By LAMECH JOHNSON
Tribune Staff Reporter
DREDGING activity would not have occurred on or around Nygard Cay without permission of the property owner, Canadian fashion mogul Peter Nygard, a Supreme Court judge heard on Friday.
Committal proceedings for Mr Nygard began before Justice Rhonda Bain concerning his alleged breach of an order during an ongoing judicial review to determine whether the fashion designer had illegally increased the size of his property.
Mr Nygard was present in the Ansbacher House courtroom when his lawyer, Elliot Lockhart, QC, made an application for the Lyford Cay resident to be excused from the scheduled proceedings until January 23, 2017, when a decision is expected in the matter.
The request was granted and Mr Nygard was allowed to leave as Mr Lockhart cross-examined the head of a security consultancy firm that conducted surveillance of Nygard Cay in December, 2014.
A recent site visit to the property was also conducted on October 3 by the judge, officers of the court and a delegation from Save The Bays.
Mr Lockhart asked the security consultant if he had seen a dock at Nygard Cay to receive yachts and, when told yes, asked him to describe it.
"It was an area near/on the water that appeared to be from the sea side going north and that is where one can tie the boat," the private investigator said.
The witness said he could not recall the exact date surveillance was conducted but said it was for more than a week.
"Did you inform yourself, in the course of your investigation, as to how long that area had been there?" Nygard's lawyer asked. "I did not" the private investigator said.
"That's your first mistake. I suggest that to you," Mr Lockhart said. The witness agreed with the suggestion.
"Are you able to tell us the depth of the water before the dock was constructed?" the lawyer asked. The witness said no.
"Do you know anything about this area concerning the seabed in so far as the construction of the dock?" Mr Nygard's lawyer probed. The private investigator said no.
The witness said he could not speak to permission being granted for work to be done, nor could he say if there were any terms or conditions affixed prior to and at the time he was conducting the surveillance.
"So you can give us no particular information about Nygard Cay of an historical nature?" the lawyer asked. "No I can't," the witness said.
"Mr Nygard was in here earlier and you saw him leave. Did you see Mr Nygard dredging at anytime?" the lawyer probed. The witness said no.
He was asked if he knew the individuals who were doing the dredging. He said he did not.
Mr Lockhart asked the witness if he undertook any investigations subsequent to his surveillance conducted in December, 2014. The private investigator said no.
"You stand by what you said in your affidavit?" the lawyer asked. The witness said yes.
Mr Lockhart asked for the consultant to be allowed to read all 12 paragraphs of his affidavit into the record. The application was granted.
"When you speak of dredging taking place, did you discover who was responsible?" Mr Lockhart asked. The witness said no.
"If there was, in fact, any dredging going on?" the lawyer suggested.
"There was dredging going on," the security consultant said.
"Using this courtroom, what's the size of this barge you observed?" the lawyer asked. "I'd say it was four of the tables the attorneys are sitting at put together," the witness said.
"Do you know who moved the accumulated dredged sand?" Mr Lockhart asked."No, I do not know them," the witness said.
"Did you inquire who drove that pay-loader?" Mr Lockhart asked. The witness said he did not.
"Do you know who was responsible for their presence there?" the lawyer asked. The investigator, again, said no.
"Are you familiar with Nygard Holdings Ltd?" the lawyer asked. "No, I am not," the witness said.
Mr Lockhart asked for the security consultant/private investigator to be shown the "executive summary" attached to his affidavit.
"Beyond what's contained in this affidavit, is there any further evidence obtained by you?" Mr Lockhart asked. "My evidence is in my affidavit," the witness said.
"Who is the owner of Point House? Did you determine that in your investigation?" the lawyer asked. The private investigator said yes.
"Where is Point House in relation to Nygard Cay?" Mr Lockhart asked.
"In the absence of my surveillance notes, it's east of Nygard Cay," the witness said.
"Did you appreciate there's a canal leading from east of Nygard Cay into the seabed area?" the lawyer asked. The security consultant said yes.
"How did you connect these individuals and confirm they are Nygard's men?" the lawyer further probed.
"I concluded they were on his property providing a service. They were operating on a property and obviously they would have had to have permission to be on that property," the witness said.
"Did you ask him what he was doing on/or around Nygard property?" the lawyer asked. "No, I did not," the witness said.
The proceedings continue on Monday.
Save The Bays’ battle with Mr Nygard over the construction/development activities at his Lyford Cay home stem from allegations that the activities have led to substantial growth of the property.
The group claims that the Lyford Cay resident has almost doubled the size of his property, from 3.25 acres to 6.1 acres, since he acquired it in 1984, by allegedly reclaiming Crown land from the sea. The advocacy group has alleged that Mr Nygard achieved this without the necessary permits and approvals, claims that have been denied by the fashion designer.
In 2015, Justice Bain was asked to recuse herself from committal proceedings involving Mr Nygard through a notice of motion filed in the Supreme Court by his former lawyer on the grounds of bias. However, in January, Justice Bain said Mr Nygard had not proved there was evidence of bias or apparent bias towards him and found the accusations to be “scandalous”.
The Court of Appeal, in June, affirmed Justice Bain’s rejection of the application in an appeal of the decision by the Lyford Cay resident.