “where a bank has a debenture, its appointment of a
receiver almost invariably provides that he shall be the agent of the company”.
However, it is further stated therein that “the relationship between the company and the
receiver is not the relationship of an ordinary principal and agent because the receiver
also owes duties to the debenture holder.

35. The nature of the relationship was described in Silven Properties Ltd. v. Royal Bank of
Scotland plc [2004] 4 All ER 484 in the following terms:

'The peculiar incidents of the agency are significant. In particular: (1) the agency is
one where the principal, the mortgagor, has no say in the appointment or identity of
the receiver and is not entitled to give any instructions to the receiver or to dismiss the
receiver. In the words of Rigby LJ in Gaskell v Gosling [1896] 1 QB 669 at 692: “For
valuable consideration he has committed the management of his property to an
attorney whose appointment he cannot interfere with”; (2) there is no contractual
relationship or duty owed in tort by the receiver to the mortgagor: the relationship and

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 duties owed by the receiver are equitable only: see Medforth and Raja; (3) the equitable
duty is owed to the mortgagee as well as the mortgagor. The relationship created by the
mortgage is tripartite involving the mortgagor, the mortgagee and the receiver; (4) the
duty owed by the receiver (like the duty owed by a mortgagee) to the mortgagor is not
owed to him individually but to him as one of the persons interested in the equity of
redemption. The class character of the right is reflected in the class character of the
relief to be granted in case of a breach of this duty. That relief is an order that the
receiver account to the persons interested in the equity of redemption for what he
would have held as receiver but for his default; (5) not merely does the receiver owe a
duty of care to the mortgagee as well as the mortgagor, but his primary duty in
exercising his powers of management is to try and bring about a situation in which the
secured debt is repaid: see Medforth at p86; and (6) the receiver is not managing the
mortgagor's property for the benefit of the mortgagor, but the security, the property of
the mortgagee, for the benefit of the mortgagee: see Re B Johnson & Co (Builders) Ltd
[1953] Ch 634 per Jenkins LJ at 661 cited with approval by Lord Templeman in
Downsview at 331B and at p 646 per Evershed MR cited with approval by Scott V-C in
Medforth at p 95H to 96A. His powers of management are really ancillary to that duty:
Gomba Holdings v Homan [1986] 1 WLR 1301 at 1305 per Hoffmann J.'

36. Accordingly, as may be seen from the above, duties are owed by the receiver to both the
company (3G Technologies) and Scotiabank. Returning to the instant matter, while it
may appear that the receiver is operating independently, the reality is that he would likely
be obtaining legal advice from his Attorney, Mr. Romney Thomas, who is the same
Attorney acting for Scotiabank that is in turn, purportedly seeking to exercise its powers
against the assets of the company. In the circumstances, it may be said that the
possibility for a conflict of interests is indeed inherent and the suspicion is accordingly
raised that it might be difficult for Mr. Thomas to advise the Receiver impartially in
circumstances where he acts for the very creditor.

37. Accordingly, this Court is of the view that given the possible conflict of interests that
exists between Scotiabank and the First Claimant, both of whom the Receiver owes
duties to, it would have been prudent for Mr. Thomas to refrain from such multiple
representation in the circumstances. Rule 26(2) of the Code of Ethics provides that -

“(2) In all situations where a possible conflict of interest arises, an Attorney-at-Law shall
resolve all conflicts by leaning against multiple representation.”

38. The said rule is broad in that it refers to “all situations where a possible conflict of
interest arises” and accordingly is not limited to parties to an action per se. A possible

Page 14 of 25
 conflict of interest may be said to exist in the present circumstances and accordingly, Mr.
Thomas/Hobsons ought not to represent the Defendant.

39. Rule 11(2) of Part B of the Code of Ethics, which contains the Mandatory Provisions
and Specific Prohibitions, provides that an Attorney-at-law shall not accept or continue
his retainer or employment on behalf of two or more clients if their interests are likely to
conflict or if his independent professional judgment is likely to be impaired. In the
circumstances, by accepting his retainer on behalf of the Defendant while representing
Scotiabank, it may be said that Mr.Thomas /Hobsons is in breach of this rule.

40. In the circumstances, pursuant to its powers under Part 26.1(1)(w) of the CPR5, this
Court is of the view that an order prohibiting Mr. Thomas/Hobsons from further acting
for the Defendant in this matter is appropriate and that a further order ought to be made
affording the Defendant the opportunity to secure alternative representation in this matter.

41. I note that in relation to Mr. Romney Thomas/Hobsons acting for the Defendant and
Scotiabank, the Claimants also seek to prohibit Mr. Thomas/Hobsons from acting
pursuant to Part 26.1(1)(t) of the CPR.

42. By way of Part 26.1(1)(t) of the CPR, the Court has the power, where two or more
parties to the proceedings are represented by the same attorney, to direct that they be
separately represented and if necessary, adjourn any hearing to a fixed date to enable
separate representation to be arranged. Accordingly, a perquisite for the exercise of the
Court’s powers under Rule 26.1(1)(t) is that there be two or more parties to the
proceedings that are represented by the same attorney. [Emphasis mine]. The Claimants’
objection is to Mr. Romney Thomas/Hobsons representing both the Defendant and
Scotiabank. However, of the two, it is only the Defendant, Mr. Rudranand Maharaj, and
not Scotiabank, who is a party to these proceedings. The only parties to these proceedings
are the Claimants who are represented by Mr. Odai Ramishcand, Mr. Riaz Seecharan and
Mr. Stephan Mungalsingh and the Defendant, who is represented by Mr. Thomas of
Hobsons. Accordingly, the parties to these proceedings do not share the same attorney
and consequently, there is no basis for the Court’s exercise of its powers under rule
26.1(1)(t) of the CPR.

5
Part 26.1(1)(w) of the CPR gives the Court the power to “take any other step, give any other direction or make
any other order for the purpose of managing the case and furthering the overriding objective.”

Page 15 of 25
 (iii) What is the nature of the relief sought by the Claimants at (2)-(5) of the stated
relief sought in their Notice of Application of the 1st October, 2014 and whether
such relief is permissible at this stage of the proceedings?

43. At (2)-(5) of their Notice of Application6, the Claimants seek the following forms of
relief:

(2) An Order that Mr. Rudranand Maharaj, the Defendant/Respondent is not a licensed
trustee under the Bankruptcy and Insolvency Act 2007 and that the Bankruptcy
and Insolvency Act 2007 statutorily prohibits the Defendant/Respondent from acting
as a receiver of the First Claimant and/or obtaining the income of the property of the
Second and Third Claimants/Applicants situate at 112-114 Duke Street, Port-of-
Spain.

(3) An Order that the document filed by the Defendant at the Companies Registry
purporting to appoint himself as receiver of the First Claimant is null and void and of
no effect and that the said document be struck out and removed forthwith from the
Companies Registry.

(4) In Injunction restraining and/or prohibiting the Defendant/Respondent, his servants

and/or agents from acting as receiver in any way whatsoever of the First Claimant
and/or the Defendant’s/Respondent’s agents of the property of the Second and Third
Claimants/Applicants situate at 112-114 Duke Street, Port-of-Spain.

(5) An injunction restraining the Defendant/Respondent, his servants and/or agents from
disposing of the income of the First Claimant received and to deliver up to the
Claimants all monies of the First Claimant obtained by him and/or his agents.

44. In the said Notice of Application, the Claimants indicate that they seek the injunction
against the Defendant pursuant to Part 17.1(1)(a) of the CPR. Part 17.1(1)(a) of the
CPR provides that the Court may grant interim remedies including an interim injunction.

45. Counsel for the Defendant submits that the relief sought by the Claimants is in the nature
of final relief and that same is not permissible at this interlocutory stage.

46. I note that the relief sought by the Claimant at (2)-(5) of the Notice of Application in
essence mirror the final relief claimed in their Amended Claim Form. Relief (3) sought
in the Notice of Application is contained in relief (1) sought in the Amended Claim Form

6
Pages 1-2 thereof

Page 16 of 25
 and relief (4) and (5) of the Notice of Application seek essentially the same relief
contained in relief (6) and (7) set out in the Amended Claim Form. As indicated by Mr.
Garcia, the reliefs sought by the Claimants in their Notice of Application are couched in
terms of final relief, and not interim. There are no words or so forth indicating that what
is intended is interlocutory relief. I am of the view that despite their oral protestation to
the contrary, what is in substance being sought by the Claimants is final relief under the
guise of an interlocutory application and this cannot be permitted at this stage of the
proceedings. To award final relief would necessarily involve arriving at final findings of
fact in favour of the Claimant in circumstances where no Defence has been filed, no
evidence has been put forth by the Defendant to support his case and where the
Claimants’ evidence has not yet been subjected to the rigors of cross-examination testing.
The CPR mandate that the Court have regard to the overriding objective which entails
dealing with cases justly. Such an approach certainly would not meet the justice of the
case and cannot be countenanced.

47. In their written submissions filed on the 17th October, 2014, I note that in support of their
contention that the relief sought by them in their Notice of Application is in the nature of
interim relief, they rely upon an extract from the 2010 White Book. This Court notes that
at the last hearing of the matter Counsel for the Claimants made no reference to this
authority and the Order of the 8th October, 2014 simply directed the Claimants to file and
serve copies of authorities referred to during the application, together with a note stating
what the authority was relied on for. Provision was made for such filing because Counsel
for the Claimants referred to certain authorities but did not have copies for the Court or
the other side. It appears that they have craftily gone beyond the confines of the said
order to “flesh out” their submissions and the Court frowns upon such stealth. That being
said, this Court is of the view that in any event, the extract referred to advances their case
no further as it must be taken in context.

48. The said extract at paragraph 25.1.8. of the 2010 White Book states as follows:

“Interim remedies are of two broad varieties. First there are those which are temporary
versions of final remedies. In the interests of fairness and justice they are granted
pending trial e.g. a claimant issues a claim for an injunction and is granted a temporary
injunction to the same or similar effect.” [Emphasis mine]

Firstly there is nothing in the Claimants’ Application which alludes to the fact that
remedies being sought therein are temporary versions of final remedies. Further, in any
event, the power to grant interim remedies is discretionary and the Court in exercising its
discretion must necessarily have regard to the overriding objective of the CPR which
requires it to treat with cases justly. This Court is of the view that justice will not be met

Page 17 of 25
 by allowing a remedy which is of the same effect as a final remedy in circumstances
where the Defendant has not even had the opportunity to file a Defence to the Claim. The
Order of this Court of the 8th October, 2014 clearly stated that the Defendant was to hold
his hand on the filing of a Defence pending the outcome of this Application.

49. In the case of Wayne Kublalsingh and Others v. The Attorney General CV2012-
03205, Narine J.A. stated that it is not permissible for the trial judge to make or appear to
arrive at final findings at the interlocutory stage. The learned judge went on to state that-

“Not having embarked on a full hearing of the substantive issues in the cases involving
possible cross-examination, a close analysis of the evidence and the full assistance of
counsel on both sides with respect to the evidence and the relevant law, it is quite
wrong for a trial judge to make final findings at the interlocutory stage.”

50. In the circumstances, I am of the view that this Court cannot grant the reliefs sought at
(2)-(5) of the Notice of Application, since to do so would in effect amount to the granting
of final relief at the interlocutory stage, which is not permissible. Counsel for the
Claimants submitted orally that the intention of the Application was to seek interim relief
and if the Court believes it is final relief that was actually sought, it may alter the relief to
interlocutory relief. Such an approach certainly would not do justice between the parties.
The Claimants’ application in substance seeks final relief: there is nothing to suggest that
what was intended was interlocutory relief, despite Counsel’s assertion. To alter the
relief to interlocutory relief would be manifestly unjust to the Defendant who would have
responded to suit and who, moreover, has not had an opportunity to file his Defence to
the Claim. This is not an error in procedure that can be rectified under CPR Part 26.8
and bearing in mind the overriding objective, the approach as suggested by the Claimants
would not be appropriate. Accordingly, the reliefs sought at (2)-(5) of the Claimants’
Notice of Application are not allowed.

Alleged breaches of the Financial Institutions Act, the Companies Act and the
Conveyancing and Law of Property Act

51. Following on from this, I note that the Claimants contend in their submissions that the
Defendant/Respondent is in breach of the Financial Institutions Act (FIA) since his
purported acceptance of his illegal and invalid appointment he has collected the income
of the First Claimant as a trespasser and that he has not paid same to the secured creditor
in breach of the BIA and FIA and that he will continue to breach the said Acts unless the
injunction is granted. The issues of whether the Claimant’s appointment was in fact
illegal and invalid and that he has not paid monies collected to Scotiabank remain serious
triable issues to be explored at trial. Accordingly, the Court cannot arrive at such final

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 findings of fact at this stage of the proceedings and consequently cannot conclude that the
alleged breaches of the FIA and BIA occurred on those bases as contended by the
Claimants.

52. Similarly, the Claimants submit that the Defendant has refused to produce any evidence
as to the validity of his appointment and in the absence of same he is to be prevented
from so acting forthwith as there is no presumption that his appointment is valid. They
submit that to the contrary, it is presumed that such appointment is not valid but in law
the Defendant/Respondent is a trespasser. Again, I wish to state that the validity of the
Defendant’s appointment is a triable issue. All that was filed by the Defendant prior to
this Application was an Appearance and instructions have not yet been given for the
filing of the Defence. In the circumstances, it is premature to conclude that the Defendant
was a trespasser and that his appointment was invalid.

53. The Claimants have also contended that the Defendant is an unlicensed receiver- another
finding to be made after the evidence of both sides has been put before the Court and
tested. Once again, it is inappropriate for the Court to arrive at any such conclusion at
this stage of the proceedings.

54. The Claimants contend in their submissions of the 17th October, 2014 that the Defendant
has breached the Companies Act. They rely upon section 288 (3)(b) of same which they
contend specifies that the debenture holder (Scotiabank) cannot appoint a receiver if not
more than half is owing under the said debenture which is a condition precedent that the
debenture holder has to fulfill under statute and the appointee has to verify and ensure
before accepting such appointment because if he does not do so, he will be acting ultra
vires the Companies Act. The Claimants contend that this mandatory statutory condition
precedent was not fulfilled so that the debenture holder had no power whatsoever to
appoint any receiver regardless of the terms contained therein. The Claimants contend
that there was not half owing under the said debenture. Whether this was in fact so and
whether the statutory condition referred to above had been fulfilled or not are again facts
to be determined at trial after evidence from both sides has been produced and so it would
be premature for the Court to find that there was any such breach of the Companies Act
as contended at this stage of the proceedings.

55. The Claimants also submit that the Defendant is in breach of sections 265(1) of the
Companies Act and that he is criminally liable under Division 4-Offences and Penalties
of the Companies Act, Section 510. Findings of the breach of the said sections are to be
premised on the evidence put before the Court and tested at trial, since in relation to
section 265 the Claimant asserts that the document registered at the Companies Registry
by the Claimant purporting to be the Registration of Enforcement of Security of 3G

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 Technologies Ltd. is inter alia, erroneous, invalid and amounts to an illegality and section
510 under Division 4 speaks to a report, return notice or other document containing an
untrue statement of a material fact.

56. The Claimants also allege breaches of the “Law and Conveyancing of Property Act”.
There being no such Act in our jurisdiction, it is assumed that this was stated in error and
the intention was to refer to the Conveyancing and Law of Property Act Chap. 56:01.
The Claimants contend that the requirements under section 47 of the Act have not been
met as the power of sale under section 41 had not arisen. In support of their claim that the
mortgagee never became entitled to allegedly exercise the power of sale, the Claimants
allege a number of facts including the fact that the Claimants did not owe any arrears of
interest as falsely stated in the purported appointment letter of the Defendant, that the
performance bond was and has not been accounted for by Scotiabank and that certain
persons made false statements by their agreement to appoint the receiver. All of these
allegations are facts to be proven at trial. The Court cannot accordingly find at this
juncture that these facts are indeed as the Claimants allege, without more and accordingly
cannot find that the asserted breaches have occurred, since this would amount to arriving
at final findings of fact at the interlocutory stage which, as may be seen from the
Kublalsingh case, is not permitted.

(vii) Whether there was undue delay by the Claimants in the filing of their Notice of
Application and whether such delay impacts upon the relief sought?

57. For the reasons stated above, this Court has determined that the reliefs sought by the
Claimant at (2)-(5) of its Notice of Application are not permissible since what are being
sought are final reliefs as opposed to interlocutory relief. Accordingly the issue of delay
insofar as it relates to these grounds of relief is no longer a live one.

58. That being said the Court has ordered that Mr. Thomas/Hobsons be prohibited from
further acting in this matter. Mr. Garcia contends that there has been inordinate delay in
the making of the Application and though his submissions on same revolved around the
date of appointment of the receiver, for the sake of completeness I shall nonetheless
address whether, insofar as the Application seeks orders relating to Mr. Thomas’
/Hobsons’ representation of the Defendant and Scotiabank, there has been inordinate
delay.

59. In the affidavit of Donald Seecharan filed on the 1st October,2014 in support of the
Application, it is stated that “by letter dated 4th November,2013, Romney Thomas,

Page 20 of 25
 Attorney-at-Law acting on behalf of Scotiabank, wrote to the second and third claimants
as the sureties of the loan…”’
Accordingly, by the 4th November, 2013, the Claimants would have been aware that Mr.
Thomas acts for Scotiabank.

60. The Appearance entered on behalf of the Defendant by Mr. Thomas of Hobsons was filed
on the 11th August, 2014. It may thus be said that as of that date, Mr. Thomas acted for
the Defendant while also representing Scotiabank. The Claimants’ Application seeking
relief was filed on the 1st October, 2014- two months after that date. In the circumstances,
I am not of the view that there was inordinate delay on their part.

(viii) Whether the Claimants are entitled to maintain this action?

61. At the hearing of this matter on the 8th October 2014, Mr. Garcia submitted that this
action was brought by the directors of the company and that they had no powers to do so.
According to Mr. Garcia, they could bring a derivative action but must obtain the
permission from the Court, which they have not done. He submitted the correct approach
was to bring an action under section 2407 of the Companies Act.

62. In their filed submissions, Counsel for the Claimants contends that it does not lie in the
mouth of the Defendant to say that the Claimants have no standing to bring this claim. He
submits that the authorities are clear (Kings Beach Hotel Ltd. v. JGL Hotels Ltd. and
Johanna Kesmin Marks No. 995 of 2006 and Newhart Development Ltd. v. Co-
operative Commercial Bank [1978] 2 WLR 636) that the Claimants can bring this
Claim.

63. In turn, Counsel for the Defendant submits that the Claimants rely on Kings Beach for
the proposition that they had a right to instruct counsel to plead and appear in this action
against the Defendant. He submits that crucially, the Claimants omitted to refer to that
part of the judgment that says that they are required to provide security to ensure that
there was no diminution of the assets of the company on the authority of Kings Beach.
According to Counsel for the Defendant, the Claimants have given no such security and
as such are not entitled to maintain their action against the Defendant unless and until
such security has been provided.

64. I note that at the hearing of this matter on the 8th October, 2014, Mr. Garcia stated that for
the Claimants to bring the action, they would have to bring a derivative action under
section 240 of the Companies Act, Chap.81:01. Section 240(1) provides that-

7
Of the Companies Act

Page 21 of 25
 “Subject to subsection (2) a complainant may for the purposes of prosecuting…an action
on behalf of a company, apply to the Court for leave to bring an action in the name of
and on behalf of the company….”

Section240 (2) provides that-

“no action may be brought, and no intervention in any action may be made under
subsection (1) unless the Court is satisfied-
(a) that the complainant has given reasonable notice to the directors of the company or
its subsidiary of his intention to apply to the Court under subsection (1) if the directors of
the company or its subsidiary do not bring, diligently prosecute or defend, or discontinue,
the action;
(b) that the complainant is acting in good faith; and
(c) that it appears to be in the interests of the company or its subsidiary that the action be
brought, prosecuted, defended or discontinued.

65. The very wording of section 240(2) suggests that section 240(1) does not contemplate a
“complainant” being a director of the company as section 240(2)(a) speaks to the Court
being satisfied that the complainant has given reasonable notice to the directors of the
company of his intention to apply to the Court where the directors have not taken action.
This to me suggests that it is not necessary for the directors of the company to approach
the Court on behalf of the company by way of a derivative action.

66. The Claimants rely upon the Barbadian case of Kings Beach and the Newhart case to
support their contention that they are entitled to maintain this action. I turn now to a
consideration of same. In Kings Beach the issue before the Court was whether the
directors of Kings Beach had the right to instruct Counsel to plead and appear in that
action. Blackman J. stated that it seems clear upon review of the authorities that there is a
residual power vested in a Board to institute and maintain law suits on behalf of the
company, after the company has been placed in receivership, subject to the provision of
security to ensure that there is no diminution of the assets of the company8.
8
It is noted that in arriving at this conclusion the Court would have taken into account Counsel for the First
Plaintiff’s reference to section 278 of the Companies Act Cap. 308 of the Laws of Barbados which contains the
same provisions as section 292 of the Companies Act of Trinidad and Tobago Chap.81:01. Both provide that “when
a receiver-manager is appointed by the Court or under an instrument, the powers of the directors of the company
that the receiver-manager is authorized to exercise may not be exercised by the directors until the receiver is
discharged”. In any event it is noted that a distinction is drawn in sections 290 and 291 of the TT Companies Act
Chap. 81:01 between a receiver and a receiver-manager- the former may not carry on the business of the company
while the latter may do so. The prohibition contained in section 292 pertains to a receiver-manager.

Page 22 of 25
67. Blackman J. held that the directors of Kings Beach had a right to instruct Counsel and to
maintain that action and related proceedings. He further held that the directors were
required to post a bond in the sum of $100,000 as security for costs before any further
steps were taken in the proceedings, such bond to be provided by an approved financial
institution licensed to do business in Barbados.

68. In the Barbadian Court of Appeal case of Winifred Enterprises Limited v. Barbados
Development Bank (1990) 25 Barb. L.R. 78 the Court of Appeal affirmed the right of
directors of a company in receivership to bring an action without the consent of the
receiver-manager as long as the company is indemnified against any liability for costs. In
arriving at its decision, the Court noted the dicta of Street J. in the Supreme Court of New
South Wales case of Hawkesbury Development Co. Ltd. v. Landmark Finance Pty
and Co. Ltd (1969) 92 W.N. (N.S.W.) 199. Street J. stated that-

"If the case is well founded, then the directors undoubtedly have the capacity and
power to bring it in the name of Landmark Finance. But even if the attack on the
debentures is not well founded, and ultimately fails, I am still of the view that the
directors of Landmark Finance have the capacity, notwithstanding the apparently all
embracing terms of the debenture and the appointment of the receiver and manager, to
cause proceedings to be instituted in the Company's name challenging the debenture.
It would be strange to contemplate a debenture, or, for that matter any other
engagement, being permitted to stand on such a high plane as to be immune from
challenge by the party entering it. If it be necessary to go so far, I would hold that a
floating charge purporting to extend, as does the present, to the whole of the assets and
undertaking of a Company, does not upon the appointment of a receiver and manager
thereunder, extend to fettering the capacity or power of the directors of the Company to
cause proceedings to be instituted in the name of the Company challenging that
debenture. Both principle and common sense provide substantial support for this
proposition. Its validity is perhaps well demonstrated by postulating a (end of page 3)
situation in which a debenture is invalid, and inquiring by whom the proceedings to
challenge it are to be instituted. It borders on the absurd to contemplate the receiver
and manager having the power to institute proceedings in the name of the Company,
challenging the very debenture to which he owes his office, and if the power does not
reside in him to use the Company's name to challenge it, it would seem that it must
remain with those who control whatever residual aspects of the Company's affairs are
not caught by the debenture; that is to say, it must remain with the directors."

Page 23 of 25
 69. In the English Court of Appeal case of Newhart Developments Limited v.
Co-operative Commercial Bank Limited [1978] 2 All ER 896 it was held that the
powers given by the debenture to the receiver were enabling provisions so that he could
realize the company’s assets and carry on business for the benefit of the debenture-
holders and did not divest the directors of the company of their power to pursue right of
action if it was in the company’s interest and it did not impinge prejudicially on the
debenture holders qua debenture holders by threatening or imperiling the assets which
were the subject of the charge.9

70. In light of the aforementioned cases, I find that the Claimants, as directors of 3G
Technologies Ltd. have the power to maintain this action on behalf of the company even
though a receiver-manager has been appointed, subject to their providing an indemnity
against any liability for costs. Counsel for the Defendant submits that the Claimants have
provided no security to ensure that there was no diminution of the assets of the company
and that they are therefore not entitled to maintain this action unless and until security has
been provided. I am of the view that the most appropriate course for this Court to adopt
would be one adopted by Blackman J. in Kings Beach. Accordingly, this Court is of the
view that the Second and Third Claimants shall be required to post a bond jointly in the
sum of $150,000.00 as security for costs before any further steps are taken in these
proceedings.

Costs

71. On the issue of costs of this application, I note that though the Claimants have been
successful in pursuing relief (1) in the Notice of Application filed on the 1 st October,
2014, they have been substantially unsuccessful overall, reliefs (2)-(5) sought in the said
Application having been denied. The Defendant, therefore, is largely the successful
party. It is therefore this Court’s view that it would be fair in all the circumstances of this
case for the Claimants to bear 60% of the Defendant’s costs of defending the said Notice
of Application to be assessed in default of agreement.

72. Consequently, in light of all of the foregoing analyses and findings, this Court orders as
follows:

9
In Tudor Grange Holdings Ltd & Others v. Citibank NA [1991] 4 All ER, the Court indicated that the decision may
need to be revisited in the future. It is to be noted that Tudor is a Chancery Division case and not a Court of Appeal
decision and it does not appear that Newhart has been overruled.

Page 24 of 25
 ORDER:

(1) There is a possible conflict of interest in Mr. Romney Thomas/Hobsons advising

and/or representing and/or acting as Attorney(s)-at-law for the Defendant while
at the same time advising and/or representing ScotiaBank. In the circumstances,
Mr. Romney Thomas/Hobsons is statutorily prohibited by rule 11(2) of Part B of
the Code of Ethics, Third Schedule, Legal Profession Act, Chap. 90:03 from
representing the Defendant and/or acting for the Defendant in this matter.

(2) The reliefs sought by the Claimants at (2)-(5) of their Notice of Application of the
1st October 2014, in reality, constitute final reliefs and as such, the Court cannot
grant same at this stage of the proceedings. Accordingly, reliefs (2)-(5) be and
are hereby denied.

(3) The Second and Third Claimants, as directors of the First Claimant, are entitled
to maintain this action subject to their indemnifying the First Claimant against
any liability for costs. Accordingly, the Second and Third Claimants are
required to post a bond jointly in the sum of $150,000.00 as security for costs
before any further steps are taken in these proceedings, such bond to be
provided by an approved financial institution licensed to do business in Trinidad
and Tobago. The said bond is to be submitted to the Registrar of the Supreme
Court.

(4) In light of the Court’s order at (1) above, the Defendant shall obtain fresh legal
representation other than Mr. Romney Thomas/Hobsons and shall file and serve
his defence within 14 days after being notified in writing by the Claimants’
Attorney-at-law that clause (3) of this order has been satisfied.

(5) The Claimants shall pay to the Defendant 60% of his costs of defending the said
Notice of Application to be assessed in accordance with CPR Part 67.11 in
default of agreement.

Dated this 25th day of June, 2015

___________________
Robin N. Mohammed
Judge

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