COA dismisses Nygard’s contempt appeal

COA dismisses Nygard’s contempt appeal
Canadian fashion mogul Peter Nygard. (FILE PHOTO)

NASSAU, BAHAMAS — The Court of Appeal has dismissed billionaire Canadian fashion designer Peter Nygard’s application for leave to appeal his contempt conviction.

Costs were awarded to Coalition to Protect Clifton Bay, one of six intended respondents in the matter.

The contempt matter arose after Nygard failed to comply with an order preventing work on his cay while the case was pending.

“At the time of this writing there was a fourth such application before another justice which resulted in another finding of contempt in the intended appellant,” the appellant court noted.

In July 2018, Justice Rhonda Bain found Nygard guilty of breaching her June 2013 order prohibiting him from engaging in any dredging near his property.

He was previously fined $50,000 for breaching her injunction in late 2014.

Nygard paid the fine before the deadline.

Failure to do so would have resulted in 14 days in prison.

In its ruling handed down on November 1, the appellate court noted Nygard filed a notice of appeal against orders of contempt made against him in the Supreme Court and later filed a notice of motion seeking leave to appeal out of time.

The application for leave was heard and struck out as the application had not yet been made in the lower court.

However, the Court of Appeal said, in its discretion, it allowed the appeal to remain until the intended appellant’s application for leave was heard and disposed of in the court below.

In its ruling, the appellate court dismissed the appeal with costs to the intended sixth respondent “fit for two counsel” and such costs to be taxed if not otherwise agreed.

“We have determined that the intended appellant required leave to appeal before filing notice of appeal motion,” read the ruling.

“The intended appellant was required to demonstrate that he had received leave to appeal from a Justice of the Supreme Court or that his application for leave had been refused in the court below. In the event leave was refused, he could then apply to this court for leave.”

The ruling added: “The result of failing to secure the necessary leave meant that the purported notice of appeal motion was liable to be dismissed.”

Nygard was named as the intendent appellant.

Former Prime Minister Perry Christie is named as the intended first responded.

Other responds include, Coalition to Protect Clifton Bay; Philip Brave Davis, in his capacity as the minister of works and urban development in the former administration; Glenys Hanna-Martin in her capacity as the minister responsible for ports and harbours; the Town Planning Committee; and attorney Keod Smith.

Justices Sir Hartman Longley, Jon Isaacs and Stella Crane-Scott ruled on the matter.

In the ruling, Isaacs said the appellate court on October 1, 2019, dismissed the notice of appeal motion filed without leave on August 7, 2019, appealing Justice Bain (now retired) decision delivered on June 29, 2019, that Nygard was guilty of contempt.

He wrote: “We had already by a judgement delivered by the president, Sir Hartman Longley on July 11, 2019, dismissed the intended appellant’s application for leave to appeal, but had left the door open for him to again approach the court once he had taken the necessary steps in the court below to obtain the required leave.”

Nygard, who owns ‘Nygard Cay’ at the western tip of the island, was accused of enlarging the size of the cay by unauthorized means, and of failing to comply with necessary statutory procedures to artificially increase the land area.

However, the Canadian fashion designer maintains he had received requisite permits for work done on the cay.

As it relates to the enlargement of land, he made the case that it resulted from natural buildup of sands and other materials, and as such he required no permission.

Coalition to Protect Clifton Bay filed for a judicial review of proceedings challenging the matter.

The court noted that through a “series of legal skirmishes, the conflict between the parties has dragged on interminably in the courts”, involving numerous judges in various applications, all of which did not advance the determination of the pivotal issue in the case.