The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

The Central Bank’s bid to strike out a Bahamian contractor’s $116,000 claim for breach of contract relating to roof repairs has been rejected by a Supreme Court judge.

Justice Ian Winder, in an October 25, 2021, said he was “not satisfied” that the claim by Hubert Fowler, trading as Guarantee Construction, should be dismissed despite the banking regulator arguing that it was “an abuse of process” because there was “no privity of contract” between the two parties.

The contractor is claiming that the Central Bank, on September 4, 2017, “accepted a proposal... to ‘conduct a rehabilitation of the concrete underdeck” on the Central Bank’s roofing system for $838,088.

“The claim alleges that payments are outstanding on the contract in the amount of $64,315, as well as an agreed overtime amount of $51,377,” Justice Winder said. “The Bank pleaded that it did not enter into an agreement with Fowler but with a company called Guarantee Construction Company Ltd.

“It further pleads that there was no overtime agreement, and that any outstanding sums claimed under the contract were not paid as the work performed by Guarantee were sub-standard.” The contractor, it added, was part of a joint project with Specialised Roofing Installations (SRI), with the latter responsible for removing the “existing membrane”.

The Central Bank, in arguing that the claim be dismissed, asserted that the construction agreement was with Guarantee rather than Mr Fowler personally. And it alleged that Guarantee was struck off the Companies Registry on August 23, 2019, and not restored.

“An executed agreement has not been produced by either party. Fowler contends that he entered into the contract personally trading as Guarantee Construction, and that nowhere in the documents is there is there any reference to a limited company,” Justice Winder wrote. 

“Fowler says that whilst the use of the name Guarantee Construction Company is on some of the documents, none of the references use the word limited to suggest a limited company.” The contractor added that he also produced evidence of tax and National Insurance Board (NIB) compliance, as well as a valid Business Licence, showing he was “trading as” Guarantee.

The Central Bank, though, argued that the case should be struck out because it was brought by Mr Fowler “trading as Guarantee” and he was not the contracting party.

However, Justice Winder concluded: “Whilst there could be some confusion as to whether a company was being engaged by the Central Bank or whether Fowler was personally engaged via his trade name, I am not satisfied that the claim could be described as an abuse of the process of the court.

“No executed agreement has been provided, and whilst there is a reference to Guarantee Construction Company there is no reference to Guarantee Construction Company Ltd. There was no certificate of incorporation provided to the Bank by Fowler at the time the roofing contract was entered into.

“It is also to be noted that the Bank had Fowler’s business license in its possession at the time of the entry of the agreement. This business license, which was current at the time, was in Fowler’s personal name trading as Guarantee Construction. Upon this contract Fowler claims to have received well over $700,000 towards the reconstruction of the Bank’s roof,” he added.

“Whilst the Bank may have had ample reason to construe that the reference to company in the contractor’s representations was to a corporate entity rather than simply a business, it is not the only possible interpretation. It could not be said to be a plain and obvious case. I am therefore not satisfied that this is a matter to be determined on a summary basis.”