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Attorney: Money belongs to NHT not contributors

Published:Thursday | June 23, 2016 | 12:00 AMLivern Barrett

Contributors to the National Housing Trust (NHT) do not "legally or beneficially" own any of the funds held by the NHT, lawyers for the agency have asserted.

In fact, Kevin Powell, who is representing the NHT in a suit filed by St James businessman Fitzroy Fagan, said the NHT Act recognises that funds held by and for the agency "are the resources of the trust".

"And (the NHT Act) allows the NHT to use its resources (which include the contributions paid to it) in ways that do not directly benefit the contributors," Powell argued.

Fagan is challenging the decision of the last Portia Simpson Miller administration to withdraw $45.6 billion from the NHT for budgetary support.

The three High Court judges hearing the case have reserved their decision.

The Simpson Miller government also amended the NHT Act to enable the agency to pay over the money in annual instalments of $11.4 billion, starting in 2013 and ending this financial year.


Public outcry


Amid much public outcry over the withdrawal, the Government explained that the money was needed to help meet fiscal targets included in the country's four-year extended fund facility with the International Monetary Fund.

However, Fagan, through his attorneys, is contending that the NHT (Amendment) (Special Provisions) Act 2013 is unconstitutional because it deprives him of property without putting in place a mechanism for fair and adequate compensation.

Powell, in his response yesterday, noted Fagan's claim that the NHT holds his contributions 'in trust'.

"This claim is misconceived," the NHT attorney argued.

According to him, the NHT was never intended to operate as a private trust scheme, despite the use of the word 'Trust' in the name.

"The word 'Trust' in the statute merely describes the organisation the NHT Act creates. It does not describe a legal or fiduciary relationship between the NHT and its contributors," Powell argued.

In addition, he said the manner in which the NHT is allowed to use contributions indicates that Parliament did not intend to create a trust.