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Stay On Nygard Order To Return Sand To Beach Until After Appeal

By LAMECH JOHNSON

Tribune Staff Reporter

ljohnson@tribunemedia.net

A JUDGE has stayed an aspect of her ruling pending the outcome of Canadian fashion mogul Peter Nygard’s appeal of his conviction for contempt of court.

In March, Justice Rhonda Bain found Nygard guilty of contempt and fined him $50,000 for breaching her order concerning illegal dredging near his property in Lyford Cay.

The judge had said that if the fine was not paid by March 21, Nygard faced 14 days in prison.

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

Justice 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.

Though Nygard had paid the fine, he challenged the conviction to the Court of Appeal on the same day the ruling was handed down.

However, he did not seek a stay concerning the order to return the excavated sand.

In a 14-page judgment handed down on Thursday, May 11, the judge exercised her discretion to stay the effect of that order pending the determination of Nygard’s appeal.

In citing discretionary powers vested by Section 16(3) of the Supreme Court Act, the judge noted: “The court has to consider whether there is a risk of injustice to one or other parties if it grants a stay.

“An order for stay of execution pending an appeal is only granted in exceptional circumstances. The grant of stay is in the discretion of the court after it has taken all the circumstances into consideration. The court is of the opinion that if the court grants the orders as prayed for in the notice of motion, the appeal would be nugatory. If the order prayed for in the notice of motion is granted, the sand would have been removed and the fifth respondent would have paid additional costs of the independent quantity surveyor and the coastal engineer.

“Taking all the factors into consideration, the court grants a stay of paragraph 131 of the ruling no.16 pending the determination of the appeal to the Court of Appeal. The court finds that even though it has the power to make orders as prayed under the notice of motion, it would be more appropriate, taking into consideration the circumstances of the case and the nature of the orders prayed for, to stay the proceedings pending the determination of the appeal,” her ruling concluded.

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 a 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, 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.

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 that 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 handed down on March 8, 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.”

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