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Super Plus to pay $140m to Continental Baking

Published:Wednesday | October 8, 2014 | 12:00 AM

Barbara Gayle, Justice Coordinator

Super Plus Food Stores Limited will pay a reduced award of just under $140 million to Continental Baking Company for goods supplied to the supermarket chain, according to a Court of Appeal ruling.

Super Plus and its trading partner Tikal Limited were originally ordered by the Supreme Court to pay the $190 million In May 2013, based on admissions that they owed their supplier - a sum they contested on appeal.

The Court of Appeal, when it varied the award, said separate claims by Continental Baking, the operator of National Bakery, Rainforest Seafoods, and meat company Copper Wood - all creditors of Super Plus and Tikal - were curiously included in a single action against the supermarket operators.

The explanation for what the court described as the rolled-up claim seemed to lie in the fact that there were apparently prior negotiations between the parties and an agreement on settlement. In the absence of payment, the creditors filed their claim in the Supreme Court.

During the hearing, the creditors made an application for Super Plus and Tikal's defence to be struck out and summary judgment entered in favour of Continental for $131.95 million, Rainforest Seafoods Limited for $16.95 million and Copper Wood Limited for $33.09 million.

An alternative claim was also made for judgment on admissions to be entered for Continental Baking in the sums of $139.95 million, $16.77 million and $33.09 million with interest.

The Court of Appeal said that Supreme Court Justice Evan Brown granted judgment on the alternative claim as he viewed it as more appropriate and in line with admissions made by Super Plus and Tikal.

Excess award

Despite admitting to owing those sums, Super Plus and Tikal complained on appeal that the sums awarded were in excess of the amount that Continental Baking had claimed.

In arguments before the appeals court, attorney Georgia Gibson Henlin, who represented Continental Baking, asked that the court vary the judgment on admission to reflect the uncontested portion, $139.95 million, owed to Continental Baking. She said the claim for the remaining sums could be remitted to the Supreme Court for resolution.

However, attorney Nigel Jones, who represented Super Plus and Tikal, submitted that it would be unfair to allow Continental Baking to amend its pleadings to accord with the judgment.

He said allowing the judgment to stand for the three separate sums would expose the companies to having to pay the admitted sums to Continental Baking and to the risk of having to pay two of those sums again to Rainforest and Copper Wood.

The Court of Appeal, comprising Justices Hilary Phillips, Patrick Brooks and Marva McDonald-Bishop, held that the judgment against Super Plus and Tikal, having been entered for a sum in excess of the amount claimed by Continental Baking, was defective.

The court also agreed with Jones that an amendment would leave Super Plus and Tikal exposed to the claims of Rainforest and Copper Wood.

"Although there is no formal application before this court for the judgment to be varied, the court has the authority to give the judgment which ought to have been given in the court below," the justices held.

The parties were each ordered to bear their own costs.

Gibson Henlin said judgment was entered for Continental only because Super Plus and Tikal had said they did not owe the funds to Copper Wood or Rainforest. Copper Wood and Rainforest will now have to apply for judgment in the Supreme Court.

barbara.gayle@gleanerjm.com