Noesis Consulting Ltd v Saturn Solar Developments Ltd

• Jurisdiction: Bermuda
• Judgment Date: 05 July 2021
• Docket Number: Commercial Jurisdiction 2020 No 132
• Court: Supreme Court (Bermuda)

[2021] Bda LR 57

In The Supreme Court of Bermuda

Commercial Jurisdiction 2020 No 132

Between:

Noesis Consulting Limited

Plaintiff

and

Saturn Solar Developments Ltd

Defendant

Mr J Durham for the Plaintiff

Mr K Taylor for the Defendant

The following cases were referred to in the judgment:

O'Mahony v Horgan [1995] IESC 6

Locabail International Finance Ltd v Manos [1988] Bda LR 26

DeGroote v MacMillan [1991] Bda LR 27

American Patriot Insurance v Mutual Holdings [2012] Bda LR 23

Ex parte Mareva injunction — Agreement to discharge injunction — Indemnity costs

RULING of Mussenden J

Introduction

1. This matter first came before me by the Plaintiff's Ex Parte Summons dated 15 June 2021 in respect of an application for an order for a Mareva injunction against the Defendant in respect of its assets. The application for the injunction was supported by the First Affidavit of Tara Timmins sworn 9 June 2021 (“Timmins 1”) together with its Exhibit “NCL-1” and a Supplemental Affidavit of Tara Timmins sworn 18 June 2021 (“Timmins 2”) together with its Exhibits “NCL-1 – NCL-13”.

2. On 18 June 2021, after an ex parte hearing on notice, based on the submissions of counsel for the Plaintiff Mr Durham, I granted the injunction. Counsel for the Defendant Mr Taylor was present but made no submissions in respect of the application. I had intended for the hearing to be an inter partes hearing, however Mr Durham understood the hearing to be an ex parte hearing on notice, then communicated that understanding to Mr Taylor. Therefore, the matter proceeded on the basis of an ex parte hearing on notice with the inter partes hearing to be held as soon as possible thereafter, namely 29 June 2021.

3. On 25 June 2021 the Defendant electronically filed the First Affidavit of Douglas Wagner sworn 25 June 2021 along with its Exhibit “DWW-1”, its skeleton argument and a bundle of authorities.

4. On 28 June 2021 the Court was informed at 5:19pm by email from the Defendant that “The Plaintiff has agreed that the injunction granted on 18 June 2021 should be discharged, with immediate effect.” Therefore, the parties would attend the hearing on 29 June 2021 in respect of the Defendant's application for costs. In respect of opposing the application for costs, the Plaintiff relied on the Third Affidavit of Tara Timmins sworn on 29 June 2021 (“Timmins 3”) together with its Exhibit “TT3–1”.

5. On 29 June 2021 I granted the order to discharge the injunction. I reserved my Ruling on the application for costs which I now issue.

Background

6. The Plaintiff is a contracting firm, engaged in the supply of construction services.

7. The Defendant is a project management company and a general contractor.

8. The Plaintiff and Defendant entered into two agreements as follows: (a) by a first contract dated 13 May 2019 “the Interconnect Contract”, for the Plaintiff to supply and install a submarine combined power and fibre optic cable from the switchgear at “The Finger” in St. David's to the cable vault at the helipad in St. George's and a similar cable from that vault to the BELCO substation at the new L.F. Wade airport; and (b) by a second contract dated 13 May 2019 “the Solar Farm Contract”, for the Plaintiff to construct and for the Defendant to support the build of a 6MW Solar Photovoltaics Facility at The Finger (“the Solar Farm”).

9. Disputes have arisen between the parties and the Plaintiff filed and served a Specially Indorsed Writ of Summons issued 10 May 2021 claiming damages in the amount of $1,347,386.17 (“the Claim Amount”). The Defendant has not yet filed a Defence as the Plaintiff had agreed to the Defendant's request dated 27 May 2021 for an extension of time to file the Defence on or before 19 July 2021.

The Plaintiff's Application for an Injunction on 18 June 2021

10. At the start of the hearing in response to the Court querying about the position of the Defendant for the hearing, Mr Taylor stated words to the effect that his client was aware of the application and they had discussed it but in terms of their approach, he did not have settled instructions. Further, in response to the Court querying whether the parties had had any discussions about an imminent June sale of the Solar Farm, Mr Taylor stated words to the effect that the parties had not had discussions, that there was a very good reason why they had not had discussions and he was hesitant to say anything further.

11. The basis for the Plaintiff's application for an injunction was based on an article written by a journalist of the Bermuda daily newspaper the Royal Gazette, that was published on 7 June 2021 (“the RG Article”) which reported on remarks made by the Minister of Finance in the House of Assembly on a prospective purchase of the Solar Farm. That article was the only document in the exhibit to Timmins 1. The article made various statements including “A solar farm set up at the airport could be bought by the Bermuda Infrastructure Fund (BIF) for $9.1 million later this month, MPs heard on Friday. …” Curtis Dickinson [the Minister of Finance] said “The fund has signed a letter of intent to acquire the project for $9.1 million and is expeditiously working towards definitive documents and commissioning of the project. The deal is expected to close in June 2021. He added that the developer, Saturn Power, had signed an agreement with Belco to sell the electricity produced at the site for 20 years. The solar farm, an array of 24,000 panels on a disused runway, was hoped to be up and running by the end of last year. …”

12. On the basis of that article, the Plaintiff applied for an injunction on various grounds including: (a) that there appeared to be an imminent sale due to be closed in...