NASSAU, BAHAMAS — The Court of Appeal has affirmed a Supreme Court decision relative to a judgement in the sum of $1.35 million and subsequent bankruptcy petitions against former trustees of the Bahamas Communications and Public Officers Union (BCPOU) Pension Plan and Trust Fund.
The former trustees, including now National Congress of Trade Unions (NCTU) president Bernard Evans, had appealed a lawsuit brought against them by Avril Clarke, Andrea Culmer, and Steve Hepburn to recover monies “negligently disbursed in breach the Trust Fund’s rules and in breach of the appellants’ fiduciary and other duties owed to the Trust Fund”.
The Court of Appeal decision delivered by Justice Stella Maureen Crane-Scott on Friday dismissed the appeals of Evans, Colin Wright, Ray Nairn and Shawn Bowe.
The court stated: “It is certainly possible for a trustee to sue a former trustee to recover trust assets which have been squandered by the former trustees in breach of their fiduciary obligations.”
The $1.35 million sum, according to court records, was disbursed via two unauthorized loans made to the Kendal Williams Construction Company Limited.
A final judgment in the sum of $1,350,000 made pursuant to a consent order by then Chief Justice Michael Barnett was entered against the appellants back on October 15, 2014 with interest and costs.
The respondent/judgment creditor initiated bankruptcy proceedings against all four appellants/judgment debtors.
“It is undisputed that following the entry of the Final Judgment, neither the Consent Order nor the Final Judgment has ever been appealed to this Court and accordingly, they remain in full force and effect to this day,” the appellate court justice noted.
According to the court it was not until 2016 when the respondents applied for examination or determination of what assets are available to satisfy the judgment debt of Evans, Nairn, Bowe and Wright that they commenced legal action.
“Meanwhile, on 24 April 2017, the respondent/judgment creditor initiated bankruptcy proceedings against each of the appellant/judgment debtors. The four Bankruptcy Petitions were filed approximately two years and six months following entry of the Final Judgment and just over one year after the filing of the pending strike-out Summons which even at that date remained unheard,” the court noted.
Wright’s bankruptcy petition came up for hearing first and the judge, Justice Indra Charles granted the Adjudication Order. Wright unsuccessfully sought an injunction to restrain publication of the Gazette advertisement which was to be issued in accordance with the Bankruptcy Act and a stay of the bankruptcy proceedings pending the hearing and determination of the strike-out summons. The Court of Appeal has affirmed the judge’s decision to refuse the injunction and stay.
Counsel for Evans, Nairn and Bowe unsuccessfully sought to have Justice Charles recuse herself from hearing their bankruptcy petitions, claiming ‘bias by predetermination’ due to her decision in Wright’s case. The Court of Appeal ultimately found no merits in this argument nor several others grounds asserting that the judge erred and affirmed the Adjudication Orders.
“Costs of the Evans, Nairn and Bowe appeals are awarded to the respondent to be taxed, if not agreed,” the appellate court ruled.