ISLAND GLOBAL YACHTING VS. POOLE CAPITAL S.A. – MORE ON THE SAGA OF GRENADA’S PROPERTY DISPUTES

by Bajan Reporter / March 10th, 2010

CAVEAT

Once again here is a fiery epistle from Sandra Ferguson concerning Lagoon Park and its Dramatis Personae, these views expressed are not exactly a mirror of the philosophy of The Bajan Reporter – this is merely an opportunity to allow a Caribbean neighbour to rant and deliver objections for circumstances she believes should be different;-

That obsure group of “developers”, Poole Capital, seemed to have simply faded into oblivion in early 2006. Following the erection of “No trespassing signs” along the Lagoon Road in late 2005, advising of dire consequences to violators of the interdiction, and a short-lived tussle for the Lagoon between Poole Capital and Zublin Grenada ( remember the fabulous Zublin vs. Poole Capital piece which aired on the Sundays with George Grant programme of March 19th, 2006, urging listeners to get involved in the decision-making and to “Choose Zublin”), we the people did not hear from Poole Capital or about Poole Capital. What we the people did not know at the time was that the PEOPLE’S PROPERTY was at the centre of a suit brought against Poole Capital S.A (defendants) by a company called Island Global Yachting (Plaintiff) which made the following allegations against Poole Capital S.A.:

· Fraud and misrepresentations
· Breach of contract
· Improperly trading on the name and reputation of plaintiff and its confidential information

On or about March 14th, 2006, Island Global Yachting Ltd. commenced civil action against defendants, Poole Capital S.A., Andrew J. Baker, Peter Doran and Brian R.M. Pearce (whom we the people know as BRU PEARCE) in the Supreme Court of the State of New York, County of New York, Index No. 600881-2006. Plaintiff, Island Global Yachting Ltd., took action against the defendants for fraud, breach of confidentiality agreement and breach of an exclusivity agreement.

1. Complaint:
The Complaint filed by plaintiff, Island Global Yachting, provided the following information:

· Island Global Yachting Ltd. was a Cayman Islands exempted company with an office in New York City. It engaged in among, other things, the acquisition, management and development of marina facilities and related properties throughout the world.
(One should note that, internationally, IGY was/is a competitor of Camper and Nicholson Marinas. These two companies were/are developers of marina facilities internationally).
· Poole Capital S.A. was a British Virgin Islands entity holding rights to acquire and lease real property, suitable for marina development on the island of Grenada.
· “Individual defendants”, Andrew J. Baker, Peter Doran and Brian R.M. Pearce were officers, directors or agents of Poole Capital. Mr. Brian Pearce was named as a citizen of LEICHENSTEIN.

(It is useful to recall that the postal address of Poole Capital S.A. on its application to the Land Development Control Authority for planning permission was given as Leichenstein).

On or about December 19th and 20th, 2005, the individual defendants held meetings in New York City with representatives of IGY with respect to a proposed development project in Grenada. The defendants ,i.e. the agents of Poole Capital S.A., represented the following:
(i) Poole was a party to the Port George Project Agreement (PGPA) with the Government of Grenada, pursuant to which Poole had the right to acquire and lease various properties from the Government of Grenada on terms and conditions set forth in the agreement.

( We the people should recall that the Port George Project Agreement was signed in September 2002 and it was amended by Addendum of September 16th, 2005. So the meetings with Island Global Yachting would have taken place after the amendment to the agreement.)
(ii) The properties included both upland properties and submerged lands suitable for marina development.
(iii) Poole and the individual defendants had long standing and credible relationships with the Government of Grenada such that obtaining of permits for infrastructure development, entitlements and the performance of the Government’s obligations would be achieved expeditiously.
· The representations concerning the local expertise of the defendants and their ability to successfully navigate through the governmental processes of developing a complex marina facility were critical to IGY’s analysis of the defendants’ proposal
· Between December 19th, 2005 and January 23rd, 2006, the parties negotiated a written letter of intent which was executed on or about January 23rd, 2006. Poole Capital would contribute its interest in the Port George Project Agreement to a joint venture with IGY. In turn IGY would contribute equity which would go towards payments for various properties and for satisfying the other obligations of Poole and the new joint venture would develop the property as a mixed use marina property.
· Although the terms of the Letter of Intent were non-binding, two provisions were expressly binding on the parties:
(i) The parties agreed that through February 23rd, 2006, IGY would have the exclusive right to acquire the real property contemplated by the PGPA, with Poole through a joint venture and Poole would not initiate, solicit, negotiate, accept or respond to any other proposal in respect of those assets.
(ii) the parties agreed that all information shared by IGY with Poole would be maintained in confidence, used solely for the purposes of effecting the transaction contemplated by the Letter of Intent (LOI) and not used for any other purpose.
· Following the entry into the Letter of Intent, IGY expended significant money and time on due diligence in respect of the properties, agreements and other actions to facilitate the proposed transactions.

(It is interesting to note that a company called Applied Technology Management Inc., which is/was one of IGY’s wholly owned subsidiaries (which provides environmental and engineering consulting services in the area of marina and waterfront development) has listed Port George, Grenada as being among its Caribbean projects and experience)
· The LOI exclusivity was extended to March 3rd, 2006 and further to April 1st, 2006.
· On March 10th, 2006, a Principal of IGY met with the (then) Prime Minister of Grenada to discuss the proposed transaction. IGY learned that the relationship between and among the Government of Grenada, Poole Capital and the individual defendants was poor. The Government did not regard Poole Capital or the individual defendants as credible or capable and would prefer not to do business with them and would not extend the March 15th , 2006 deadline that Poole had to complete the transaction.
· On or about March 10th, IGY communicated the Government’s position to Poole Capital. On or about March 10th, via an e-mail from its counsel, Poole Capital unilaterally withdrew its extension of the exclusivity period up to April 1st.
· The parties sought to come up with a way forward to meet the March 15th deadline. The parties agreed that the only that this could occur was for IGY to take assignment of the PGPA, close with the government and thereafter finalize the terms of the joint venture with Poole.
· On March 13th, 2006, Poole advised IGY that it no longer wished to proceed as previously agreed, stating that “we will acquire the (Grenada) site ourselves”.

Misrepresentation of the Nature of Relationship with Government of Grenada:
Plaintiff, IGY, contended that at the time the defendants came to New York to discuss a proposed transaction with the plaintiff, the defendants materially misrepresented the nature of their relationship with the Government of Grenada – that they were well liked by the Government and perceived as a developer with whom the Government could collaborate. They did not disclose that their relationship had deteriorated and that they were perceived as lacking credibility.
· Plaintiff contended that these representations were material to any decision made by plaintiff to proceed and that the representations were materially false.
· It was on the basis of these representations that plaintiff negotiated and executed a Letter of Intent, expended incalculable man hours and monies for expenses in the hundreds of thousands of dollars.

Withdrawal from Extension of Exclusivity Provisions:
· Plaintiff, IGY contended that the Poole’s decision to withdraw from the extension breached the exclusivity provisions of the Letter of Intent, was wrongful and intended to cause harm to the plaintiff.
· Plaintiff also contended that the defendants were in breach of contract and as a result of this breach, plaintiff would suffer material damage.

Use of the Plaintiff’s Confidential and Proprietary Information:
· Throughout the period from December 19th, 2005 to March 13th, 2006, the defendants had represented to Island Global Yachting that they did not have the financial wherewithal to acquire the properties under the Port George Project Agreement and need an equity source (such as Island Global Yachting).
· Throughout the period of the execution of the Letter of Intent (on or about from January 23rd, 2006 until March 13th, 2006), Plaintiff (i.e. Island Global Yachting), shared material confidential information with the defendants including:
(i) financial information on economic feasibility
(ii) development concepts
(iii) other unique information created and developed by plaintiff
· Plaintiff contended that in order to obtain the financing necessary to close the PGPA on March 15th, 2006, defendants had to share plaintiff’s confidential and proprietary information and/or the proposed transaction with plaintiff with OTHER potential investors.
· Plaintiff contended that without the use of plaintiff’s information and name defendants would likely not have found other sources of equity and would have defaulted on the PGPA.

2. Letter Rogatory:
· By Ex Parte Order of May 26th, 2006, the Supreme Court of the State of New York the court upheld the application made by plaintiff, Island Global Yachting, for the issuance of a Letter Rogatory for judicial assistance in serving process upon Andrew J. Baker in the Principality of Leichtenstein.

3. Notice of Removal:
The case was removed to the United Sates District Court for the Southern District of New York. By order of Justice Victor Marrero of June 23rd, 2006, the case was remanded out of the Southern District of New York to the Supreme Court of the State of New York, New York County ( from whence it was removed it the first place).

4. Settlement:
Citizens in Defence of Grenada’s Lands and Heritage understands that the case was settled (in 2006 ?) but we are unaware of the specifics of the settlement. Is it possible that the settlement of this case may very well have had significant bearing on:

(i) the ”deed of release” arrangements that were reached between Poole Capital S.A., Poole Capital Grenada and the Government of Grenada in respect of the Port George Development
(ii) the subsequent announcement by the Government of Grenada in October 2006 that the Port George Development was to be taken over by Peter De Savary and would become the Port Louis development.

It is unclear whether the current National Democratic Congress administration is aware of the legal action that was brought against the developer, Poole Capital S.A., by Island Global Yachting re the Port George development. Up to the present time, the administration has not disclosed to we the people any of the findings of the Task Force that it set up in 2008 to review all of a number of contentious agreements into which the previous administration entered into with foreign developers/speculators.

Points to Ponder:
· How did this developer, Poole Capital S.A., arrive in Grenada?
· Was the developer, Poole Capital S.A., attracted to/interested in Grenada as a result of the former Prime Minister’s investment trip which took him to Leichenstein? We the people remember Leichenstein as being on the itinerary of that infamous INVESTMENT trip of then Prime Minister, Rt. Hon. Dr. Keith Mitchell – when he detoured to St. Moritz, Switzerland – to collect “his damn money” (from Eric Resteiner) he proclaimed to we the people at his party’s World Cup Thanksgiving Rally at Progress Park in May 2007.

· Why did the agents of Poole Capital S.A. hold meetings with representatives of Island Global Yachting in December 2005? After all, in September 2002 the Government of Grenada had entered into arrangements with Poole Capital S.A. and Camper and Nicholsons for the Port George development.

(Ref. The Caribbean Compass – Online, issue no. 148 of January 2008, page 9 -http://www.caribbeancompass.com/online/januarycompass_online.pdf)

See article and accompanying photo – Grenada’s Port Louis Acquired by CNMI. The photo notes – “What goes around….In this 2002 photo the Grenada government signed a marina agreement with Camper & Nicholsons who have now bought Port Louis marina”).

ANOTHER CONFIRMATION of Camper and Nicholson Marinas interest/involvement with Port George development is also noted in a Share Offer presentation dated January 2007, by the Grand Harbour Marina – (which was managed by Camper and Nicholsons Marinas). On page 7, Port George is listed among the international projects in which Camper and Nicholson Marinas was involved.
· Did Camper and Nicholsons have a representative in Grenada charged with responsibility for the development the Port George project?

It is useful to remember that the design work for the Port George Development seems to have been done by one Simon Arrol of Camper and Nicholson Marinas International. This information is obtained from the Arrol Consultancy brochure, page 10 (ref.www.arrol.com), which lists Mr. Arrol’s project experience. Under the category “Urban Waterfront Regeneration” is the following: – “marina design and contract negotiation for the Port Louis (previously Port George) project on the previously Islander Hotel and GYS sites in Grenada, British West Indies”. Also appearing on page 14 in the Arrol Consultancy brochure is a copyright image reminiscent of the plan of the Port Louis development. The image is copyrighted and is acknowledged as belonging to Poole Capital S.A.
· According to Mr. Arrol’s profile, he was Managing Director of Camper and Nicholsons Marinas International from 1998-2004 and was Director of Development and Operations of Island Global Yachting (Dubai) from 2005-2007.
· Was it a coincidence that Poole Capital also sought assistance from Island Global Yachting for the Port George Development on or around the time (late December 2005 and mid-March 2006) that Mr. Arrol was already associated with Island Global Yachting?
· Was it merely co-incidence that Camper and Nicholsons Marina Investments, CNMI, which acquired the Port Louis marina from Port Louis in December 2007 also acquired the shares of Mr. Arrol and other shareholders in Grand Harbour Marina in Malta?

It should be noted that Mr. Arrol was a significant shareholder in Grand Harbour Marina ( its Chairman and Chief Executive Officer was Mr. Nick Maris) when 50 percent of its shares was acquired by Camper and Nicholson Marina Investments in April 2007. CNMI was also granted the right to acquire a further 20 percent of the shares from Nick Maris and Simon Arrol. CNMI is now a 79 percent shareholder of Grand Harbour Marina.
· Who were the representatives of Island Global Yachting who met with Prime Minister Mitchell?
· Who were the representatives of Island Global Yachting with whom the representatives of Poole Capital S.A. met?
· How is it that Poole Capital S.A., at the last minute, was able to tell Island Global Yachting that “we will acquire the marina ourselves”?
· Who was counsel for Poole Capital S.A. which communicated that message ? Was counsel based in Grenada, in England or in the BVI?
· When was the settlement arrived at? Did the settlement take place before the October 2006 “Deed of Release” arrangements between Poole Capital S.A., Poole Capital S.A. Limited and the Government of Grenada?

We the People Want Answers:
The saga of the people’s property continues to INTRIGUE. We want to know the details of the settlement that was reached in 2006(?) between Island Global Yachting and Poole Capital S.A. What were the implications of that settlement for the PEOPLE’S PROPERTY? Were there post-settlement developments in respect of this settlement and what were these developments?

Our government of change promised we the people accountability and transparency!! Does our government know about this suit? How was it that two companies registered in off shore jurisdictions could have been disputing rights to acquire the PEOPLE’S PROPERTY in a United States court? We want answers!