The Tribune

By LAMECH JOHNSON

Tribune Staff Reporter

ljohnson@tribunemedia.net

CANADIAN fashion mogul Peter Nygard was convicted of contempt of court and fined $50,000 by a judge yesterday for breach of the Supreme Court’s order concerning illegal dredging near his property in Lyford Cay.

Last night, a spokesperson for Nygard said his team disagrees with the judge’s ruling, adding that while Nygard paid the $50,000 fine before the specified deadline, he will appeal the ruling.

If the fine was not paid by March 21, Nygard faced 14 days in prison.

He was further ordered to remove the excavated sand and return it to Jaws Beach by April 7 or face additional fines.

Justice Rhonda Bain also awarded legal costs to Save The Bays (STB), the local environmental group which has brought several judicial review cases against Nygard over offshore construction works allegedly carried out in the absence of necessary permits and approvals and which have resulted in the near doubling of the size of his property. According to one estimate of the 27 days in court, the costs could be near $1m.

The ruling by Justice Bain followed an unsuccessful application by Gia Moxey, an associate of Elliot Lockhart, QC, and lead counsel for Nygard, to have the ruling on yesterday’s committal proceedings adjourned until May as the Lyford Cay resident did not want the ruling to be handed down in the absence of Mr Lockhart, whose mother died on Sunday.

Mr Nygard’s calendar, according to Ms Moxey, was booked out for several weeks and he could not attend court at an earlier date, even after Justice Bain allowed a recess to determine an earlier date for the matter to render the decision given Mr Lockhart’s personal circumstances.

Justice Bain, in light of Ms Moxey’s insistence that the matter could not be heard until May, rejected the request for an adjournment and handed down her decision on an application to commit the Lyford Cay resident to prison after it was alleged that he engaged in dredging activities off the coast of his Nygard Cay home in defiance of a court order.

If Nygard fails to return the excavated sand by April 7, he will face an additional $50,000 and a $1,000 fine for each day this subsequent order is not carried out.

An injunction against such activities was handed down by Justice Bain on June 13, 2013. It is alleged that Nygard violated this in December 2014.

Appeal

Despite the ruling, Nygard has maintained the actions in question were in accordance with a government issued permit.

“We respectfully disagree with the judge’s ruling and plan to appeal the decision, although we have paid the initial $50,000 fine in advance of the March 21 deadline, as required by the court,” a statement from Nygard’s US public relations representative, Sitrick and Company, said last night.

“It remains our contention that the removal and stockpiling of sand from the Nygard Cay marina was carried out in good faith in full accordance with the conditions of a government issued permit. The permit was issued to Nygard Holdings Ltd, and its duly authorised representatives caused the lawful removal of obstructions to the marina. The permit was issued by the government after the injunction was in place and we had no reason to believe that the permit was invalid or that the government had issued it without proper authority.

“We also respectfully disagree and plan to appeal the order to move the stockpiled sand to Jaws Beach. While the original government permit required the removed sand to be placed on Jaws Beach, the government amended its requirement to allow the sand to be stockpiled in the absence of any evidence whatsoever that the sand deposited in Nygard Cay’s marina was coming from Jaws Beach. There was no evidence presented in court showing that any sand removed from Nygard Cay’s marina since the injunction had migrated from Jaws Beach, therefore we believe there is no justification for requiring the sand to be moved to Jaws Beach,” the statement said.

Arguments

In closing arguments on February 27 in the Supreme Court, STB’s lead lawyer Fred Smith, QC, told the court that clear evidence had been presented, in the form of photographs and witness testimony, proving that for a period of nine days in December 2014, Nygard periodically dredged the sea bed at Simms Point/Nygard Cay in explicit contravention of the court order.

He claimed that Nygard has not denied that he was fully aware of the terms of the injunction and therefore knew he was breaching it by conducting such activities. Mr Smith argued that the dredging was clearly authorised by Nygard, as it was carried out on his property and, at times, under his supervision.

In his closing arguments before the judge, Mr Lockhart told the court that a permit to dredge the sea floor was granted to Nygard Holdings Ltd and not Peter Nygard in October 2014.

Therefore, he argued, and in the absence of any definitive evidence to the contrary, the court should assume that the company, and not the individual, carried out the dredging complained of in STB’s application. Peter Nygard and Nygard Holdings Ltd, Mr Lockhart stressed, are separate entities.

He added that no evidence had been adduced to prove that Nygard was personally responsible for the dredging which took place off the coast of his property.

Mr Smith branded this an “absurd” argument which “defied logic” as it would allow any individual, prohibited by the court from undertaking certain activities, to simply carry them out under another name.

In her 41-page ruling yesterday, Justice Bain noted that “from the evidence, it was beyond a reasonable doubt that the fifth respondent (Nygard) instructed Melissa Hall to apply for a permit.

“That after the permit was granted and revised the fifth respondent allowed the dredging to take place. The fifth respondent was photographed observing the dredging taking place. The fifth respondent was heard berating one of the workers,” the judge noted.

“The court holds that the fifth respondent authorised the December 2014 dredging. The injunction covered the dredging that took place. The fact that a permit to conduct dredging was granted to the fifth respondent in his name or in the name of Melissa Hall & Co or in Nygard Holdings Ltd is irrelevant as the injunction prohibited any dredging of the sea bed located south of Simms Point/Nygard Cay by the fifth respondent either directly or through his employees and agents.

“The applicants have proved that dredging of the sea bed on the sea bed located south of Simms Point/Nygard Cay did in fact take place,” the judge added.

Justice Bain noted that Nygard “gave no evidence on his own behalf and called one witness, Mrs Melissa Hall, who was instructed to and who did in fact apply for and painted a permit to dredge the property of Nygard Cay.”

“Mrs Hall admitted that she did not receive the instructions from the fifth respondent directly but that she received her instructions from Eric Gibson, the property manager of the fifth respondent,” the judge said, stressing that this fact was undisputed by counsel.

The judge noted that notwithstanding the June 2013 injunction, Nygard instructed Mrs Hall to apply for the permit.

“Melissa Hall, in her evidence, stated that she was not aware of the injunction when she applied for a permit. Mrs Hall stated that as she was applying for a permit for the first time, she met with Mr Michael Major (director of the Department of Physical Planning) for assistance in preparing the application. Notwithstanding this, when the permit was granted October 9, 2014, Melissa Hall on October 23, 2014 made an application to dispose of the excavated material on the existing beach at Nygard Cay which was contrary to condition (j) of the permit granted,” the judge said.

“In response to Mr Major’s email response, Melissa Hall wrote a scathing letter to Mr Michael Major alleging bias in dealing with her client and threatening to appeal to the minister or make an application for judicial review.”

The judge observed that Mr Major “varied the permit and waived condition (j) and advised that the disposal of the excavated material was allowed on the area designated as accretion - on the plan (2) on the plan.”

“Further Michael Major advised that the material is to be stockpiled only and not applied to any beach on your client’s property.”

It was with these facts in mind that Justice Bain found Nygard “guilty of contempt of court in his breach of the injunction filed June 14, 2013.”

Dawson Malone, Romauld Ferreira and Perline Ingraham appeared with Mr Smith for yesterday’s ruling.

Wayne Munroe, QC, Tommel Roker and Clinton Clarke appear for the prime minister, deputy prime minister, minister of transport and the Town Planning Committee.