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Board Member Slapped With Restraining Order

By NICO SCAVELLA

Tribune Staff Reporter

nscavella@tribunemedia.net

ONE of two “warring factions” seeking supremacy of the Lucayan Towers South Condominium Association has been hit with a restraining order after a former board member ordered the locks to the Resident Manager’s office to be changed without the current board’s permission.

The Court of Appeal said the invalidated board of Douglas Prudden, Yasmin Popescu, Linda Carroll-Strachan, Debra Edwards, and Julie Glover are prohibited from meddling in the board’s affairs after Ms Glover unilaterally instructed a local security firm to change the locks in question.

Previously, an appellate judge had ordered that none of the former board, their servants or agents were at liberty to enter the Freeport property, and were to be granted “restricted access” to certain areas like electrical rooms, elevator shafts or the offices of senior managerial staff.

The matter is the latest development in an ongoing legal dispute over which of two factions of unit owners is lawfully entitled to constitute the management board of the Lucayan Towers South Condominium Association in Grand Bahama.

According to the ruling, the initial dispute between the “warring factions” arose in January 2013 and concerned the validity of the EGM convened by Ms Glover and company (the respondents) on January 9, 2013. At that time, the respondents, as well a man named Chris Rolle were purportedly elected to the board in place of Maurice Glinton, QC; Michael Storr; Gordon Adderley and Godfrey Bowe (the appellants) who had been duly elected to the board at an AGM held on March 21, 2005. Mr Glinton was the chairman of the 2005 board.

Following the EGM, both sides commenced legal proceedings. The initial proceedings were filed by the respondents on May 28, 2013 in a bid to secure a declaration that the EGM was in fact valid, as well as declarations requiring the second appellants to cease and desist from interfering with their management of the condominiums.

Meanwhile, on December 24, 2013, the appellants commenced a separate action in a bid to invalidate the EGM and any decisions made at that meeting. They also sought damages, various declarations, injunctions and other relief.

Both proceedings were consolidated and were heard before then-Chief Justice Sir Michael Barnett. At a case management hearing before the substantive trial, Sir Michael ordered that an AGM be convened and conducted. That order was not appealed and Mr Glinton made arrangements for the court-ordered AGM to be held.

Prior to the start of that AGM, which was scheduled to convene on March 28, 2014, Mr Glinton determined that a quorum was not met, and adjourned the AGM to April 11, 2014. However, despite Mr Glinton’s decision, some unit owners remained behind after he and others had left the venue, purportedly convened an AGM and elected a new board consisting of the same people who were elected at the EGM in 2013.

Those elected persons also purported to ratify the EGM and the actions taken by them since then on behalf of the body corporate. But when the AGM resumed on April 11, 2014, an election was held and the unit owners present elected a new board that consisted of the 2005 board.

Problems between the two factions persisted and the appellants went back before the chief justice to again challenge the purported election of the respondents at the March 28, 2014 meeting. Following a contested hearing, the chief justice held that the respondents (the ones who were elected on March 28, 2014) were unit owners who had been validly elected and therefore constituted the new board of directors as of that date.

The Chief Justice also held that the respondents were not the directors of the association from January 9, 2013—the date of the EGM—to March 28, 2014. The 2005 directors were still the directors during that period, the Chief Justice found, and thus, the claim by the respondents against the appellants in the first action could not succeed.

Aggrieved by the portion of the chief justice’s ruling concerning the validity of the court-ordered AGM, the appellants appealed to the Court of Appeal. On September 4, 2017, the appellate court set aside the Chief Justice’s ruling and held that the appellants (the 2005 directors who had been re-elected at the resumed AGM on April 11, 2014) were the validly constituted board of directors.

However, the appellate court did not interfere with the Chief Justice’s finding pertaining to the status of the 2005 directors following the EGM from which there has been no appeal.

The appellate court subsequently remitted the consequential matters that remained outstanding in the consolidated Supreme Court proceedings, back to that court for determination.

Following the September 4, 2017 decision, the respondents filed a notice of motion seeking leave to appeal to the Privy Council. That application has not been heard and has not been scheduled for hearing. Nor have the respondents applied for a stay of the proceedings pending their intended appeal.

On or about October 27, 2017, the appellants were served with a bundle of documents that purported to be a requisition for their removal allegedly signed by 57.51 per cent of the unit owners. On November 6 of that year, signs were posted around the condominiums compound giving notice of a General Meeting of the body corporate scheduled for November 15, 2017 at 6pm. The stated purpose of the meeting was to vote for and elect a new board of directors.

On November 7, 2017, however, without consulting the board and notwithstanding that the purported General Meeting had not yet taken place, an agent of Globaltech Security Company, accompanied with a police officer, went to the Condominiums at the instructions of Ms Glover, and changed the lock on the door of the Resident Manager’s office.

The board immediately filed an application in the Supreme Court seeking interim injunctive relief to restrain the respondents from interfering with the its duties as the lawfully elected board, or from convening general meetings (whether annual or extraordinary) until further order.

As their application was not scheduled for substantive hearing until December 2017, which was well after the date for the said meeting, the board approached the Court of Appeal ex parte on November 14, 2017 and obtained a conservatory order from Justice Jon Isaacs. That order restrained the respondents, their nominees, agents, or proxies from convening an AGM or EGM until the determination of the issues.

In obedience to the conservatory order, the General Meeting was aborted and did not take place. Following a court hearing, Justice Petra Hanna-Adderley handed down a ruling on February 14, 2018 in which she refused the interim injunctive relief and dismissed the application with costs.

The appellants subsequently appealed Justice Hanna-Adderley’s decision, and also made an ex parte application via summons under a Certificate of Urgency filed on February 21, 2018 for interim relief pending the appeal.

The appellate court allowed the board’s appeal, finding that had Justice Hanna-Adderley examined the board’s Writ of Summons “as carefully as she should have done”, she would have found that the board was not seeking a “free-standing injunction as she erroneously thought”.

Conversely, the appellate judges said the board of directors were “merely preserving their right” as the lawful directors of the association to manage the Association’s affairs and also obtain the relief they sought in their writ.

However, the appellate court noted that while its September 4, 2017 decision settled the primary dispute over which group was the validly elected board, other issues still remain outstanding and have yet to be heard and disposed of.

The saga continues.

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