Taliesin Court Verdict Hold Until Expert Analysis
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Judgment: October 23, 2024
JOINT COURT OF JUSTICE
of Aruba, Curacao, Sint Maarten and
of Bonaire, Sint Eustatius and Saba
JUDGMENT
in summary proceedings
in case SXM
the public limited company
TALIESIN CONSTRUCTION NV,
located in Sint Maarten,
appellant,
in first instance plaintiff in case SXM
defendant in first instance in case SXM20
hereinafter: Taliesin,
authorized representative: mr. PAM Brandon,
in return for
[Respondent],
located in Sint Maarten,
respondent,
defendant in first instance in case SXM
in first instance plaintiff in case SXM
hereinafter: [respondent],
authorized representative: EI Maduro,
and
in case S
[Respondent],
located in Sint Maarten,
appellant,
defendant in first instance in case SXM2
in first instance plaintiff in case SXM2
hereinafter: [respondent],
authorized representative: EI Maduro,
in return for
the public limited company
TALIESIN CONSTRUCTION NV,
located in Sint Maarten,
respondent,
in first instance plaintiff in case SXM20180
defendant in first instance in case SXM2
hereinafter: Taliesin,
authorized representative: mr. PAM Brandon.
1The further course of the procedure
1.1
The Court delivered an interlocutory judgment in both cases on 30 July 2024. In that judgment, the Court gave the parties the opportunity to comment on the questions formulated by the Court for the expert to be appointed and the amount of the costs of the expert investigation.
1.2
At the hearing in Sint Maarten on August 21, 2024, the parties each filed a deed.
1.3
Judgment has been requested and set for today.
2The further assessment
person of the expert and advance
2.1
The parties had already jointly nominated an expert, namely Mrs [expert]. At the request of the Court, she declared that she was willing and able to conduct the investigation and that she had no ties with the parties and their representatives. [expert] estimated the costs of her work at USD 7,500.
2.2
The Court will appoint [expert] as expert and will set the advance payment for her work at USD 7,500, since the parties have not raised any objections to this. The parties must each pay half of the advance payment as soon as possible, but no later than four weeks after the date of this judgment, as was already decided in the interlocutory judgment. The expert is requested not to commence her work until she has received payment from both parties.
2.3
The expert must give the parties the opportunity to make comments and requests during her investigation. The expert report must show that this requirement has been met. The best way to meet this requirement is for the expert to give the parties the opportunity to comment on a draft report and then incorporate that comment into a final report.
2.4
The Court will order Taliesin to provide copies of the entire file to the expert.
comments on the proposed questions to the expert
2.5
No comments were made on behalf of [respondent] on the questions proposed by the Court. Taliesin’s attorney made comments on the manner in which the expert should calculate the statutory increase and the statutory interest, taking into account interim payments. These comments prompted the Court to amend the questions as stated below.
2.6
Taliesin’s representative also made comments on the wording of the questions about vacation days, namely that the question should express that it concerns vacation days not taken. However, that was already in the proposed questions 1g and 2g. The Court will adjust the wording of those questions with regard to the method of calculating the statutory increase and the statutory interest, taking into account interim payments.
DECISION
The Court:
recommends an expert report and appoints as experts:
[expert]
TRU Consulting Services BV/TaxRus
Welfare Drive 16, unit 6A,
Cole Bay, Sint Maarten
(721)542 4808
asks the expert the following questions:
for the period from 1 July 2009 to 31 December 2009 (period A)
1a Can you make a “payroll calculation” of which net amounts Taliesin should have paid to [respondent] per quincena and on which date per net amount that amount should have been paid at the latest, based on a gross salary of USD 100 per day, a working week of 5 days per week and 8 hours per day and deducting what is deducted from a gross salary in Sint Maarten as customary social security contributions?
1b Can you provide an overview of the net amounts that Taliesin actually paid to [respondent] and on what dates it paid those amounts?
1c Based on the answers to questions 1a and 1b, can you show the progress of the balance of what has been paid out and what should have been paid out (specification of payment arrears)?
1d Can you calculate the statutory increase of 10% based on the answers to questions 1a-1c?
1. Can you calculate the statutory interest on the amounts due as determined in answer to questions 1c and 1d, per payment period, calculated from the due dates until the date of full payment (including processing of interim payments) or until the date of your report (for amounts that have not been paid at all) and can you indicate what the total amount due in arrears of wages with statutory increase and statutory interest is for period A?
1f Can you indicate, on the basis of documents provided by [respondent], what he paid in payroll tax/insurance/pension provisions during this period based on his earnings at Taliesin?
1g Can you use the information provided by the parties to determine whether [respondent] took his due vacation days (30 per year) during this period and, if not, how many days were not taken and what their monetary value is, per year and calculated on the basis of the wage value of those days in the year in which they were accrued?
1h Can you calculate the statutory increase of 10% on the amounts determined in response to question 1g?
1i Can you calculate the statutory interest on the amounts due as found in answer to questions 1g and 1h, per year and calculated from the due dates until the date of full payment (including processing of interim payments) or until the date of your report (for the instalments that have not been paid at all) and can you indicate what the total amount due is in respect of unused holiday days with statutory increase and statutory interest over period A?
1j Do you have any further comments on how you think the amounts resulting from the convictions in the operative part of the 2018 decision should be calculated? If in your opinion the calculation should be made differently than follows from the previous questions, would you please explain that opinion and make that different calculation?
for the period from 1 January 2010 to 31 December 2018 (period B)
2a Can you make a “payroll calculation” of which net amounts Taliesin should have paid to [respondent] per quincena and on which date per net amount that amount should have been paid at the latest, based on a gross salary of USD 1,410.75 gross per quincena, a working week of 5 days per week and 8 hours per day and deducting what is deducted from a gross salary in Sint Maarten as customary social security contributions?
2b Can you provide an overview of the net amounts that Taliesin actually paid to [respondent] and on what dates it paid those amounts?
2c Can you, based on the answers to questions 2a and 2b, show the progress of the balance of what has been paid out and what should have been paid out (specification of the payment arrears)?
2d Can you calculate the statutory increase of 10% on the amounts determined in response to questions 2a-2c?
2nd Can you calculate the statutory interest on the amounts due as found in answer to questions 2c and 2d, per payment period, calculated from the due dates until the date of full payment (including processing of interim payments) or until the date of your report (for amounts that have not been paid at all) and can you indicate what the total amount due in arrears of wages with statutory increase and statutory interest is for period B?
1f Can you indicate, on the basis of documents provided by [respondent], what he paid in payroll tax/insurance/pension provisions during this period based on his earnings at Taliesin?
1g Can you use the information provided by the parties to determine whether [respondent] took his due vacation days (30 per year) during this period and, if not, how many days were not taken and what their monetary value is, per year and calculated on the basis of the wage value of those days in the year in which they were accrued?
1h Can you calculate the statutory increase of 10% on the amounts determined in response to question 2g?
1i Can you calculate the statutory interest on the amounts due as found in answer to questions 2g and 2h, per year and calculated from the due dates until the date of full payment (with processing of interim payments) or until the date of your report (for the instalments that have not been paid at all) and can you indicate what the total amount due is in respect of unused holiday days with statutory increase and statutory interest for period B?
1j Do you have any further comments on how, in your opinion, the amounts resulting from the convictions in the operative part of the 2018 decision should be calculated?
If in your opinion the calculation should be made differently than what follows from the previous questions, would you please explain that opinion and make that different calculation?
about the advance
sets the advance payment of the expert’s compensation and fees at USD 7,500 and determines that each party shall pay half of this advance to the expert within four weeks from today;
determines that the expert will not commence the investigation until the full advance payment has been received;
about the file
orders Taliesin to send a copy of the entire file to the expert;
about the expert report
instructs the expert to give the parties the opportunity to make comments and requests during the investigation and to demonstrate in the written report that these have been complied with;
determines that the expert will submit a written, reasoned and signed message to the Registry of the Court no later than six weeks after receipt of the full advance payment, submitting an invoice stating registration numbers SXM2 and SXM20(Taliesin/[respondent]);
about the continuation of the procedure
determines that after receipt of the expert report, the Court will refer the case to the next role in Sint Maarten for a conclusion following the expert report;
declares this judgment provisionally enforceable to that extent;
reserves any further decision.
This judgment was rendered by Mrs. EM van der Bunt, GCC Lewin and CG ter Veer, members of the Joint Court of Justice of Aruba, Curaçao, Sint Maarten and of Bonaire, Sint Eustatius and Saba and pronounced at the public hearing of the Court in Sint Maarten on 23 October 2024 in the presence of the registration of