Court sides with Zebec, considers Theo was ‘lord and master’ at port

Court sides with Zebec, considers  Theo was ‘lord and master’ at port

PHILIPSBURG--In an interim ruling, the court on Tuesday considered that Theo Heyliger was “lord and master” in Port St. Maarten for many years and with a group of enablers “sabotaged” the development of a shopping and entertainment centre in the cruise port ten years ago. To reach a final verdict, the court gave Heyliger the opportunity to present counter-evidence during a subsequent hearing on a date to be determined.

The court rejected the claim of Heyliger and the other defendants that the case is time-barred. In a 53-page interim judgment, brothers Luis and Angel Gioia, owners of Zebec Development NV, have been vindicated for the time being regarding the claim that the development of their shopping centre in the cruise port was deliberately thwarted. This shopping centre, called Dutch Village, would cover 3,300 square metres and consist of at least 16 stores. Port St. Maarten signed an agreement with Zebec, but the partnership soon turned out to be standing on shaky ground.

On June 26, 2013, Zebec reported to Port St. Maarten Managing Director Mark Mingo: “On March 5, 2012, you as CEO of the St. Maarten Harbor Cruise Facilities NV (SMHCF) transferred to us, Zebec Development NV, the right of long lease on a parcel of land […] for the purpose of developing a mixed use retail and entertainment complex.

“To date you have continually frustrated our efforts to bring this development to fruition. Your constant delays and lack of action have resulted in lost profits from our inability to exploit this development, but also opportunity costs associated with not being able to invest these funds elsewhere.

“As recently as within the last 10 days we were unable to access our land to showcase the proposed development to important global brands in the food and beverage sector, hampering our ability to effectively commercialise the development with world-class tenants.

“We have made repeated attempts to mobilise on the property to begin construction and despite your formal approval to begin the project we have been unable to meet with your logistics personnel to make that a reality.

“Our emails to you for assistance go unanswered. Overall, the treatment we receive from you as a ‘partner’ is disgraceful.”

However, defendants in the case are neither Mark Mingo nor Port St. Maarten. Zebec is suing St. Maarten Quarter Development Company NV (SMQDC), a subsidiary of Royal Caribbean Cruises Ltd. (RCCL), as the first of five defendants. The others are Ocean Drive Properties BV (ODP) statutory director Jelle Hamstra and ultimate beneficial owners (UBOs) Deepak “Danny” Ramchandani and Prem Mirpuri. The fifth and final defendant is politician Theo Heyliger.

Zebec demands that the defendants be held jointly and severally liable for payment of a total of US $92 million for causing the Dutch Village project to fail. Ultimately, it was a call from Heyliger that would lead to the collapse of the project, said Luis Gioia, who was invited by Heyliger to meet with him.

“In this meeting he told me that the store that I would be renting out to Diamond International was his and he would be collecting the rent from Diamond International. I was a bit surprised by this and I told him, ‘I am sorry, but I can’t allow that.’ He then put his hand on my shoulder and told me, ‘It’s okay, don’t worry about it.’ A few minutes later he left.

“After this meeting everything stopped. It was virtually impossible to reach Mingo or Heyliger and shortly after, we received a letter from Mingo telling us to cancel the project because it didn’t start on time and asking us to return land and offering to refund the fee Zebec paid to the Port.”

Gioia told the Court: “Now that I look back, call it a master plan or a well-thought-out manipulation of a cascade of events, I can see how we were played for years. Maybe we were naïve, as it was ‘public gossip’ that nothing happens at the port without Heyliger’s blessings. I am now convinced that decision-making at the port was not driven by the Port’s best interests and those of the shareholder and country St. Maarten, but rather in the self-interest of Heyliger and his elite group of enablers.”

On September 20, 2010, Zebec entered into an agreement with St. Maarten Harbor Cruise Facilities for the development of a 13,000-square-metre plot of land located between the two cruise piers. The Dutch Village would be built on this site. For this development, the port required permission from Royal Caribbean Cruises Ltd., via subsidiary St. Maarten Quarter Development Company NV (SMQDC). That permission did not come. SMQDC refused to sign an agreement because the planned shopping centre would be “too commercial.”

Zebec claims that SMQDC, together with the other defendants, torpedoed the Dutch Village development. Heyliger would have wanted to allocate the business opportunity to Ramchandani and Mirpuri, because they had already been allowing Heyliger to collect rental income for real estate in the port that they own for years.

Heyliger argued at the hearing that there is no evidence of this fraudulent system and he denies being a key player in it. According to Heyliger, he had no position at all in the port. He would have had no interest in thwarting the development of Dutch Village.

Based on breach of contract and a settlement enforced through court, Ocean Drive Properties has paid US $10 million to Zebec. Heyliger stated to the court that he assumed that the case had been settled with that settlement.

Zebec claims that Heyliger has committed an attributable unlawful act against the Gioia brothers. He is said to have ensured that Royal Caribbean Cruises Ltd. refused permission for the project on improper grounds.

Heyliger refuted the statements that incriminated him, but according to the court he did so without providing sufficient substantiation. The court requires further explanations and statements from Heyliger and gave him the opportunity to provide evidence and witnesses that can refute what Zebec has put forward.

On November 28, Heyliger is expected to inform the court about how he will provide counter-evidence during a new hearing.

The Daily Herald

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