By JADA LOUTOO Sunday, July 29 2012

FORMER directors of special purpose company, Evolving Technologies and Enterprise Development Company (eTeck), have taken their fight against a US$5 million claim filed by the company, last year, to the Appeal Court.

Former e-Teck chairman Ken Julien, and directors Dr Rene Monteil, Brian Copeland, Ulric Mc Nicols, Eugene Tiah and Sonia Noel, filed an appeal on Friday last after Justice Devindra Rampersad refused to strike out e-Teck’s claim and ordered the matter go to trial.

Legal action was initiated against the former board in a bid to recover US$5 million arising out of an investment in a China-based company, Bamboo Networks Limited (BNL), in 2005, to develop e-Teck’s information technology business venture as part of the former PNM’s regime’s diversification of the country’s downstream industries.

The claim alleges the failure by the six to ascertain whether the investment with BNL was prudent and in the interest of the company or the country. According to the claim, Bamboo Networks has failed to perform any of its obligations under the agreement arrived at by the then Julien-led board and has failed to return the invested sum despite several requests by e-Teck.

According to the statement of case filed in the High Court, notwithstanding advice by the Finance Ministry not to invest in BNL because of the poor financial state of the company, on January 18, 2005, the Julien-led eTeck board resolved to proceed with the investment in BNL.

It is the contention of the special purpose company that the failure by Julien and his then board to exercise due diligence placed the investment at considerable risk. The six have also been accused of failing to act prudently, and of having breached their duties as directors and board members, resulting in the company suffering losses and damages. Attorneys representing the six, Douglas Mendes, SC, John Jeremie, SC, Stuart Young and Michael Quamina sought to have the claim struck out, arguing it was statute barred. However, attorneys representing e-Teck, among them Vincent Nelson, QC, Israel Khan, SC, and Gerald Ramdeen countered that the issue of limitation could not be determined as a preliminary issue, but at trial, after all the evidence had been presented to the court.

The company also argued the claim could not be statute barred since relevant information was deliberately concealed from the company.

After considering the arguments, Justice Rampersad ordered the matter go to trial, as he held he could not fully determine the conflicting evidence by affidavit evidence alone. If the matter goes to trial, the former e-Teck directors can be cross-examined by the company’s lawyers. The appeal is expected to be heard in the new law term in September.