Wed | May 27, 2020

J’can court clears path for Panama company lawsuit against Free Form

Published:Friday | March 27, 2020 | 12:09 AMMcPherse Thompson - Assistant Editor – Business
The Supreme Court building at King Street, downtown Kingston.
The Supreme Court building at King Street, downtown Kingston.

THE SUPREME Court has ruled that the lawsuit brought by a Panamanian company to recover commercial debt can proceed in the local court, having rejected a challenge to the case that spun on the omission of a suffix from the claimant’s name.

Polyamer Corporation SA of Panama City is suing Free Form Factory Limited, a local manufacturer of expandable polystyrene products, for more than US$270,000.

Polyamer alleges that the Jamaican company failed to honour invoices in full for supplies of raw material and machine accessories sold on credit between July 2001 and June 2015.

In June 2019, Free Form challenged the lawsuit that was first filed in 2016, saying the foreign company lacked locus standi – that is, the right to bring legal action and be heard in court – because it had omitted to add its registered suffix ‘S.A.’ to its name in the court filing of its claim. The Jamaican company also indicated a preference for the case to be tried in either Panama or Florida.

But Justice Kissock Laing, in a judgment handed down this month, rejected the gambit.

Court documents indicate that the supply arrangement was initially struck in July 2001 between Free Form and Polyamer Corporation, a company incorporated in Florida. Then in June 2014, Polyamer Corporation of Panama was assigned the assets and liabilities of Polyamer Corporation of Florida, as noted by the Panamanian company’s claim.

Polyamer Corporation SA alleges it is owed US$270,715 on a debt of US$583,361 that was assigned to it by Polyamer Florida.

Justice Laing, in his written judgment, said the issue he had to determine was whether the omission of ‘SA’ from the Panamanian company’s name in the court filings was fatal to its case.

To that his answer was no, saying at no point did Free Form assert that there was any other firm in Panama called Polyamer Corporation that could have been confused with Polyamer Corporation SA. The evidence also indicated that there is only one Polyamer Corporation registered in Panama, he said.

As to Free Form’s notice to the court that it intended to object to the claim continuing, on the grounds that Jamaica is not the proper jurisdiction and that either the State of Florida or Panama might be, Laing said none of those forums seemed more appropriate than Free Form’s own home base.

“There are sufficient connecting factors with Jamaica to establish jurisdiction, including the residence of the defendant and its main witness Mr Keith Edwards, its director,” the judge said.

“It is also reasonable to conclude, in the absence of any evidence to the contrary, that the contractual expectation of the defendant when it entered into the contract with Polyamer Florida was that he would have been sued in Jamaica if there was a dispute arising from or under that contract, and it ought not to be surprised if it is facing a claim in Jamaica arising from a liability which the claimant is asserting has its genesis in the defendant’s contract with Polyamer Florida,” he added.

Attorney Kashima Moore represented Polyamer Corporation.

Attorney Michelle-lee Bell, who along with Tamika Jordan and Kristina Thompson represented Free Form Factory, said she would speak to her senior, Martina Shelton, and then respond to the Financial Gleaner as to whether the company will be appealing the case. However, Shelton declined to comment.

There was no indication as to whether a trial date has since been set for the substantive case to be heard by the Supreme Court.