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Vigilante wins judgment against ex-business partner

Restaurateur Gianni (Claudio) Vigilante has won a $200,000 judgment against former business partner Christopher Trott.

The judgment, handed down by Supreme Court judge Stephen Hellman, sheds light on the troubles of the former Fresco’s group of restaurants, the subject of a number of separate legal cases involving various parties.

Mr Vigilante said yesterday he was glad to prove he was telling the truth.

Mr Trott said yesterday: "I have assisted people locally over the years. However in this instance, It is with great regret that I look back on all the help that I have given to this man--backing him from his employment with others and onto his own businesses."

Mr Trott in a separate case earlier won a substantial judgment in Supreme Court vs Mr Vigilante

In finding in this case that Mr Trott must pay Mr Vigilante $200,000 plus interest from 2003, the judgment stated that Mr Vigilante claimed that on or about September 2003 the defendant, Mr Trott, signed a promissory note whereby he promised to pay the plaintiff $200,000 plus interest at 7 percent per annum, accrued on a quarterly basis.

The principal and interest were allegedly payable upon maturity of the note on September 1, 2008. The purpose of the promissory note was allegedly to secure repayment of $200,000 that the plaintiff had purportedly loaned to the defendant.

Mr Vigilante was unable to produce the promissory note, although he has produced a draft, the judgment stated.

“The text of the draft note states that the promise by the defendant to pay the plaintiff $200,000 is made ‘[p]ursuant to loan for value received’.

“The Plaintiff alleges that the note was removed from his office by the defendant’s wife.”

The judgment says Mrs Trott denies this, and the defendant denies executing the note.

“There is some limited circumstantial evidence on which the Plaintiff relies,” the judgment says. “But the case boils down to a conflict of evidence between the plaintiff and his witnesses on the one hand and the defendant and Mrs Trott on the other.”

The judgment says the facts include in 2002/2003 the two were friends.

“The Plaintiff was looking for a new home,” the judgment noted. “The Defendant told the Plaintiff that if the Plaintiff found a Bermudian property that he liked, the Defendant would buy it and rent it to him. This was with a view to the Plaintiff buying the property if he obtained Bermudian status or a certificate of permanent residency.

“The Plaintiff found a property at 1 Scarrington Hill, Paget which was on the market for $920,000. The Defendant bought the Property and leased it to the Plaintiff, who occupied the Property with his family as a tenant.

The Defendant does not dispute this. He accepts that he signed an agreement leasing the Property to the Plaintiff. The lease was dated 1st September 2003. Both parties produced a copy of the lease to the Court. He also accepts that he obtained a mortgage of $750,000 from First Bermuda Group Ltd to help with the purchase of the Property.

“However the Plaintiff contends that he, ie the Plaintiff, contributed a loan of $200,000 towards the purchase price. He gave evidence that the Defendant signed the promissory note one evening when he, ie the Defendant, came round to the Plaintiff’s business premises. He said that the Defendant complained that the 7 percent interest rate shown in the promissory note was too high and amended the note by hand so that the interest rate was 4 percent.

“The Plaintiff gave evidence that in 2009 he had asked the Defendant for repayment of the loan. This was because although the Plaintiff had by now qualified for permanent residence, the law had changed to prevent him from purchasing the Property from the Defendant as the Defendant was Bermudian. The Plaintiff stated that the Defendant had said that there was no need to repay the loan as the law might change again in the future so that the Plaintiff could buy the Property.

“The Plaintiff and the Defendant have since fallen out. The Defendant denies that there was ever any loan or promissory note. His evidence about the purchase of the Property and the surrounding circumstances was quite sparse. He stated that this was because his recollection of the events of 10 years ago is not clear.”

The judgment notes that it is not disputed that, over the years, the Defendant has provided “generous support” to Mr Vigilante’s businesses.

“The Plaintiff is the former director and shareholder of a group of companies known as Frescos group, which consisted of the companies behind the restaurants Frescos, Silk Thai Cuisine, 64 Bar and Grill, and the Opus Café and Grill. The Defendant was an investor in this Group.

“The Group got into financial difficulties in around 2011, and the business and personal relationship between the Plaintiff and the Defendant began to deteriorate. Mrs Trott gave evidence alleging mismanagement and financial impropriety by the Plaintiff. The Plaintiff, the Defendant, and the companies in the Fresco Group became embroiled in various pieces of litigation. The Defendant and Mrs Trott became majority shareholders in two of the companies in the Fresco Group. This was in order to protect their investment.

“In or about July 2011 the Defendant and Mrs Trott visited the Plaintiff at his office. It is common ground that Mrs Trott removed various files from the office in order to go through the accounts of the companies in which she and the Defendant were now shareholders. The Plaintiff alleges that one of those files contained the promissory note, which he says he kept in his office. Mrs Trott states that she has never seen the note and that it was not contained in any of the files which she removed.”

The judge said: “I note that files were moved previously, although not by the Defendant or Mrs Trott, when the Plaintiff moved offices in 2007 and 2009.”

The judge notes Mr Vigilante relies on the evidence of two former employees, Rosemary Madeiros and John Williams.

Ms Madeiros was a former director, shareholder and accounts manager of the Frescos Group. She gave evidence that the Plaintiff mentioned the note to her, and that he showed her a copy in around 2007.

John Williams was a close friend of the plaintiff and worked at 64 Bar and Grill, where in around March 2010 he was appointed general manager.

He gave evidence that the Plaintiff had showed him a copy of the promissory note.

In his witness statement the plaintiff said that he told the defendant that the source of the $200,000 was money he had earned from the sale of his 40 percent share in Ascots restaurant in 1999.

He stated that he had placed this money in a personal bank account — and that it had been left untouched since.

“In light of the witness statement, one might have expected to see a single withdrawal of $200,000 from the savings account,” the judgment said. “I find that the banking evidence is at best inconclusive.”

The judgment continued: “If this were the extent of the Plaintiff’s evidence then I would have dismissed his claim. However he called a further witness, Kevin Bean, the attorney who had carried out the conveyance of the Property ...

“Mr Bean said that the Plaintiff had instructed him to draft the promissory note and had paid him to do so. He said that the note was for $200,000 because it represented a loan in that amount from the Plaintiff to the Defendant ...

“He said that to his recollection the Defendant signed the promissory note in his presence. This was at the chambers of the law firm where Mr Bean worked. He said that he no longer had a signed copy of the promissory note. The signed copy was kept for safe keeping in chambers until he ceased to work there. Then the Plaintiff came to chambers and collected the file together with the note.”

Setting out his findings, the judge stated: “In reliance on the evidence of Mr Bean, I am satisfied that the Defendant did execute a promissory note for $200,000 in favour of the Plaintiff, and that he would not have done so unless the Plaintiff had loaned him that amount. I am also satisfied that the note was delivered to the Plaintiff but that it is no longer in his possession, either because it was lost, most likely in the upheaval of removing offices, or because it was in the files that were removed by Mrs Trott. I am therefore satisfied that there is a reasonable explanation for the absence of the note. Were it still in the Plaintiff’s possession, I have no doubt that he would have produced it.”

He continued: “I am satisfied that the demand has been made within a reasonable time of the note’s endorsement.

“I am also satisfied in light of Mr Bean’s evidence that the requisite stamp duty has been paid on the promissory note.

“I therefore find that pursuant to the promissory note the Defendant should pay to the Plaintiff the sum of $200,000.

“I have not heard argument as to interest and give counsel leave to address me on that topic. My provisional view is that interest should be payable on the sum of $200,000 at the rate of 4 percent per annum from 3rd September 2003 to the date of judgment, and at the statutory rate of 7 percent per annum from the date of judgment until judgment is satisfied.”

Craig Rothwell, Cox Hallett Wilkinson Limited, acted for the plaintiff and Simone N Smith-Bean, Charter Chambers, for the respondent.Vi

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Published May 08, 2013 at 11:15 am (Updated May 08, 2013 at 11:14 am)

Vigilante wins judgment against ex-business partner

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