Construction company Datem Inc. will pursue a landmark claim of nearly P900 million from Megaworld even as the embattled realty giant appealed for a motion to lift a Writ of Preliminary Attachment or WPA on five development projects.

Datem, in a statement sent to DAILY TRIBUNE, said: "Whether the WPA is lifted or not, this does not affect the merits of the principal case. Bringing this dispute to the proper forum is necessary to protect our rights and those of our stakeholders."

Branch 105 of the Regional Trial Court of Quezon City denied the Megaworld plea due to a technicality, but its lawyers were given a week to resubmit their petition.

The WPA covered the following assets: Uptown Parksuites Towers 1 and 2; Eastwood Global Plaza corporate tower and luxury residences; One Le Grand Tower; 18 Avenue De Triomphe; and Clark Green Frontier.

To recall, Datem elevated its legal dispute with Megaworld to the local stock exchange regulator — a move the construction firm said was necessary to finally settle millions of pesos in unpaid projects.

Acting on the WPA, Court Sheriff IV Ferdinand M. Peralta last Friday served a summons at the Philippine Stock Exchange or PSE.

The PSE is the governing body in charge of the country's capital market, which includes listed companies such as Megaworld.

Megaworld banks, such as the Land Bank of the Philippines, the Philippine National Bank and the Security Bank, also received the notice.

Several other banks of Megaworld, including Asia United Bank, Union Bank of the Philippines, Bank of the Philippine Islands, Banco de Oro, China Bank, PS Bank, East West Bank, Maybank, Metropolitan Bank and Trust Co. and Rizal Commercial Banking Corp., were issued notice of garnishment on 16 November.

In a manifestation, Megaworld prayed that the court would favor the P873,324,248.89 counter-bond issued by Travellers Insurance Surty Corp. on 17 November under Bond No. JCL (3) 00057.

"The defendant (Megaworld) has the right to file for a counterbond. The writ of attachment and counterbond are security arrangements in Datem's favor.

Both are for the protection of Datem and are premised on the initial finding of fraudulent conduct of Megaworld.

Megaworld also appealed to the court to discharge the WPA and recall and/or cancel all notices of garnishment issued and served by Sheriff Ferdinand M. Peralta on various financial institutions.

Megaworld bucks arbitration clause

Datem said it agreed with suggestions of going into arbitration, which was made by Jess Valera, Megaworld independent director, in his column that appeared Tuesday in the Money section of Daily Tribune, wherein he stated: "Datem could have opted to go arbitration whereby both parties can thresh out claims and counterclaims outside of the courtroom rendering a more neutral space for negotiations."

"Yes, arbitration is the ideal venue to settle any disputes," according to Atty. Rufino Policarpio, Datem's legal counsel.

"Arbitration is a special way of settling disputes, which in the Philippines is done through the Construction Industry Arbitration Commission," he added.

However, Megaworld's standard form of contract has a "No arbitration clause," which Datem has been attempting to negotiate to revise for the past few years, Policarpio added.

He said Datem had asked "for an arbitration clause but was repeatedly denied."

"Instead, the contracts are allowed to go directly to litigation if there are any disputes," he added.

All options exhausted

"Datem tried to exhaust all remedies to collect the arrears without resorting to a court case, including the signing of a mutual agreement with Megaworld."

 Policarpio said Datem sent eight letters to Megaworld to remind of the agreement, "but the plaintiff's demands fell on deaf ears."

Megaworld, for its part, reiterated that under Section 12, Rule 57 of the Rules of Court, a WPA enforced should be discharged upon posting a counter-bond.

The company added that Section 5, Rule 57 of the court rules mandated that any party issued a WPA may prevent the enforcement thereof, inter alia, by posting a counter-bond executed to the applicant in the amount equal to the bond fixed by the court in the order of attachment.

Megaworld argued last week that it never evaded any significant payment claims from any of its business partners, despite an ongoing dispute with former contractor Datem.

It added that it incurred additional costs because of Datem's alleged delays in delivering its projects.