Business
Jada Loutoo
Creditors either in support or against a petition for the winding up of financial-crippled gas-to-liquids company NiQuan Energy have been advised to send notice of their intention by April 19.
Notice is to be sent to attorney Natasha Bisram of the law firm Freedom Law Chambers, led by former attorney general Anand Ramlogan, SC.
The winding-up petition was advertised in the TT Gazette on April 3.
Freedom Law represents NiQuan’s former vice president for global services, David Small. On February 1, Small filed the petition so he could recover the $21 million court-ordered payout owed to him for breach of a written separation agreement.
The petition will be heard on May 3, by Justice Westmin James.
Already, a commercial bank which holds a short-term note instrument from NiQuan to 20 note-holders from various countries, Republic Bank Ltd, has warned any order to liquidate the company “could potentially jeopardise” an attempt to “rehabilitate NiQuan” – which could take between eight and 12 months – to the detriment of creditors.
Also in response, attorneys for seven entities, all financial institutions, as well as a major contractor, have written to the court to tell the judge their clients were also creditors to NiQuan “for substantial sums.”
“In light of our clients’ interests and the nature of these proceedings, in order to ensure an equitable and orderly processing of creditors’ claims against NiQuan, we write to give notice of our clients’ interests as legitimate creditors and our instructions are to take steps to secure the preservation of their respective rights and interests that may be affected in the course of these proceedings,” the court was told.
Small’s action comes after James ordered NiQuan on September 29, 2023, to compensate him for a breach of his exit agreement.
The winding-up petition said after entry of the judgment, Small made a demand for payment on October 30, 2023.
It also said on January 15, the Court of Appeal dismissed NiQuan’s application for a stay.
“Therefore, that debt is due and outstanding.”
Small notified several banks and financial institutions – eight in all – of the judgment debt.
“The petitioner has, on more than one occasion, requested that the company pay its debt, but the company has failed and/or neglected and/or refused to pay the same or any part thereof.
“The company is unable to pay its debts. In the circumstances, it is just and equitable that the company should be wound up.”
However, on March 5, NiQuan’s founder, chief visionary officer and director Ainsley Gill applied to dismiss the winding-up petition. In his affidavit in opposition, Gill said the petition was an abuse of process, oppressive and unfair.
“There are other more appropriate remedies available to Mr Small to recover any indebtedness owed to him,” Gill said.
He also added, “While NiQuan is experiencing cash flow difficulties, on a balance sheet analysis, its total assets exceed the value of the debt claimed by Mr Small and the aggregate value of all of its debts owed to its other creditors.”
Gill was also against the publishing of the advertisement of the intended winding up petition as provided for under the Companies Winding Up Rules under the Companies Act.
“If such advertisement is made against NiQuan it will only result in the premature demise of NiQuan’s commercial reputation through significant embarrassment and commercial hardships which would naturally result from same.
“Indeed, the domino effect of such advertisement can lead to the crippling of the company’s operations especially given certain facilities enjoyed by NiQuan which would be compromised.”
His affidavit in opposition to the petition also said publication of the petition would “render NiQuan unable to meet current and potential liabilities including any potential liability to Mr. Small as a contingent unsecured creditor, by exacerbating issues faced in engaging any loan facilities and/or investments.”
“It could also materially affect NiQuan’s ability to pursue its meritorious legal claims against Trinidad and Tobago Upstream Downstream Energy Operations Company Ltd and the Government…which have the support of NiQuan shareholders, senior secured mortgage noteholders, unsecured noteholders, vendors, suppliers contractors and other material stakeholders.”
Gill’s opposition said the filing and publication of the petition could also potentially lead to the freezing of all NiQuan’s bank accounts, “causing significant damage” to the public perception of the company and would be “likely to materially impact future commercial viability and opportunities for its business.
“It may lead to the NiQuan business being unable to secure credit from its suppliers and lenders.”
Gill also said the company was likely to “have meritorious grounds for claiming substantial damages” against Small for “malicious prosecution” and a cross-claim was likely “to extinguish Mr Small’s debt claim against NiQuan.
“In all the circumstances, the court ought to conclude that it is not just and equitable that NiQuan should be wound up.”
Gill further said he believed the petition was filed for the “collateral purpose” of putting pressure on NiQuan “under threat of the prospect of damaging publicity.”
Small, a former independent senator, left the company in November 2021. He contended NiQuan breached a settlement agreement and he was entitled to a total of $18,575,880.40, representing his salary, accrued vacation, ex-gratia payment and a one-time $12.8 million bonus on the financial close of the World GTL plant.
The judge agreed that NiQuan had breached the agreement by failing to fulfil its obligations and also ruled there was no condition to prevent the company from keeping with the agreed payment schedule.
