October 23, 2012
Lyford Cay billionaire Peter Nygard is appealing a judge's ruling finding him guilty of contempt of court and ordering him to pay a $50,000 fine or be jailed for 30 days for disobeying the court's order pending the hearing of a civil matter involving himself and his billionaire neighbour, Louis Bacon. Mr Bacon is the owner of Point House Corporation, the applicant in the contempt matter that stems from a legal battle between the two men involving a property right of way. Yesterday marked the end of the 14-day deadline that Supreme Court judge Stephen Isaacs, on October 8, gave the Canadian fashion designer to pay $50,000 to the Supreme Court registry or be committed to Her Majesty’s Prison for 30 days.
In addition to the $50,000, which Justice Isaacs said had to be paid to the court within 14 days, Nygard had also to pay, once he received an invoice from Point House Corporation, for the expenses to restore the road to what it was in June before he disregarded the court’s order. However, on Thursday, October 18, Mr Nygard presented a notice of appeal to the Court of Appeal that put a stay on the judge’s ruling until the completion of the appeal hearing concerning the contempt verdict.
Mr Nygard is appealing the contempt verdict on nine grounds. The first basis, according to the document filed in the Court of Appeal, is that the Judge “erred in law and in fact in holding that there was an enforceable and clear undertaking given on behalf of the plaintiff at the hearing on the 13th June, 2012 “ .. ..to preserve the status quo .. ..”pending the hearing of the extant interlocutory applications.”
“Alternatively, insofar as a binding undertaking was given by counsel for the plaintiff at the hearing of the 13th June, 2012, its terms and scope were restricted to the issue of the signage and did not include the acts complained of in paragraphs (2), (3), (4) and (5) of the Notice of Motion filed on the 9th August, 2012 on behalf of the first defendant.” Accordingly, the Judge “erred in finding the plaintiff guilty of contempt by carrying out such acts as alleged by the first defendant,” according to the document. According to the document, in finding Mr Nygard guilty of contempt, “the learned Judge was required to hold that the precise terms of the undertaking had been proved by the first defendant beyond a reasonable doubt.”
“Such a holding by the learned Judge, albeit by implication and not expressed, was wholly inconsistent with the admissible evidence before the court and the exchanges between counsel and the learned Judge. The learned Judge should have found that (i) it was unclear as to whether an undertaking was given at all, as opposed to merely being discussed, and (ii) if given, the precise scope and terms of the undertaking lacked the clarity and certainty to be an enforceable undertaking.” In the last basis for appeal, the issue of the penalty is addressed.
“The learned Judge erred in not giving the plaintiff, through his counsel, at the hearing on the 8th October, 2012, an opportunity to address the Court on the subject of penalties after the learned Judge had announced that he had found the plaintiff guilty of contempt and before imposing penalties on the plaintiff. At that time, the learned Judge made it clear that he was not prepared to hear anything further on behalf of the plaintiff and that he was intent on delivering his decision on the committal application.” Point House Corporation (PHC) sought to have Mr Nygard committed to Her Majesty’s Prison for contempt of court. PHC claimed that Mr Nygard ignored the terms of an order given him by the court at a hearing on June 13.
The basis for PHC’s contempt application was that Mr Nygard did not do as promised, which was to immediately remove the words “To Nygard Cay” from the roadway, refrain from affixing any further signs of any kind on the roadway, and make no further alterations to the state of the roadway area pending the September 4 hearing and decision of the summons filed in the court by both Mr Bacon and Mr Nygard in June. It was claimed that instead, Mr Nygard on June 18, through his workers, altered the roadway area by removing several coral stones and destroying certain plants along the roadway that PHC had owned for more than five years.
It was further claimed that the following day, June 19, Mr Nygard through his servants, altered the roadway area by adding another layer of asphalt to the area in front of the entrance gate to Nygard Cay. Then, on July 14, Mr Nygard reportedly, through his servants, cut away, removed and destroyed the gates owned by PHC and installed posts located on its property. Two weeks later, on July 31, Mr Nygard, through his servants, reportedly caused several large stones to be placed on a section of the roadway that crosses over the land owned by Mr Bacon.
All of these grounds, according to PHC’s application, were done in spite of the orders of the terms given to Mr Nygard in court on June 13. Mr Nygard and Mr Bacon have been battling each other before the courts for the past six years, filing suits and counter suits. Mr Nygard’s lawyer Keod Smith, and Point House Corporation’s lawyer Robert Adams made submissions to the court on September 17 and 19 concerning the contempt issue. Justice Isaacs deferred his decision to yesterday, October 8. Despite the addition of Mr Brian Moree, QC, to Mr Nygard’s legal team, and Mr Moree addressing the court on the issue, Justice Isaacs said that nothing would stop his ruling unless the plaintiffs indicated to the court that they were satisfied with it. Mr Adams then told the court that, notwithstanding his previous discussion with Mr Moree, the plaintiffs came to hear the court’s ruling.
After finding Mr Nygard guilty of contempt of court, Justice Isaacs then ordered Mr Nygard to be committed to Her Majesty’s Prison for 30 days. The imprisonment would not be enforced on condition Mr Nygard provides “proof that he has paid a fine off $50,000 to the Public Treasury within 14 days of today’s date and he liquidates the restoration expenses incurred by Point House within 14 days of the presentation of the bill, vouched by invoices, for same,” the judge said.
Should Mr Nygard fail to comply with the court order, said the judge, “and thereby purge his contempt within the times specified, he shall stand committed to the said prison for a term of 30 days and a Warrant of Committal will be issued accordingly.” Costs of the contempt application was awarded to Point House to be taxed, if an agreement between the two parties could not be reached. A date has not yet been set for the Nygard appeal to be heard.
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