The Tribune

• Urge court to appoint receiver to recover debt

• $6m struck off value due to ‘illegal expansion’

• Appraisal: Mayan-themed buildings worthless

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

Environmental activists are urging the Supreme Court to permit a receiver to seize possession of Nygard Cay, which was last valued at $14m, and sell it to satisfy its owner’s Bahamian legal debts.

Save the Bays, in court documents obtained by Tribune Business, is seeking court orders “for delivery-up of vacant possession” and the property’s subsequent sale to settle $412,000 in legal costs and certificates of taxation awarded in its favour and against Peter Nygard.

The unpaid debts stem from successful Judicial Review challenges to Nygard Cay’s “illegal expansion”, which the Canadian fashion designer undertook over several decades in doubling his property’s size despite not possessing the necessary approvals and permits from the government.

Fred Smith QC, Save the Bays’ legal director, told Tribune Business the environmental group had been forced into litigation yet again after Mr Nygard - who is still languishing in a Canadian jail as he fights extradition to the US on sex trafficking and other abuse-related charges - failed to respond to their “civil” requests for payment.

“Mr Nygard is indebted to Save the Bays for these certificates [of taxation] set out in the originating summons, and unfortunately yet again - despite our efforts at being civil and asking for payment - has not paid.

“You’ll recall that last time we had to bring in the bailiffs to take possession of Nygard Cay. Now, in addition to the costs set out in the originating summons, there are ongoing taxation proceeds from other orders for payment of costs, both in the Supreme Court and Court of Appeal.

“We’re taking the route of appointing a receiver who will take possession of Nygard Cay, and who will then be provided with additional certificates as and when they are complete so we can have payment of all the costs, which will be quite substantial.”

Save The Bays, otherwise known as The Coalition to Protect Clifton Bay, launched its bid to seize Nygard Cay, which lies at the northwestern tip of New Providence in the ultra-wealthy Lyford Cay community, on December 14, 2020.

An October 16, 2018, appraisal of Nygard Cay by Robin Brownrigg and Paul Antonas, of Bahamas Realty, concluded that the buildings on what remains of Mr Nygard’s fire-devastated Mayan-themed property “have no value” to any prospective buyer.

Instead, they based their assessment on the value of Nygard Cay’s land alone, pegging this at $14m. This represents a $6m discount that the Bahamas Realty duo allowed for covering the costs associated with restoring the former Simms Point to its original 3.246 acre size and boundaries, thereby removing Mr Nygard’s expansion that nearly doubled its size to 6.18 acres.

Messrs Brownrigg and Antonas suggested a sale could be concluded within 12 months if Nygard Cay was marketed at the suggested $14m price, although this assessment was given prior to the COVID-19 pandemic.

“The land area was expanded illegally without government permission over many years through the construction of groins, seawalls, gabions, barns, pylons etc to develop beautiful beach lines around the property,” the Bahamas Realty duo wrote.

“The land size increased from its original size of approximately 2.59 acres when it was purchased by Nygard in 1984 to approximately 6.18 acres with the reclaimed section representing approximately 3.59 acres. The reclaimed section encompasses a man-made lagoon on the northern side of the property and extensive beach on the southern side....

“Government has requested that Mr Nygard remove all illegal structures and restore the coastline to its original form. The cost to do this was estimated to be approximately $2.7m in 2009 by Tycoon Management and Bahamas Marine Construction, and would probably be in the region of $6m today.”

Messrs Brownrigg and Antonas added that the “structural soundness” of Nygard Cay had been impacted by the November 1, 2009, fire, and said: “The property would be next to impossible to market for sale since the unique and questionable architectural design is in contrast to the high standard of architecture and development found in Lyford Ca,y and particularly along the peninsula of Simms Point or E. P. Taylor Drive in the immediate vicinity.

“The appraisers have therefore given no credence to the value of the structures on the property today, and have concentrated mainly on the value of the land as it was pre-construction and prior to the reclaiming of land illegally.

“Due to this property being virtually unsellable in its current state, it would need to be restored back to its original state when it was purchased in 1984. The land must also be legally restored to its size and shape in 1984. The cost to do this is estimated to be approximately $6m. The current market value is therefore $20m minus $6m with the ‘as is’ market value being $14m.”

It is unclear whether COVID-19 will have significantly altered this appraisal value, but Joe Darville, Save the Bays executive chairman, said in a February 10, 2021, affidavit that the group remains steadfast in seeking to recover around $2m in legal costs awarded to it and against a combination of Mr Nygard, his attorney and the Government.

“Save the Bays has an unblemished record over the last almost eight years in bringing successful Judicial Review proceedings against government and public agencies for their actions, inaction and decisions in relation to unregulated development in The Bahamas. This is a matter of public record,” Mr Darville alleged.

“The costs awarded to Save the Bays in the actions listed..... amount to many millions of dollars. Some bills have been taxed and paid, some remain untaxed and others have been taxed and are subject to negotiations for payment or enforcement proceedings.

“There are many separate costs orders against government respondents, Peter Nygard and attorney Keod Smith in the actions listed that remain unpaid. Peter Nygard remains indebted to Save the Bays on a number of Certificates of Costs referenced by action numbers. Save the Bays is in the process of executing for payment thereof,” he continued.

“Mr Nygard has been ordered to pay the costs of Save the Bays in more actions in which taxation proceedings are ongoing, and/or where bills of costs are being prepared for taxation. Again, these are also in the public domain.”

“Keod Smith, a senior member of the Bar of The Bahamas, likewise remains indebted to Save the Bays on two certificates of taxation of costs,” Mr Darville added. “Save the Bays is in the process of executing for payment thereof. Copies of the two certificates for $111,500 and $263,000, totalling $374,500 with interest accruing at the statutory rate, are exhibited.

He said enforcement proceedings have also been launched against the Government to collect $1.387m in taxed legal costs awarded over Judicial Review challenges involving unregulated development at Nygard Cay.