Claro walks away free

January 20, 2011 6:30 AM

Packers Provisions Curaçao N.V. loses case concerning the distribution of bottled water Aqualectra. There is no default or unlawful breaking off of negotiations with Packers Provisions Curaçao N.V. by Aqualectra for the (exclusive) distribution of water bottled by Aqualectra, according to the Court of Appeal.

This appears from the judgment this week in this case that has dragged on for so long. The claim for compensation of over 5 million guilders therefore seems off. There had already been advanced talks with PPC (trade name: Kortijn Ice Company) in 2003 by the then Aqualectra Managing Director Steven Martina and technical expert Karel Tujeehut, and agreements had even been made. At the time, Rozier was not an MP as yet; he has been for only a few months.

But according to the Court of Appeal, the Board of Supervisory Directors of the utility company “understandably” noticed a significant deviation compared to the original setup – in a careful analysis befitting a final agreement. That the Board of Supervisory Directors of Integrated Utility Holding nv (IUH), as Aqualectra is formally called, and in its footsteps subsidiary Aqualectra Multi Utility nv (AMU), did not agree with it was already justified in itself, and not in any way unlawful towards PPC, according to the Court of Appeal. In addition: the Court of Appeal does not agree with the opinion of the Court in First Instance (August 2007) that AMU actually broke off the negotiations. In the opinion of the Court of Appeal, there was still room for negotiations on cooperation after the notice of AMU that the Board of Supervisory Directors of IUH did not agree and after AMU presented a sale and purchase agreement in March 2005. “However, PPC gave up and thus broke off the negotiations itself.”

According to the Court of Appeal, “in every stage” there were only draft agreements and – even if it would be assumed that AMU broke off the negotiations – it was entitled to do so (“it adequately did the best it could”) under the Letter of Intent.

Claims on PPC integrally dismissed

“In this connection it is not unimportant that AMU cannot be blamed for PPC phasing out the development of its own brand of bottled (imported) water,” as judges De Boer, Sijmonsma, and Lock of the Court of Appeal state. PPC’s claims have to be dismissed integrally according to the Court of Appeal, and PPC has to pay the costs of the proceedings in the first instance and of the appeal. Miles John Holding bv is managing director and Desiree Rozier-Coffie is attorney-in-fact of Packers Provisions Curaçao nv/Kortijn Ice Company. Dean Miles John Rozier (38) is sole director of Miles John Holding (trade name “Kortijn Holding”). Since a few months, Rozier has been the chairman of the largest parliamentary party MFK of prime minister Gerrit Schotte in Parliament.

In connection with the interlocutory judgment of the Court of Appeal (July 2010), PPC had disputed that Rozier had received a copy of the MBA (Memorandum for Board Approval), and consequently had offered to provide evidence. This evidence is “not relevant”, according to the judgment of the Court of Appeal of this week, as it is a fact that Rozier knew about the involvement of the Board of Supervisory Directors of Aqualectra (IUH). Reference is made to his testimony, in as far as it has not been retracted. “He knew that for the purchase of the machines and the like the approval of the Board of Supervisory Directors was required, he became impatient with waiting, and he could reasonably assume – it apparently concerned approximately one million guilders, entirely coming from AMU – that the Board of Supervisory Directors would not give its approval until after having agreed to the setup of the project, in principle. PPC also admits that in the initial setup the production company to be established would not exclusively supply to the distributions company to be established.

(Source: local newspaper Antilliaans Dagblad)

14 January 2011

In these legal proceedings, PPC/Kortijn of Rozier was represented by the lawyers Roel Bijkerk and Sandra in ‘t Veld in Curaçao and M. Ruygvoorn in the Netherlands. Aqualectra Multi Utility (AMU) and IUH were assisted by the lawyersCarine Jänsch and Mayesi Hammoud of VanEps Kunneman VanDoorne in Curaçao.

Defendant Aqualectra Multi Utility N.V. and Integrated Utility Holding N.V. were represented in these proceedings by VanEps Kunneman VanDoorne - Mrs. Mayesi Hammoud and Carine Jänsch.