The Tribune

By NICO SCAVELLA

Tribune Staff Reporter

nscavella@tribunemedia.net

CANADIAN fashion mogul Peter Nygard was yesterday ordered to pay legal costs for Save The Bays after his legal team’s bid to amend certain legal submissions ultimately caused an adjournment of his appeal of his contempt of court conviction last year for engaging in dredging activities off the coast of his Lyford Cay home in defiance of a court order.

Mr Nygard, along with his attorneys Damian Gomez, QC, and Gia Moxey-Lockhart appeared before appellate Justices Stella Crane-Scott, Roy Jones and Milton Evans (acting) yesterday for the substantive appeal of Justice Rhonda Bain’s March 8, 2017 decision.

At the start of yesterday’s proceedings, however, Mr Gomez informed the appellate judges of his intent to seek leave to add certain documents to the record of his client’s matter.

However, Justice Crane-Scott expressed her concern over Mr Gomez adding documents that did not form part of the initial record and did not contribute to the basis of Justice Bain’s ruling, charging that doing so may unnecessarily add to the complexity of the matter.

Fred Smith, QC, lead attorney for Save the Bays, in noting Mr Nygard’s appeal has been somewhat of a “moving target,” also indicated to the court that on Tuesday, his legal team was served with a motion to re-amend Mr Nygard’s notice of appeal.

In light of the aforementioned, Mr Smith suggested Mr Nygard’s legal team would not be prepared to proceed with the substantive appeal yesterday. Mr Smith further submitted while STB was not objecting to Mr Nygard’s intent to amend the grounds contained in his notice of appeal, if leave is granted for them to do so, STB would in turn not be prepared to proceed.

Justice Evans observed aloud that based on the submissions from counsel, it would be best if the parties  adjourned and put their respective houses in order.

The matter was consequently adjourned to a later date, with the costs of yesterday’s proceedings being awarded to STB as a result Mr Nygard’s application to re-amend his notice of appeal, which ultimately caused the delay.

On March 8 of last year, Mr Nygard was convicted of contempt of court and fined $50,000 by Justice Bain for breaching a June 14, 2013 injunction prohibiting him from engaging in dredging activities at his Simms Point/Nygard Cay property.

If the fine was not paid by March 21, 2017, Nygard faced 14 days in prison. He was further ordered to remove the excavated sand and return it to Jaws Beach by April 7, 2017 or face an additional $50,000 and a $1,000 fine for each day that order is not adhered to.

At the time, Justice Bain also awarded legal costs to 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.

In closing arguments on February 27, 2017 before Justice Bain, Mr Smith told the court clear evidence had been presented, in the form of photographs and witness testimony, to prove 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.

Mr Smith further claimed that Nygard did not deny 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.

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

Mr Lockhart thus argued that in the absence of any definitive evidence to the contrary, the court should assume 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.

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

However, Mr Smith called that 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.

Shortly after Justice Bain’s ruling, Nygard’s press team said it disagreed with the ruling, adding while the fashion designer paid the $50,000 fine before the specified deadline, he would appeal the ruling.

Mr Nygard also 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 after the ruling.

“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.”

Mr Nygard appeared in court for yesterday’s hearing.