Buyers fail in effort to have Aquarius declared bankrupt

February 09, 2010 4:34 AM

PHILIPSBURG--Thirteen U.S. residents have failed in their bid to have Aquarius Company Ltd. and Sabra N.V. declared bankrupt. A judge in the Court of First Instance ruled in favour of the developer and owners of Red Pond Estates on Monday.

The plaintiffs had purchased single-family residences in the Aquarius project, situated at Red Pond Estates between Dawn Beach and Guana Bay. The plaintiffs, who all reside in the United States, started legal proceedings on December 1, 2009. Their case was heard in court on January 25, 2010.

The Aquarius project, construction of which started in 2007, is to consist of 280 beachfront condos and seaside villas, as well as a casino and spa. According to the sale agreement, the tentative closing date for construction was set on or about November 2008.

More than one year later, however, the apartments are still not finished. And what's more, construction has been at a total standstill for quite some time already, the plaintiffs claim.
In their opinion, the developer is not keeping his side of the bargain and is unlawfully refusing to pay back instalments.

The plaintiffs all annulled the sale agreements of their properties during the past five or six months. According to them, Aquarius is obligated to pay back every payment and should be declared bankrupt because it fails to do so.

In the meantime, Aquarius has indicated to plaintiffs that it expects to finish construction of the apartments around August or November 2010. Aquarius and Sabra contested the plaintiffs' claim and said there was no reason to declare bankruptcy.

According to Judge René van Veen, bankruptcy can be declared in case a debtor is incapable of making any payments, but not when he is unwilling to make these payments.
According to the judge, it was proven that Aquarius was not incapable of making such payments. In a similar case brought before the Court in July 2009, Aquarius and Sabra had made payments to their clients after the court ordered them to do so.

It is up to the plaintiffs to prove that debts remain unpaid, the judge stated, adding that there was no evidence that any other claims had also remained (partially) unpaid. Therefore, the Court was of the opinion that possible other debts would be paid by the defendant.
The Court rejected the plaintiffs' claim and ordered them to pay the cost of the legal proceedings, which was estimated at NAf. 1,000 in each of the two cases.

Attorney-at-law Mark Kortenoever stated on behalf of his clients that they were pleased with the outcome of this case.
"My client wants to state explicitly that the actions which are being initiated and are being published in the newspaper with much verve are nothing more than a smear campaign against client in an effort to put the Erato family [the owners of Aquarius, ed.] in a bad light. But the Court is not convinced of what these activists are presenting as being the truth. Also in these bankruptcy cases the propositions of the plaintiffs have been swept off the table," Kortenoever said.

(Source: The Daily Herald St. Maarten)

9 February 2010