Thu | Aug 17, 2017

Citing an irregularity ...Court rejects Asset Recovery claim to block disposal of $50M house

Published:Friday | April 28, 2017 | 4:00 AMMcPherse Thompson
The Ministry of Finance and the Public Service at Heroes Circle, Kingston.
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The Supreme Court has rendered null and void a claim filed by Asset Recovery Agency which was seeking to restrain the disposal of a $50-million St James-based property, pending the trial of the owners for money laundering.

Justice David Batts made the ruling partly based on an irregularity in the claim served on the defendants, Robert Sylvester Dunbar and Christina Rosetti Dunbar.

The judge noted that a review of the court file revealed that the agency filed the claim under the Proceeds of Crime Act (POCA) on May 14, 2015, but failed to serve the requisite documents on the Dunbars.

On March 8, 2016, another claim form and particulars of claim with the same suit number and in terms identical to the one filed on May 14, 2015, was filed and served on the Dunbars on March 16, 2016.

This the court found to be an irregularity by the Asset Recovery Agency, a part of the Financial Services Division at the Ministry of Finance and the Public Service.

"A claimant, and in particular the State as claimant, ought not to be permitted to adopt irregular measures bordering on the deceptive, and then be allowed to proceed," Justice Batts said, before going on to throw out the agency's application.

He said it was in the public's interest that the POCA be enforced, but it must be done in accordance with the law.

According to the judgment made at the end of March, the agency filed four affidavits sworn to by the same person who was not identified, which asserted that Robert Sylvester Dunbar was under investigation, has been charged and is now before the court for money laundering. Much reliance was placed on statements made by Dean and Delmar Drummond which implicate Robert Dunbar.

The agency said Dean Drummond was successfully prosecuted in the United States for drug-related offences. Reliance was also placed on seized ledgers, which it is said referred to Robert Dunbar, as well as affidavits which purport to demonstrate that his income was insufficient to acquire property he now owns.

The affiant, in one of the affidavits, said he believed the property represents the Dunbars' benefit from criminal conduct, namely Robert Dunbar's drug-trafficking activities with Dean Drummond.

The affidavit said further that there are reasonable grounds to believe that the Dunbars have engaged in money laundering and might take steps to transfer, sell, dissipate or otherwise deal with the asset and thereby frustrate any subsequent recovery order made by the court.

The sole asset in respect of which the restraint order was sought is property located at Ironshore, St James, which the Dunbars purchased for $1.5 million, constructed a house. The property was valued at $50 million in 2013.

The Dunbars denied involvement in illegal activity, explained their relationship with the Drummonds and set out in some detail their sources of income.

Attorney for the Dunbars, Denise Senior-Smith, submitted that the conditional appearance filed by the Dunbars was in response to an irregular document that is, on the face of it, null and void and of no effect.

The judge noted that the agency's attorney, identified in the judgment as Susan Watson Bonner, being of the view that her claim filed in May 2015 had expired without being served, "sought to correct the position by an entirely irregular act. That is, by simply retyping another claim with the same suit number and obtaining a later filing date, in effect passing off the document as being a claim filed in 2016 when, in fact, the claim was filed in 2015".

Justice Batts said the court had the power to correct irregularities. "However, I do not believe that the conduct displayed in this case should be so rewarded," he said.

The judge said no reasonable ground has been demonstrated on the evidence that the Dunbars are likely to dissipate the asset and that the agency's conduct suggested there is no real belief reasonably held that they intend to do so.

Moreover, Senior-Smith said much of the Dunbars' evidence of their sources of income has not been directly contradicted. In addition, she said, the Dunbars were associated with various companies which are identified by name, but the agency did not adequately investigate those assertions.

In dismissing the matter, Justice Batts said the agency's case that there is a real risk of dissipation is found wanting.

Chief Technical director at the FID, Robin Sykes told the Financial Gleaner that refilling the claim as it was done was a mistake, but they were not trying to be dishonest and had no intention of misleading the court.

In addition, he said he believes there are appealable aspects of the case relating to their application to restrain the disposal of the property in question due to pending criminal proceedings, and they are considering those internally.

mcpherse.thompson@gleanerjm.com