St. Maarten – Aquarius Company Ltd. and Sabra NV have both been declared bankrupt by the Court in First Instance yesterday. The court appointed attorney Norbert Hijmans as the trustee in both bankruptcies. Both companies – from Marc and Johnny Erato – were involved in the failed Aquarius-project at Gibb’s Bay, where the buyers that took the companies to court deposited pre-construction payments to the tune of $ 3.3 million; other duped buyers paid together at least another $ 7 million to Aquarius and Sabra.
Seven duped buyers, represented by attorney Michiel Noordhoek of HBN Law, demanded the bankruptcy of both companies. An earlier attempt to declare Aquarius bankrupt in 2010 failed because the court at that time ruled that bankruptcy is only possible if a company is unable to meet its financial responsibilities. Aquarius was, according to the court, unwilling to pay, not unable to do so.
This time the court established, based on productions submitted by Mr. Noordhoek, that Aquarius has effectively ceased to exist. The company did not appear in court and did not send a legal representative either.
Judge Katja Mans declared Aquarius in a state of bankruptcy and appointed Coen Luijks as Judge of Instruction and Mr. Norbert Hijmans as trustee.
The court also declared Sabra NV bankrupt, but in this case, the company was represented by attorneys Tony Engelsma and Mark Kortenoever of Lexwell Attorneys.
The petition attorney Noordhoek submitted to the court shows that Sabra has stopped making payments. The seven duped buyers signed a purchase contract for a condo in the Aquarius project with Aquarius Ltd; they made payments to this entity as well as to Sabra. “The apartments have never been delivered and the land has in the meantime been auctioned,” the ruling states.
Furthermore, the ruling establishes that Sabra received money from the buyers “while there was no legal basis for these payments” and also that Sabra did not return the money to the buyers.
The buyers are entitled to get their money back, but in spite of several reminders, Sabra has failed to pay.
Sabra did not contest the fact that at least four of its creditors hold an executorial title and that the company is stuck with a debt to the bank for the mortgage after the land was sold in auction.
This gave the court the proof that several creditors are not being paid by Sabra – a requirement for pronouncing bankruptcy.
Sabra did claim in court that it is still making payments, but Judge Mans noted that these claims are “not substantiated, while the company at the same time acknowledges its limited option to offer redress.”
Sabra also claimed that it had transferred payments from the plaintiffs to Aquarius and that his company had used the money for construction activities. The court ruled that these payments have not been sufficiently substantiated either.
In the Sabra-bankruptcy, the court also appointed Coen Luijks as Judge of Instruction and mr. Norbert Hijmans as trustee.
Attorney Noordhoek told the court in his plea that directly or indirectly the Eratos are the sole shareholders in Aquarius and Sabra as well as the factual and/or statutory directors of these companies. He also pointed out that during recent years several assets have been fraudulently transferred from Sabra to one or more other entities, inter alia an Anguilla-based company called World Tours Limited.
“It is distressing that Aquarius and Sabra have even demanded several payments from all Aquarius-buyers after construction has ceased and while the construction stages for which these payments were meant were not completed yet,” Noordhoek further stated to the court. “While doing that they threatened the buyers to terminate their purchase-contracts while under forfeiture of all payments made until then. This has made certain buyers to make even additional payments to Aquarius and Sabra and that money now seems to have evaporated.”