A BID by Harare property developer, Fairclot Investments, to block its rival Augur Investments from developing and selling residential stands in Pomona has been dealt a blow after High Court judge Justice Siyabona Musithu removed the matter from the roll.
Justice Musithu removed the matter saying it had been overtaken by events.
Fairclot Investments wanted to attach the stand in a matter that was referred to the Supreme Court.
But Augur opposed the application arguing that Fairclot had filed an improper application.
The land developer also argued that considering the fact that the Sheriff of the High Court uplifted judicial attachment on the property after debt had been discharged in full, Fairclot should have filed an application for review instead of an interdict.
Augur had submitted that they paid their obligations contrary to Fairclot assertion. They also argued that Fairclot Investments claim concerns payment of money and there is nothing on record to show that Aurgur Investments is unable to pay the debt in the event that the application for review succeeds or their application for declaratur failed.
The two companies are embroiled in a long-standing financial dispute over part of the funding for the dual carriageway in Harare leading to Robert Gabriel Mugabe International Airport.
The matter spilled into the Supreme Court after Augur approached the court challenging the High Court decision ordering attachment of Stand Number 654 Pomona belonging to West Property Holdings to offset the debt with Fairclot.
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Augur entered into a contract agreement with Fairclot Investments trading as Truck and Construction Private Limited (T&C Construction) for the construction of the airport road and was offered 30 ha of stand 654 Pomona Township as collateral.
After constructing a portion of the road, a dispute over payment arose and Fairclot pulled out of the project and parties went for arbitration and Fairclot won the case.
However, following the promulgation of the Statutory Instrument 33 of 2019 which declared that debts owed in US dollars could be settled in local RTGS at a rate of 1:1, Augur Investments transferred $4,8 million and $1 078 040,21 to Fairclot Investments in local currency.
After the full payment the sheriff of the High Court lifted the attachment of the stand, which was then transferred to Doorex, a shelf company owned by Augur.
The appeal comes after Fairclot then successfully challenged the upliftment of the attachment on the property by the Sheriff of the High Court on the grounds that the debt had been cleared after the payment of $4,8 million in local currency.
In its notice of appeal, the property development company argues that the lower court erred in failing to hold that the arbitral award dated March 19 2015, granted in favour of Fairclot, constituted a liability affected by the statutory instrument which then was incorporated into the Finance Act No. 2 of 2019.
So Augur also argues that the lower court also erred in determining that the 2015 arbitral award only became effective upon its registration on 26 June 2019. The RTGS payments were in fulfilment of the award of 2015.
