By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

Attorneys for SuperClubs Breezes yesterday pledged to “vigorously press” for a quick hearing of its appeal against the Supreme Court’s refusal to grant a construction-stopping injunction that would halt work on Baha Mar’s $3.5 billion project.

Fred Smith QC, the Callenders & Co partner, told Tribune Business they were seeking “an urgent” hearing from the Court of Appeal to ensure the Baha Mar “Goliath doesn’t stamp on David’s rights”.

SuperClubs Breezes, in its March 12 appeal motion, argued that Justice Milton Evans’ verdict gave Baha Mar no incentive to complete the two resorts’ ‘land swap’ agreement because it was already enjoying the benefits of that deal by occupying, and constructing, on its land.

And, while Baha Mar was “on track” to complete construction of its project in time for its projected March 27 opening, its fellow Cable Beach resort alleged it was unable to make a start on its 50 per cent expansion.

This, SuperClubs Breezes and its attorney alleged, exposed it to “great loss and damage” in terms of foregone earnings that it might be unable to recover.

Justice Milton Evans, in a March 6 ruling, found that Baha Mar was at “greater risk of prejudice” should he grant the work-stopping injunction when compared to the impact on SuperClubs Breezes if he decline the application.

He ruled in favour of Baha Mar’s argument that imposing an injunction would be “extremely damaging” with its ‘soft opening’ now less than two weeks away.

And Justice Evans found that SuperClubs Breezes’ 50 per cent expansion, which its owner is alleging has been delayed by Baha Mar’s failure to fulfil a Letter of Intent’s (LOI) land swap terms, was “too remote” - when compared to Baha Mar’s $3.5 billion investment - on the issue of damages flowing from any injunction.

Disagreeing with the verdict rationale, SuperClubs Breezes and its attorneys alleged: “The learned judge fell into grave error in assessing where the balance of convenience lay by weighing the appellant’s [Breezes] interest in having the LOI completed (so that it could enjoy the fruits thereof against [Baha Mar’s] interest in avoiding delays to the construction of its project.”

SuperClubs Breezes and its operating parent, PPL (Nassau) Ltd, are arguing that the Supreme Court failed to account for the fact that Baha Mar “has no right whatsoever to possess or undertake construction” on any property owned/leased by it until the LOI ‘land swap’ are completed.

As a result, the Cable Beach all-inclusive operator is arguing that any delay to Baha Mar’s construction plans from an injunction is irrelevant in determining the application’s merits.

“The respondents [Baha Mar] are in occupation of the appellant’s [SuperClubs Breezes] property before completion of the LOI, and as such are enjoying the benefits of the LOI without the appellant being able to do likewise,” SuperClubs Breezes and its attorneys alleged.

“This means that the impetus on the respondents to complete the conveyances and other obligations under the LOI is removed.

“In the meantime, the respondents are on track to complete their development whilst the appellant is unable to make a start.”

SuperClubs Breezes’ appeal motion added: “This is likely to result in great loss and damage to the appellant [Breezes] in terms of loss of earnings from launching its expanded development at the same time as the same time as the respondents’ development, as was envisaged when the Letter of Intent was entered into.

“This loss and damage may not be recoverable under the LOI, as it may be arguable that it flows from the trespass rather than from a breach of the LOI.

“There is a risk that this type of loss and damage may not be sufficiently proximate or foreseeable to be recoverable as damages for trespass.”

SuperClubs Breezes further alleged that the LOI’s completion was “not a foregone conclusion” as it hinged on Baha Mar’s “willingness” to ensure its terms were fulfilled. It added that it was entitled to possession of its property until the LOI was completed.

Mr Smith told Tribune Business: “Breezes is going to press vigorously for a quick appeal. It cannot be that Baha Mar can enter on to land that does not belong to them without conveyances.

“A purchaser is not allowed to enter a possession before completion unless it’s agreed to. There was no agreement to allow Baha Mar on to that portion of Breezes’ property before completion.”

While SuperClubs Breezes had allowed Baha Mar to enter the land containing its old wastewater treatment plant, and demolish it, to enable it to proceed with its $3.5 billion development, Mr Smith added that this did not mean his client had relinquished its other rights.

“Breezes hopes it will able to persuade the Court of Appeal that it has the absolute right to keep control if its property until completion [of the LOI], whether it inconveniences Baha Mar or not,” Mr Smith told Tribune Business.

“We are writing to request an urgent appeal, we hope in short order. It’s not complicated; the documents are few.”