Hylton attorney hits back at Désulmé
Published:Sunday | March 20, 2011 | 12:00 AM
Dionne Rose, Business Reporter
Dave Garcia, the attorney representing Patrick Hylton, on Thursday, hit back with suggestions that Jean-Marie Désulmé was attempting to use the FINSAC commission to make judgement calls on the ongoing legal fights over his confiscated assets.
Hylton was at one time the head of the Financial Sector Adjustment Company Limited (FINSAC).
Garcia suggested Désulmé was trying to force the commission to address matters that were before the courts.
"Mr Désulmé, is it correct that the debts and receivership concerns in which you have given evidence before this commission are the subject of Thermo-Plastics and Plas Pak in the Supreme Court of Jamaica?" asked Garcia.
But Désulmé tried to evade the question.
"Against whom? I would like to know who are you speaking of," he demanded. He also disclosed that he had filed about seven lawsuits against FINSAC, Pricewaterhouse-Coopers, National Commercial Bank, and others.
Personal motive
Désulmé then qualified the nature of the lawsuits, which he said varied from claims of corruption to conspiracy and political manipulation.
But Garcia insisted that Désulmé's appearance before the FINSAC enquiry had a personal motive.
"Mr Désulmé, do you see your evidence before this commission as an opportunity to criticise the decisions of the Supreme Court judges?" asked Garcia.
Désulmé's answer to that was a chuckle.
"I don't know how you can come and accuse me of doing that," he said.
But Garcia would not let up.
"Is it not the case that you are seeking for this commission of enquiry to make findings on the very matters that are being considered by the Supreme Court in claims filed on your behalf?" he asked.
But Désulmé's lawyer, Anthony Levy, interjected, pointing out that the question was inappropriate.
Désulmé then got very emotional as Garcia insisted he answer the question with a yes or no.
"I am bringing the truth to the commission!" he said, raising his voice, his Haitian accent very pronounced.
"I cannot dictate what decisions they are going to make. I bring facts to them; it is up to them to make a decision. I'm not asking them to act like the court."
He continued: "How can you ask me what I'm hoping for? It is my state of mind you are asking me! You can't ask me if I'm happy, if I'm not pleased, if I'm upset; it's my state of mind you are asking me. Ask me something direct pertaining to something."
Garcia also suggested that Thermo-Plastics Jamaica was heavily indebted to six banks - NCB, CIBC, International Trust and Merchant Bank, Citizens Bank, Horizon Merchant Bank, and Eagle Commercial Bank - at the time of the receivership of the company in 1998.
Désulmé admitted that the company owed money to banks, but didn't say how much.
Garcia also submitted evidence, which showed that the company owed several non-financial debtors including The Geon Company, a United States-based firm that supplied PVC pipes and other materials to Thermo-Plastics.
Geon applied to the Supreme Court in 1998 to have Thermo-Plastics wound up, but the order was set aside in 2004 with the agreement by both parties.
Désulmé said he was not the head of Thermo-Plastics at the time. The business was started by his father.
Garcia also rejected claims made in earlier testimony by Désulmé that manufacturer Omni Industries Limited had given the best offer to purchase the assets of Thermo-Plastics, saying National Investment Bank of Jamaica (NIBJ) had given a far better offer of $220 million for the assets.
"Is it not correct that if Omni was able to make good an offer of $120 million, that amount would have been insufficient to settle the amounts outstanding by Thermo-Plastics and Plas Plak at the time?" Garcia asked. "Would $120 million be sufficient to discharge the various obligations that Thermo-Plastics and Plas Plak have to their various creditors?"
Désulmé responded that the value of Thermo-Plastics' assets would have had to be examined. But Garcia pointed out that it was not the question posed. Désulmé then yielded and said no.
Evidence
Garcia entered evidence, a memorandum of understanding from Patrick Hylton to Shirley Tyndale, showing that Omni failed to provide a letter of undertaking to purchase the assets within a specific time frame.
"NIBJ offered $220 million to purchase the debts, and Omni was offering $120 million to purchase the assets from the receiver, and so for FINSAC, as the debenture holder, you would agree with me that clearly, an offer to purchase the debt for $220 million would be much more attractive than an offer to the receiver to purchase the assets for a $120 million?" he asked.
Désulmé said he would disagree, but was denied a request to expound on his reasons by the commissioners.
Under cross-examination from Sandra Minott-Phillips, the lawyer representing the Jamaica Redevelopment Foundation, Désulmé said he had no issue with the JRF.
The FINSAC enquiry, which was established in 2009, is examining the collapse of the financial sector in the 1990s. The enquiry resumes Tuesday at The Jamaica Pegasus hotel.