Judge finds Gary Aboud threatened consultant over failed $10m investment

DEREK ACHONG

Se­nior Re­porter

[email protected]

Busi­ness­man and en­vi­ron­men­tal­ist Gary Aboud has been found to have forced a fi­nan­cial con­sul­tant to ac­cept li­a­bil­i­ty for a failed $10 mil­lion off­shore in­vest­ment through threats and in­tim­i­da­tion.

High Court Judge Devin­dra Ram­per­sad made the se­ri­ous find­ing against the Mode Alive own­er on Mon­day as he dis­missed a case pur­sued by Aboud, his wife and sis­ter-in-law seek­ing to re­coup loss­es on their in­vest­ments.

In­stead, Jus­tice Ram­per­sad up­held a coun­ter­claim from Lawrence Mol­len­thiel and his com­pa­ny, In­vest­ment De­signs Lim­it­ed, al­leg­ing that Aboud and an as­so­ciate co­erced him in­to sign­ing a doc­u­ment ac­cept­ing li­a­bil­i­ty for the loss dur­ing an in­tense four-hour meet­ing at his of­fice in 2017.

Aboud was or­dered to pay Mol­len­thiel $25,000 in com­pen­sa­tion for false im­pris­on­ment.

In a brief tele­phone in­ter­view, Aboud, cor­po­rate sec­re­tary of NGO Fish­er­men and Friends of the Sea (FFOS), stat­ed that he plans to chal­lenge the out­come and find­ings.

"There is truth and the truth shall set us free. The mat­ter is be­ing ap­pealed," Aboud said.

The law­suit cen­tred on in­vest­ments in the Cay­man Is­lands-based Ki­jani Com­mod­i­ty Fund made by Aboud, his wife, Merylle Ma­habir, and her sis­ter, Na­tal­ie Ma­habir, through Mol­len­thiel and his com­pa­ny be­tween 2011 and 2015.

The trio claimed they de­cid­ed to in­vest through Mol­len­thiel and his com­pa­ny be­cause he pro­vid­ed fi­nan­cial ser­vices for Aboud's moth­er-in-law and for­mer In­de­pen­dent Sen­a­tor Di­an­na Ma­habir-Wy­att.

Aboud in­vest­ed $10 mil­lion in Feb­ru­ary 2012, while his wife in­vest­ed $644,000 in two tranch­es in 2013.

Na­tal­ie Ma­habir claimed that she in­vest­ed US$297,000 in Ki­jani, even though a pre­vi­ous in­vest­ment in an­oth­er scheme rec­om­mend­ed by Mol­len­thiel re­sult­ed in a US$63,344.16 loss.

The rel­a­tives claimed that they sub­se­quent­ly learned that the mon­ey had not been trans­ferred to the fund as promised.

In June 2015, Cay­man Is­lands au­thor­i­ties seized the fund over is­sues with ver­i­fy­ing its as­sets, and it was liq­ui­dat­ed.

In 2020, the trio filed a law­suit against Mol­len­thiel and his com­pa­ny, al­leg­ing fraud­u­lent mis­rep­re­sen­ta­tion, neg­li­gence, breach of fidu­cia­ry du­ty, breach of trust, breach of con­tract and un­just en­rich­ment.

In re­la­tion to his in­vest­ment, Aboud sought to re­ly on a doc­u­ment signed by Mol­len­thiel in Sep­tem­ber 2017 un­der which he pur­port­ed­ly agreed to re­pay the mon­ey Aboud had in­vest­ed.

In their de­fence, Mol­len­thiel and his com­pa­ny de­nied be­ing li­able for the failed in­vest­ments.

Mol­len­thiel claimed he act­ed on­ly as an in­ter­me­di­ary in­sur­ance in­vest­ment bro­ker and did not man­age the fund in which the trio in­vest­ed.

He de­nied mis­ap­pro­pri­at­ing the funds and claimed that they know­ing­ly en­tered the in­vest­ments, un­der­stand­ing that they car­ried in­her­ent risks.

Mol­len­thiel al­so claimed that he signed the doc­u­ment un­der duress and un­due in­flu­ence.

He con­tend­ed that Aboud and an as­so­ciate, Ish­mael Fer­gu­son, al­so known as "Ab­dul­lah", came to his of­fice al­leged­ly with a cut­lass and pre­vent­ed him from leav­ing for al­most four hours.

He claimed that he was threat­ened and in­tim­i­dat­ed and on­ly agreed to sign the doc­u­ment be­cause he feared for his safe­ty and that of his fam­i­ly.

While be­ing in­tense­ly cross-ex­am­ined by Mol­len­thiel's lawyer, Kiel Tak­lals­ingh, Aboud ad­mit­ted at­tend­ing the meet­ing with Fer­gu­son, whom he de­scribed as a long­stand­ing friend who as­sist­ed him with debt col­lec­tion.

Al­though Aboud firm­ly de­nied the al­le­ga­tions of threats and in­tim­i­da­tion, he did not call Fer­gu­son as a wit­ness to chal­lenge Mol­len­thiel's claims, as he did not con­sid­er it nec­es­sary.

In de­ter­min­ing the case, Jus­tice Ram­per­sad found, on a bal­ance of prob­a­bil­i­ties, that the trio had signed ap­pli­ca­tion forms with bind­ing terms.

"The ap­pli­ca­tion form re­it­er­at­ed that there were the nor­mal risks with in­vest­ments as one would rea­son­ably ex­pect," he said.

"No doubt, the sec­ond claimant (Mol­len­thiel) would have put for­ward the Ki­jani Com­mod­i­ty Fund as a good op­tion but, sim­i­lar­ly, the Court is of the view that there is no such thing as a risk-free in­vest­ment in the world of com­mer­cial fi­nanc­ing and in­vest­ments," he added.

He al­so re­ject­ed the trio's at­tempts to hold Mol­len­thiel and the com­pa­ny li­able for the fund's col­lapse.

"The at­tempt to pin the li­a­bil­i­ty for the in­vest­ments on the de­fen­dants, when there was noth­ing to sug­gest any de­pri­va­tion of the abil­i­ty to con­sult and to per­form due dili­gence be­fore their in­vest­ments to the ex­tent that the claimants did, not on­ly seems un­fair to the de­fen­dants but, re­spect­ful­ly, seems mis­di­rect­ed for sure," Jus­tice Ram­per­sad said.

Deal­ing with Mol­len­thiel's coun­ter­claim, Jus­tice Ram­per­sad took is­sue with Aboud's fail­ure to call Fer­gu­son to sup­port his ver­sion of the events that took place dur­ing the pro­tract­ed closed-door meet­ing.

"Mr Fer­gu­son was an ob­vi­ous wit­ness ca­pa­ble of speak­ing di­rect­ly to whether threats were made, whether any weapon was present, and whether Mol­len­thiel ap­peared free to leave," he said.

Jus­tice Ram­per­sad up­held Mol­len­thiel's claims of il­le­git­i­mate pres­sure, even though he did not re­port the mat­ter to the po­lice. He not­ed that Mol­len­thiel com­mu­ni­cat­ed his con­cerns about what tran­spired in sub­se­quent mes­sages to Aboud and his lawyer.

"Tak­ing the ev­i­dence as a whole, the Court con­sid­ers the sec­ond de­fen­dant's ac­count of co­er­cion more prob­a­ble than the propo­si­tion that, dur­ing an oth­er­wise or­di­nary com­mer­cial meet­ing, he vol­un­tar­i­ly as­sumed per­son­al re­spon­si­bil­i­ty for the en­tire­ty of a $10 mil­lion in­vest­ment loss which he con­sis­tent­ly main­tained was not his re­spon­si­bil­i­ty," Jus­tice Ram­per­sad said.

He not­ed that there was no ev­i­dence that Aboud was act­ing on be­half of his wife and sis­ter-in-law.

"He must there­fore bear the full re­spon­si­bil­i­ty of the same alone," Jus­tice Ram­per­sad said.

The trio was or­dered to pay Mol­len­thiel's le­gal costs for de­fend­ing the law­suit and pur­su­ing the coun­ter­claim.

The trio was rep­re­sent­ed by Gre­go­ry Delzin, SC, and Di­anne Mano. Mol­len­thiel and his com­pa­ny were al­so rep­re­sent­ed by Vivek Lakhan-Joseph and Raphael Mor­ton-Git­tens.