First Plaintiff Second Plaintiff v First Defendant Second Defendant Third Defendant Fourth Defendant

212 On 17 September 2007, Brearley sent an email to Clyde-Smith attaching the draft SPA for Plot D17.[757] Brown's evidence was that this was a standard agreement and that it was "the first step in finalising the terminology".[758] Brown also agreed during cross-examination that with this SPA, Brown was "on the way to securing D17, on Sunland's behalf"[759] and that at this time he was aware of 1.8 million BUA.[760]

213 Sunland pleaded that on or about 26 September 2007, Hanley retained Sinn and instructed him:

(a) to prepare an agreement identical to the Prudentia Agreement, except that it would be expressed to be between SWB and Hanley;[761]

(b) that such agreement would take the place of the agreement between Prudentia and SWB referred to in paragraph 30.1 of the Second Further Amended Statement of Claim;[762] and

(c) to write to Sunland and SWB asking them to agree to discharge the Prudentia Agreement and replace it with an agreement between SWB and Hanley on terms otherwise identical with the Prudentia Agreement.[763]

Sunland claims that the retainer of Sinn by Hanley can be inferred from an email from Sinn to Brown on 26 September 2007[764] advising that a company had been incorporated in Singapore, and attaching a draft agreement with Hanley. Brown's evidence was that he understood that the money, the "Consultancy Fee", was to be paid to Hanley for taxation reasons (since it was a Singapore company) and that Reed wanted the money to remain offshore for further investment.[765] Brown said that he forwarded a copy of this email on to Clyde-Smith and then discussed this with her and Abedian, but cannot recall details of the discussions.[766] Abedian's evidence was that he thought that the change from Prudentia to Hanley was made for taxation reasons that were important to Reed and Prudentia, but that that was of no concern to him.[767] Abedian's evidence was that it was only important to him that as between Reed, Prudentia and DWF, whatever corporate entity was appropriate gave the consent necessary to allow DWF to sell Plot D17 to Sunland, given that he had been led to believe that Reed and Prudentia had control over the plot.[768] Again, this was consistent with his evidence that all he really wanted of Prudentia and the Prudentia parties was that they would just "go away". The allegations by Sunland with respect to the representations by Hanley are pleaded in terms of its knowledge and adoption of the Representations - in terms of knowledge as at 26 September 2007 after it allegedly retained and instructed Sinn (and when it executed the Hanley Agreement at about that time) and in terms of adoption when it adopted and repeated the Representations as its own by causing Sinn to send the 26 September 2007 email to Brown ("the Hanley Representations").[769]

214 The Hanley Agreement (between Hanley and SWB) was executed by SWB on 26 September 2007.[770] As indicated, the agreement was attached to the 26 September 2007 email which Brown received from Sinn by which Prudentia requested:[771]

"... the cancellation of the existing agreement and the execution of a new agreement on identical terms and conditions to the existing agreement except that Hanley Investments Pte Ltd (an entity incorporated in Singapore which is 100% owned by Prudentia Investments Pty Ltd) will be the other party to Sunland"

Brown's evidence was that he did not really mind whether the money went to Prudentia or Hanley, as he understood, from Sinn's email, that Hanley was wholly owned by Prudentia.[772] Hanley, at least at that time, was a 100% subsidiary of Prudentia and was incorporated in Singapore on 27 August 2007. As is relevant to other issues, there is no evidence of Hanley conducting business in Australia, though Sunland sought to rely upon its retaining Freehills, an Australian legal firm, in this context.[773] Abedian signed the agreement with Hanley and Brown and emailed the signed copy to Reed.[774]

215 It was submitted against Sunland that the reason why Brown, and as I interpolate and understand also Abedian, did not mind whether the fee went to Prudentia or Hanley was because Brown and Abedian knew that Sunland was not acquiring a legal right, or, it follows, a right of any kind, that needed to be transferred from Prudentia to Hanley before it could be transferred from Hanley to Sunland. In this respect, the point was made that there was no document in existence, at least nothing has been produced by Sunland (which would be expected if such a document did exist), transferring any legal or other right from Prudentia to Hanley to put it in a position to convey this right under the "replacement" Implementation Agreement or MOU. It follows that the position as put in Sunland's closing submissions that "... there was an agreement which conferred upon Prudentia a 'right' which was capable of transfer to Sunland" is not established.[775]

216 Brown's evidence was that a payment of the kind made by SWB to Hanley is sometimes described as an "Introduction Fee"[776] and this was, in fact, the descriptor used by Brown in his email to Jason Mahoney (a Sunland employee) on 17 September 2007.[777] Brown's evidence was that he "saw an introduction as a premium"[778] and that in the context of Prudentia and Reed and Och-Ziff, "introduction-premium means the same thing".[779]

217 Sunland claims that in reliance on the Representations, telephone conversations between Brown and Reed on 16 and 17 September 2007, the meeting between Brown and Lee on 18 September 2007, the execution of the Prudentia Agreement and the alleged retainer of Sinn by Hanley (including the email sent from Sinn to Brown on 26 September 2007):[780]

(a) on 26 September 2007 SWB signed a sale and purchase agreement with DWF for the purchase by SWB of D17 for a price of AED 120 per sq ft (and by 1 October 2007, the last of the DWF representatives had signed the SPA for D17);[781] and

(b) Sunland and SWB authorised the release on 1 October 2007 to Hanley's solicitors, Clyde & Co of a cheque that was payable to Hanley for AED 44,105,780 and banked by, and paid upon full to, Clyde & Co on behalf of Hanley on or shortly after 1 October 2007.[782]

218 Reed and the Prudentia parties submitted that this pleading is inconsistent with Brown's evidence that Abedian and Brown (as directors of SWB) resolved, amongst other things, to enter into a SPA with DWF on 18 September 2007,[783] seven days before Brown received an email from Sinn advising of Prudentia's decision to "incorporate a new company in Singapore as part of expanding its business into Asia".[784] It was submitted that it also fails to take into account:

(a) Brown's email to Jason Mahoney (a Sunland employee) copied to Abedian and Sahba Abedian on 17 September 2007 attaching a feasibility for Plot D17 showing a 26% return and AED 590 million profit;[785] and

(b) Brown's agreement during cross examination that this feasibility is based on a BUA of 1.8 million.[786]

Brown admitted that the email he sent to Jason Mahoney on 17 September 2009 is not referred to in his written statement in this proceeding.[787] Brown's evidence was that he met with Clyde-Smith, Brearley and Mark Stewien (who worked with Brearley at DWF) ("Stewien") at the DWF offices on 26 September 2007 to execute the SPA and hand over a cheque for AED 9,642,312.00.[788]

219 The effect of clause 3(c) of the final Implementation Agreement or MOU was that Hanley would not receive the Consultancy Fee until SWB had entered into a SPA with DWF. In this respect, sub-clause 3(c)(2) of that agreement provides that:[789]

"... Hadef Al Dhahiri & Associates are hereby authorised by Sunland to hold the Consultancy Fee and disburse the said Lawyers Trust cheque for the Consultancy Fee to Hanley upon Sunland or the Master Developer [DWF] providing confirmation or evidence to the said Hadef Al Dhahiri & Associates that Sunland has entered into the Plot Sale and Purchase Agreement."

220 It is clear from these provisions that they were included in the Agreement to ensure that SWB had entered into a SPA with DWF before triggering the obligation to pay the Consultancy Fee. If follows that if Sunland believed that SWB was taking a contractual right to acquire Plot D17 from Hanley, then they would not have required the security given by these provisions. In other words, SWB could simply have enforced the right to compel DWF to enter into a SPA.

221 Brown's evidence was that around the time of the extra BUA negotiations,[790] he had a further meeting with Lee, Joyce and someone from Clyde & Co, perhaps Clyde-Smith.[791] Brown's evidence was that during the meeting, the Clyde & Co representative told Lee and Joyce that Sunland could execute a SPA with DWF, but Joyce asked for this to be confirmed in writing.[792] Brown's evidence was that after the meeting, he emailed Reed in relation to a letter from Clyde & Co[793] and that he sent this email after he received an SMS from Reed confirming that a new document had been sent for execution with a Singapore entity and that Reed would call Brown "7am your time",[794] but Brown could not recall whether Reed did in fact call him.[795] In spite of his involvement in the preparation of the letter from Clyde & Co, Brown's evidence was that he only saw the letter from that firm to Brearley for the first time as a result of the present proceeding.[796] Abedian's evidence was that the email from Reed enclosing the proposed wording of the letter from Clyde & Co to DWF reinforced statements which had been made by Reed and Joyce that Reed had control over the property and that Sunland could not deal directly with the master developer.[797] It must be remembered, however, that the alleged statements were made to Brown and not to Abedian.[798] Abedian's evidence was that the control was the only justification for Clyde & Co to be giving instructions to DWF to deal with Sunland to finalise the SPA and requiring DWF to provide them with a copy of the finalised SPA.[799] On the basis of this evidence, neither the Clyde & Co letter nor the discussions leading to or in relation to it support Sunland's case.

Payment under Implementation Agreement, the MOU

222 The Sunland entities plead that:[800]

(a) the monies paid to Hanley included monies transferred by Sunland from its bank in Australia to Dubai for the sole purpose of paying the Consultancy Fee[801] to Hanley; and

(b) that the monies paid to Hanley were paid to Hanley's solicitors in Dubai.

223 Clyde-Smith's email to Brown dated 21 September 2007[802] states that "The money arrived from Australia yesterday and HSBC have advised that they will transferred [sic] to Hadef tomorrow". The AED 44,105,780 payable under the Hanley agreement ("the Hanley fee") was received by Clyde & Co on 3 October 2007.[803]

224 On the basis of my findings with respect to the claims made by Sunland in this proceeding which are based on allegations of misleading and deceptive conduct and fraudulent misrepresentation, the disbursement of the Hanley fee has no relevance whatsoever.[804]

225 It was submitted on behalf of Joyce that it is unclear what point was being made in the plea regarding statements made by Joyce to Brown and Abedian between March and July 2007 that: "There is no beachfront land left, it has all been sold to secondary developers". It was submitted that it cannot possibly convey any of the three Representations. In any event, as Brown said in evidence, Joyce's statement was true.[805]

226 It was submitted on behalf of Joyce that further evidence that he did not make any of the Representations is provided by the numerous references throughout Brown's prior statements to the effect that he thought it was Och-Ziff who had some sort of arrangement with Nakheel that allowed Och-Ziff to reserve Plot D17.

227 Brown admitted during cross-examination that this was his state of mind.[806] For example, he said, in the course of questioning:[807]

"MR RUSH: 'Reed told us that he had connections in Hong Kong and the USA, US group Och-Ziff, strong investment group, had high-level connections with Nakheel enabling him to reserve this site,' and you put the word 'reserve' in inverted commas. Why did you do that?---Because my recollection at the time was their ability to control the property was really through Och-Ziff."

It was submitted on behalf of Joyce that the fact that this was Brown's state of mind wholly contradicts the allegations that Joyce misrepresented that Prudentia had some legal or other right to Plot D17. It was also submitted that this undermines Sunland's case that Reed made any of the Representations. It appears that Brown later appreciated the inconsistency with his position and evidence that any "control" was in fact exercised by Och-Ziff as he sought to resile from his earlier evidence in response to my questions. In this respect, it is, in my view, an accurate observation as was made in the submissions on behalf of Joyce, that Brown's evidence on this point became "increasingly nonsensical".[808]

228 The documentary evidence does, however, provide consistent evidence of Brown's true state of mind in relation to the involvement or role of Och-Ziff in relation to Plot D17. In his email to Mr Mustafa dated 10 December 2008, Brown made statements to the following effect:[809]

(a) he understood that Och-Ziff may have had a high level arrangement with Nakheel for the development rights on Plot D17;

(b) he asked Brearley, Joyce and Lee whether they knew about Reed, Prudentia and Och-Ziff and all they knew was that there had been discussions at a high level about Plot D17, and Och-Ziff was involved; and

(c) in the end, the Sunland entities agreed a price to "pay Prudentia out", and Sunland then negotiated a sale and purchase agreement with DWF.

Additionally, in his statement to Mr Khalifa, of the Dubai Police dated 22 January 2009, Brown asserted that Reed had told him that Prudentia had "the development rights" over Plot D17, but he then said, in the same statement:[810]

"We understood the company in the USA to be Och-Ziff (I have checked the internet for the spelling), and [Reed] said this company had high level connections with people in Nakheel ... The people at Nakheel said they knew that this plot [D17] was controlled by a group from the USA, and Matt Joyce said he had heard of the Och-Ziff Company, but they didn't know any details" [underlining added in Joyce submissions]

I accept the submissions on behalf of Joyce that this reference to Och-Ziff is completely contrary to Brown's assertion that he thought it was Prudentia which controlled Plot D17. Further, I note that Brown resisted making this obvious concession under cross-examination.[811] Abedian said that he reviewed this statement of 22 January 2009.[812]

229 Additionally, further evidence in relation to Och-Ziff's involvement and Brown's understanding in that respect was provided in Brown's report to the Sunland Group Board of Directors dated 1 February 2009:[813]

"Reed told us that he had connections in Hong Kong and the USA, and the US group 'Och-Ziff', a strong Investment Group, had high level connections with Nakheel, enabling them to 'reserve' this site".

In the course of cross-examination, I asked Brown some questions in relation to his response to questions from Mr Collinson SC on behalf of Joyce in relation to this paragraph:[814]

"HIS HONOUR: But grammatically 'them to reserve' is a reference back to Och-Ziff, isn't it? Are you saying that paragraph is not to be read grammatically?---In my mind, the 'them' is Reed and Och-Ziff.

It doesn't say that?---It doesn't say it exactly - - -

But that's what you say it should have said?---Should have said."

Additionally, in his Brief to Prosecutor in Dubai, Brown wrote:[815]

"Reed told us his company had a relationship with an American group called Och-Ziff, and that they had an arrangement with Nakheel to acquire and develop a plot at Waterfront"

Other examples of evidence to this effect are to be found in his first witness statement:[816]

"During my negotiations with Reed, I formed the view that Reed probably had a contact high-up in Nakheel and that it was through this contact that Reed had obtained control of Plot D17. It seemed a reasonable guess that it was someone high-up in Och-Ziff who was Reed's connection to the contact in Nakheel. I thought that it was possible that the contact could even have been Sultan Ahmed bin Sulayem himself, as I knew that the Sultan made substantial investments around the world. I cannot remember when I first formed this view but comments such as these by Joyce supported it."

Entries in Brown's notebook also support this position.[817]

230 It was submitted on behalf of Joyce that, on this additional basis, Sunland's case fails before one even considers reliance issues. The Representations are premised on the wrong entity, Prudentia and not Och-Ziff, and on a plea of legally enforceable or other rights as opposed to some high-level arrangement between Och-Ziff and senior, unnamed and unknown, Nakheel officials. Whether or not the Prudentia parties did in fact have any agreement with Och-Ziff is not to the point in terms of Sunland's case. If, as Brown said, "[i]t seemed a reasonable guess that it was someone high-up in Och-Ziff who was Reed's connection to the contract with Nakheel",[818] it follows, in my view, that the submissions against Sunland, that the Representations would be premised on the wrong entity, are correct and that its case would, consequently, fail on this basis. In this context, Sunland again relies in its submissions on an internal Prudentia communication to which it was not a party as confirming that Prudentia had no agreement with Och-Ziff.[819] In my view, the contents of this email do not establish the position put by Sunland, and are at best equivocal. In any event, I do not regard such communications as relevant to Sunland's claims it not having been privy to them at any relevant time.[820]

231 The representations as pleaded against Prudentia and Reed were allegedly made to Brown. Abedian agreed during cross-examination that "at no time [was he] a party to any conversation between Mr Brown and Mr Reed".[821] His evidence was that "[i]n relation to the content of those conversations, [he] relied totally on Mr Brown to inform [him] about the context and content of them".[822] Abedian's evidence was that:[823]

"HIS HONOUR: You weren't present during the discussions?Your Honour, I wasn't present, but all the documentation from the lawyers that lead to preparing the documentation testified that Mr Brown was accurate.

That's not quite the question. You weren't present so you can't judge between your own observations and recollections of the conversations and what Mr Brown has conveyed to you, can you?Your Honour, the whole documentation based on the information that I received from Mr Brown testifies that his assessment and reporting to me was correct; otherwise it would reflect differently in the documentation."

Abedian also said that he "worked with Mr Brown for a very long time; he would never be inaccurate".[824] Abedian's evidence to this effect was proven wrong by a number of events considered during the trial as indicated in these reasons. Consequently, in light of Abedian's admission that he was not a party to any of the alleged representations, his evidence must be regarded as irrelevant to the question whether the Representations or the Hanley Representations were made as alleged, or at all.

232 Sunland pleads that the Representations were false because:[825]

(a) Neither Reed nor Prudentia had a right to acquire Plot D17 or the land on which it was located;[826]

(b) DWF could (without agreement of Reed or Prudentia or either of them) sell Plot D17 or the land on which it was located, and the right to develop Plot D17, to Sunland or any other person;[827] and

(c) It was not necessary for Sunland to negotiate with or make a contract with either Reed or Prudentia in order for Sunland to purchase Plot D17 or the land on which Plot D17 was located or to acquire rights in connection with the development of Plot D17.[828]

233 Sunland says by way of particulars that Brown met with Mustafa on 1 December 2008 and that Mustafa told Brown that "[o]ur records show that you could have bought this land from Nakheel. There is no record of Reed or his entity having any right over the plot".[829] Sunland also referred to Brown's interview at the police station in Dubai on 21 January 2009 when Brown was told "the transaction with Reed was unlegal [sic] as Reed did not own the land and therefore could not sell it or receive a premium for its sale"[830] and a search of the Sunland computer system and paper files by Mustafa and others on 26 January 2009 when unnamed officials told Brown the transaction was illegal because Reed did not own the site. Brown's evidence was that Sunland had no idea that Prudentia in fact never had any right or control over Plot D17 until 1 December 2008 when Brown was questioned by Mustafa.[831] Brown also says that at all times until he was advised by the Dubai authorities to the contrary, he believed that Prudentia, or its subsidiaries, had control and rights over Plot D17 based on what Austin, Reed, Brearley, Lee and Joyce had said to Brown and the email exchanges between them.[832] As discussed in detail in these reasons, Brown's evidence to this effect cannot be accepted, having regard to the contents of the various documents that have been examined in detail and on the basis of his evidence during the course of the trial.

234 It was submitted against Sunland that it did not prove a component vital to its claim, namely that the pleaded representations were false.[833] Sunland responded that such a submission failed to address what the Sunland parties submitted were the "admissions" contained in paragraph 21 of the Defences of the Prudentia parties.[834] More particularly, Sunland contended that the defence of the Prudentia parties, at paragraph 21.4, referred to Prudentia as a "preferred negotiator" with DWF and that this contention was never put to Brown or Abedian and, further, that Prudentia relies upon a forged document in paragraph 21.4 of its Defence - namely the letter from Austin to Reed of 10 August 2007.[835] In my view, it is clear that where a defendant, such as Reed or Prudentia, submits that the plaintiff, Sunland, has failed to make out its case, any failure to put a positive assertion from a plea in the Defence concerning evidence the defendant may call in its case cannot be used against the defendant. The defendant, in forensic terms, has no case to make and the focus is on the plaintiff's case, in this instance, Sunland's. In any event, I am of the view that Sunland's assertion is not supported by the evidence.

235 The qualified admissions of the Prudentia parties contained in their Defences are as follows:

(a) Prudentia did not hold a right to acquire plot D17;[836]

(b) DWF could sell plot D17 to Sunland or any other person;[837]

(c) it was not necessary for Sunland to contract with Reed or Prudentia in order to acquire rights in connection with D17.[838]

Each of these "admissions" was subject to the qualification contained in paragraph 21.4 of the Defence which states:[839]

(a) at no material time did they [Prudentia] hold, nor did they represent that they held, an enforceable right in the nature of a conveyance or option or other legal interest in Plot D17;[840]

(b) at no material time did they [Prudentia]hold, nor did they represent that they held, any right pursuant to an executed SPA;[841]

(c) at all material times, the final reconfiguration of ... plot D8B leading to the creation of a new plot named Plot D17 was incomplete and unresolved, as was final approval of the development template and terms of contract of sale in respect of Plot D17;[842]

(d) at all material times, the fact was and Sunland knew, that Prudentia's interest in Plot D17 was as a preferred negotiator with DWF for the right to purchase and develop Plot D17.[843]

236 On this basis, and for the reasons discussed elsewhere,[844] the Sunland submission that "it is uncontroversial that neither Reed nor Prudentia had any 'right' in relation to Plot D17"[845] cannot be sustained. Additionally, the assertion that the defence and paragraph 21.4(d) "... doesn't constitute a denial of the representations pleaded in paragraph 20" [of the Second Further Amended Statement of Claim] and that such representation were "not false"[846] does not survive proper analysis of the pleadings. The Prudentia parties provided Further and Better Particulars of paragraph 21.4(d) of the Defence at the request of Sunland. These Particulars stated in part:

"2.2.2 (a) The phrase 'preferred negotiator' is a description of the fact known to Sunland Group that Prudentia occupied a commercial position in negotiation with Dubai Waterfront for the acquisition of plot D17 in precedence to that occupied by Sunland Group but that such position was not based on, and did not confer, an enforceable right in the nature of a conveyance or option or other legal interest in plot D17 whether pursuant to an executed SPA or otherwise." [emphasis added]

Sunland submitted in its Plaintiffs' Reply to the Supplementary Written Submissions of the Defendants that (paragraph 158):

"Keighran's unchallenged evidence [paragraph 82 of his statement] was that 'There is no concept of a "preferred negotiator" under Dubai or UAE law, either as a matter of commercial practice or a matter of law'."[847]

Further, Sunland submitted in its Plaintiffs' Reply to the Supplementary Written Submissions of the Defendants that (paragraph 155):

"155. ... The term 'preferred negotiator' was referred to in only one question, and Brown responded 'I don't know what you mean by "preferred negotiator"' (T86 L36). That answer was consistent with Brown's first statement at paragraph 279 that:

I did not believe that Prudentia's interest in Plot D17 was as 'preferred negotiator';

I was not aware of any concept of a 'preferred negotiator' in Dubai;

At all times I believed that Prudentia had control or rights over Plot D17;

I did not believe that the 'right to negotiate' referred to in the Prudentia and Hanley Agreement meant that Prudentia and Hanley did not have control over the plot. I believed that they had reached agreement with Dubai Waterfront, that they did have control over the plot and that it was only the price of the plot and the SPA terms to be finalised."[848]

237 The suggestion in the Sunland submissions that the Prudentia parties failed to put their case in relation to the nature of the negotiating arrangement it or they obtained with DWF is, in my view, without foundation. The Prudentia parties' admissions in paragraph 21 are to the effect that Prudentia did not have a conveyance, option, legal interest, or right pursuant to a SPA. Prudentia did not admit that it had no right at all in respect of Plot D17. However the significance of this pleading position crucially depends on what is meant by the term "right"; and given that Sunland is a plaintiff making claims based on representations, as it asserts, in relation to a "right" with respect to Plot D17 it is for Sunland to clearly plead and explain the nature of such a "right". The same applies with respect to allegations of "hold or "control". In spite of this it is Sunland that has failed to make out its case and explain the nature of the "right" or "control" it contended was the subject of the alleged representations. In the course of his cross-examination, Brown prognosticated a "...limited right of negotiation" may be what Prudentia possessed.[849] This evidence of Brown is entirely consistent with the defence of Reed and the Prudentia parties at paragraph 21.4 and the Further and Better Particulars provided by these parties. In summary, it is the position that the failure of Sunland to describe the alleged representation has consequently produced the inevitable result, that Sunland has failed to prove the representation was false.

238 Reed and the Prudentia parties also provided the following Further and Better Particulars which were also the subject of cross-examination:

"2.2.1

(g) ...the limits of the negotiation rights with Dubai Waterfront in respect of Plot D17 held by Prudentia and by Sunland Group were put beyond doubt on 12 September 2007 by reason of the matters alleged in paragraph 24 of the Statement of Claim. Prudentia and Reed will rely on a report by Brown to Reed as to the alleged telephone call referred to in paragraph 24 of the Statement of Claim with such report contained in an email from Brown to Reed dated 13 September 2007, 12:53am, with subject: FW: Waterfront Site D17 and copied to Abedian, the relevant part of which records:

I received a call from Marcus Lee (Matt Joyce's no. 2) and Anthony Brearley (the DWF lawyer) regarding Plot D17. They were at a Marketing meeting on Tuesday night and the rearrangement of the plot was shown and discussed. Marcus and Anthony are now concerned that the Marketing people are likely to try and sell the plot, and they will have no control over this.

They suggest we immediately 'put our foot on the plot' to secure it.

To do this, we need to sign a sale and purchase agreement (SPA ...). [emphasis added]."[850]

This email was also sent to Abedian. As indicated elsewhere in these reasons, the email is entirely consistent with the limited nature of the "hold" or "control" Reed or Prudentia possessed with respect to Plot D17, which is indicated by the evidence. It is also entirely consistent with the nature of the arrangement pleaded by Reed and the Prudentia parties in their Defence and also as contained in the Further and Better Particulars.

239 It was for Sunland to prove that Prudentia or Reed had no "right" over Plot D17. Sunland has called no such evidence.[851] It might well have been thought that Brearley or Mustafa would have provided critical evidence to support such an assertion if indeed it be true (but which on the evidence it could not be). Sunland has not demonstrated by evidence the falsity of the Representations, as best as the Representations as alleged by Sunland could be understood, that were, as Sunland contended, relied upon by its witnesses, Brown and Abedian.[852] Thus, in Sunland's contention that on a "... proper analysis of the pleadings, it was unnecessary for the Plaintiffs to adduce evidence as to the falsity" of the Representations,[853] Sunland has ignored the necessity of proof of a vital element of the allegations put against Reed, the Prudentia parties and also against Joyce.

240 Sunland's case failed to establish its allegations in terms of the Representations or the Hanley Representations. Further the evidence Sunland relied upon evidences no misrepresentation, by words or other conduct, with respect to something in the nature of a "right" of negotiation or a preferred negotiating position on the part of Reed or Prudentia in relation to Plot D17. Rather, the Sunland case evidences that Prudentia did hold such a position in relation to Plot D17. Sunland has failed to adduce evidence which casts doubt on the apparent preferred negotiation position enjoyed by Prudentia in relation to Plot D17 and the evidence shows that Sunland did in fact step into Prudentia's shoes to hold negotiations with DWF and, ultimately, sign a SPA for the purchase of Plot D17.

241 Sunland's closing submissions demonstrate an inability, even in a rudimentary way, to encapsulate the position it relied upon with respect to the Representations. Sunland floundered in describing the basis of its case, referring to Prudentia having "some right";[854] "some right" from time to time morphed into "some control";[855] and there were even at stages "some sort of contract".[856] These inexact descriptions must be considered with the multiplicity of descriptions of the payment ultimately agreed to be made to the Prudentia parties upon the unilateral decision of Abedian to end the joint venture proposal that was being negotiated between Sunland and Prudentia. The confusion continued with Clyde-Smith describing the payment as a "spotter's fee",[857] for Abedian it was payment "...to remove Prudentia from the transaction",[858] and for Brown, amongst other versions, he agreed that it was "... a fee to remove them from the transaction"[859] and an introduction fee for Prudentia to "walk away".[860] Brown also said that he considered the payment "... a fee paid to him for them walking away and handing over their development rights".[861] It was submitted against Sunland that these various descriptions "reveal the fictions which are at the heart of the Sunland parties' case".[862] There is much to be said for this view as the pleading and the Sunland evidence elaborate an amorphous "right" and "control" in development land yet to come into existence in terms which the Prudentia parties did not represent. As submitted against it, Sunland sought "... to contrive conjecture as if inferences were available and where no inference may at law be drawn, so as to now construct an unpleaded scheme which the evidence falsifies. A case such as the one advanced by Sunland, as does any case so serious, the requirement of nothing less than strict and cogent proof upon admissible matters arising from and limited to the pleading".[863]

242 Sunland submitted that the payment made by Sunland was not a "spotter's fee", an "introduction fee" or a "consulting fee". This was, as indicated, contrary to the evidence particularly as Sunland's in-house lawyer, Clyde-Smith, had used terminology such as "spotters fee" and other descriptions inconsistent with this submission had been applied by both Brown and Abedian. Rather, Sunland suggested that a seminal description was provided by Reed in an email to Sinn of 17 September 2007[864] when Reed described the payment as a "consulting fee to walk away". "Walk away with what?", was the rhetorical question posed by Sunland.[865] As submitted against Sunland, it is unclear what point was sought to be made of this; the so-called seminal description of the fee, "a fee to walk away", was also one of the various descriptions used by both Brown and Abedian.[866] If Sunland was in doubt as to what Reed and the Prudentia parties were walking away from and what Sunland believed was obtained as a consequence of payment of the "fee", the issue could have, and should have, been clarified with Brown and Abedian in re-examination. In any event, as discussed previously, it is clear, in my view that Sunland's commercial imperative was to obtain Plot D17 exclusively so that Sunland, and Sunland alone, would enjoy the very significant returns it anticipated on the development of that land.[867] In further support for this submission Sunland made reference to its willingness to increase the sum it was offering to pay to Prudentia, and ultimately Hanley. This does not, however, affect my assessment of the position. The profit Sunland expected to enjoy from the development of Plot D17 remained extremely attractive. In this context the increase in the sum offered by Sunland remained insignificant - both as to the increase itself and the total sum offered, as increased. Sunland also submitted that the absence of "any process of real negotiation where they [Sunland] try and beat Mr Reed or Prudentia down ..."[868] is evidence in support of the proposition it advances. I am, however, of the opinion that this is but further evidence in support of the view I have formed in this respect - namely that acquiring Plot D17 solely by Sunland was such an attractive commercial proposition for it that the money it was contemplating paying to Prudentia, and ultimately Hanley, was insignificant. Again the answer to the, so called, "rhetorical question" is clear - and it does not involve Sunland's allegations, the Representations or the Hanley Representations.

243 In spite of the manner in which the Representations were pleaded, Sunland maintained that it was not necessary for it to establish that the representations connoted an enforceable right by Reed or Prudentia with respect to Plot D17. In this respect, it was submitted against Sunland:[869]

"2.2.8 The Sunland parties maintain that their case does not require the finding that the representation was to the effect that there was a formally binding contract entitling Reed or Prudentia to the plot. Rather, in submissions the Sunland parties contended the alleged representation amounted to what is the vague and undefined ... agreement which conferred upon Prudentia a 'right' which was capable of transfer to Sunland[870].

2.2.9 A right to negotiate is no less a right where conferred in personam between contracting parties in joint venture pursuit of a land development opportunity where one party (Prudentia) allows the other party (Sunland) to negotiate in the proposed venture to secure an assent of their venture. That Sunland would exercise the negotiation rights with DWF was an agreed and central term of the MOU agreements exchanged between them. Such a right conferred in personam is distinguishable from and is in no sense dependent upon Prudentia having an enforceable 'agreement' with DWF in respect to D17 and is not inconsistent with Prudentia having 'a limited right of negotiation'.

2.2.10 The facts show that what Prudentia offered as a funding party to Sunland joint venture model and brought to the table in terms of its hold in respect of a development proposal was sufficient to engage Sunland in negotiation with Prudentia whereby, over time, Sunland could fully evaluate the feasibility of the project and its willingness to enter a JV with Prudentia. A right to negotiate final terms of the SPA, the legal terminology and the planning and timing and technical issue[871] in respect of a plot of land not finally configured and having the status of a design plan is consistent with the terminology and utility of hold over D17 used by Austin (and noted by Brown) on 15 August 2007.

2.2.11 Sunland obtained and exploited that hold as a matter of fact pursuant to Brown's 'put our foot on it' proposal, which Reed accepted ('go for it') and by which he entrusted Brown to secure D17 on the basis that inter alia:

(a) the purchaser can be in the name of Sunland JV Development (BVI) Limited which we have in place already;

(b) we will sign the MOU which will note the agreement to transfer the land to the new co when it is ready.

2.2.12 The MOU 'already agreed' contained no put option. The put option was a unilateral imposition inspired by Soheil Abedian.[872] An agreement on these terms containing a put option would be effective to control not simply D17, but if exercised, would oblige Prudentia to do what neither Sunland or Prudentia had agreed previously, that is to purchase D17 independently. Reed had expressly repudiated that Sunland was obliged to buy the land in an email to Brown on 4 September 2007.[873]

2.2.13 The evidence is, however, that Prudentia accepted this Soheil Abedian inspired turn-about on re-statement of the prior agreed obligation expressed in the MOU that Sunland would provide to Prudentia its feasibility. Brown spoke candidly when he said 'We were well past the fact whether he had a hold or not'.[874] This concession points out how elaborate are the Sunland parties' fictions and how divorced they are from the proved and evolving commercial facts known and understood by the parties at the time of their commercial negotiation.

2.2.14 The Sunland parties' submissions do not reveal what it is that the Sunland parties allege, and have proved, was actually the subject of the representations."

As I indicated previously, I think it is the position that for Sunland to establish its case it was necessary for it to establish the Representations with respect to a legally enforceable right to Plot D17, "contractual" or otherwise - and that those representations, by words or conduct, were in breach of the statutory cause or causes of action relied upon, or satisfied the elements required to establish a cause of action in deceit. Anything less than an enforceable right, on some basis, one might think would lead nowhere in either the statutory or tortious causes of action, in terms of primary liability or loss and damage. In any event the only non-enforceable "right" ("contractual" or otherwise) which Sunland's case conceivably established - particularly having regard to its inability to articulate, at all or consistently, the "right" it was relying upon was that of a "right" to negotiate or a "preferred negotiating position", the latter apparently more consistent with the evidence relied upon (assuming a difference between these descriptors; which, if any, was never explained).[875] If this is the position then this "right" with respect to negotiation was one which Sunland was ultimately able to avail itself of - as anticipated in the Prudentia and Hanley Agreements.

244 On the basis of my consideration of the evidence in relation to the transaction or transactions involving various parties with respect to Plot D17, I am of the opinion that Sunland has entirely failed to establish that the Representations were made by any of the defendants in breach of the statutory provisions relied upon as alleged and consequently the basis of its claims based on misrepresentation, under the TPA and the FTA must fail at the outset. Additionally, this also means that the claim in the tort of deceit must fail as one does not even reach the position of considering whether any representation or representations were fraudulent in the relevant sense as there are, in my view, none to consider which would fall into this category.

245 Further, for the reasons indicated previously, the evidence led by Sunland fails with respect to proof of the Representations or the Hanley Representations, both for the reasons set out above with respect to the Plot D17 transaction and related matters, and also having regard to the admission by Abedian that the representations as pleaded against Prudentia and Reed and the Hanley representations were alleged in circumstances where Abedian was not a party to any of the alleged representations.

246 As I have already indicated, it follows from my findings with respect to Sunland's claims in this proceeding which are based on allegations of conduct in breach of the statutory provisions relied upon and also fraudulent misrepresentation in terms of deceit that the disbursement of the Hanley fee is not a relevant issue.[876] The same applies with respect to allegations made by Sunland that information that may have been confidential to DWF or Nakheel and Sunland was provided by Joyce to Reed or Prudentia without any necessary authority or consent. More generally, the same also applies with respect to Sunland's allegations of a "common purpose" or "joint purpose" involving Joyce and Reed, and the other Prudentia parties.[877]

247 It was submitted on behalf of Reed and the Prudentia parties and also on behalf of Joyce that even if it were held that the Representations or any of them were made out, Sunland has failed to demonstrate the pleaded reliance on the Representations.[878] The same applies to the Hanley Representations. There must, of course, be a causal connection between the conduct of the defendants, or any of them, and the misapprehension on behalf of Sunland as plaintiff.[879]

248 Assuming that there were any relevant representations as pleaded by Sunland (which, for the reasons already indicated, I am of the view that there were not), the extent of any liability of any of the defendants in respect of claimed loss or damage caused by those representations and the extent of any liability of any of the defendants in respect of that loss and damage is dependent upon:

(a) whether Brown and Abedian in fact believed the Representations or the Hanley Representations as pleaded by Sunland; and

(b) if they did believe them, then whether Sunland would have paid the consultancy fee to Hanley, even if they had known the true position.

The defendants submitted that there can be no doubt that Sunland did not rely upon the Representations or the Hanley Representations as pleaded in that it knew at all times that Reed and the Prudentia parties had no legally enforceable right of any kind, proprietary or contractual, to Plot D17. To the extent that Reed or the Prudentia parties may have had some other, non-enforceable "right" that proved either to be of no significance of insofar as such "right" may be described as a "preferred negotiating position" this was a "right" which Sunland was able to obtain, and to its advantage.[880]

249 A broad issue of critical importance was the notion of "control" with respect to Plot D17, which was repeatedly raised by Sunland and its witnesses in their written and oral evidence. Consequently, it was of the utmost importance for Sunland's case that Brown and Abedian give credible evidence about the "control" they thought Prudentia or Reed had over Plot D17, and the basis on which they held that belief.

250 Having regard to the importance of this issue, what is indeed notable throughout the history of this matter, and particularly during trial, is the inability of Brown and Abedian to identify exactly what it was that Reed or Prudentia had that gave them, or either of them, "control" over Plot D17; in other words, the precise nature of the interest that they say they thought that Reed or Prudentia held in respect of Plot D17.

251 It is striking that Sunland did not discover any contemporaneous transactional document, such as any internal email, in which any of Brown, Abedian or Clyde-Smith referred to Prudentia or Reed as having either "control" or some legal right to Plot D17. Rather, when Brown, Abedian and Clyde-Smith do raise the nature of that alleged "interest", it is variously described as an "Introduction Fee", a "spotter's fee" or as Reed having his "foot on the site"; to cite but a few examples, with others referred to below and also in the more extensive preceding discussion of the events of the Plot D17 transaction.[881]

252 The witness statements relied upon by Sunland contain various references to Reed or Prudentia having "control" of Plot D17, but other, inconsistent, statements are also made. Both Brown and Abedian asserted that, if they had known Reed did not have "control and rights" over Plot D17, they would not have dealt with him.[882] In relation to Joyce, Sunland does not even plead that he used the words "control" or "rights" in his dealings with them. Consistently, Brown gave no evidence that Joyce actually used those words in their two relevant conversations. Abedian never spoke to Joyce regarding Plot D17. Similarly, Brown also gave evidence that "nobody" ever used the word "reserve" in relation to Plot D17.[883]

Alleged reliance on representations between 16 August and 12 September 2007

(a) between 16 August and 12 September 2007, Brown relied on the Representations to negotiate on behalf of Sunland with Reed for Sunland (or a related entity) and Prudentia to incorporate a new entity and use it as the vehicle to undertake a joint venture for the purchase, development and sale of units in Plot D17; and

(b) say further that if the Representations had not been made, they would not have entered into any negotiations with Reed and would have negotiated with Joyce (or other agents of DWF) for the purchase of Plot D17.

(a) if he had known at the time of the first meeting with Reed that Prudentia did not in fact control the land but was merely a prospective purchaser who also had the ability to arrange funding for the project, then Sunland would have explored a different joint venture model;[885]

(b) the negotiations would have been very different in those circumstances as Sunland would have been able to pursue the purchase of the land itself, on the basis that if it was unable to negotiate a joint venture with Prudentia providing finance, it could have looked for an alternative joint venture partner;[886]

(c) because Brown thought Prudentia had control of the land, the attraction for Sunland of negotiating a joint venture with Prudentia, rather than simply offering to pay Prudentia a premium in order to be able to buy Plot D17 for itself, was that it seemed that Prudentia was able to fund the land instalment payments.[887]

255 As submitted by Reed and the Prudentia parties, Brown's evidence was challenged and impugned in the course of cross-examination, the results of which are helpfully summarised in those submissions:[888]

"(a) Brown was unable to provide evidence of the so-called control Prudentia had over the land. Certainly he was unable to explain it in terms that demonstrated there was any legal right or entitlement of Prudentia to the land.

(b) At various stages of the Sunland evidence the alleged control was described as:

(i) A hold on the plot, as described by Austin [889]. But Brown did not ask what this meant [890];

(ii) Soheil said hold [means] he had an agreement over the plot but Soheil never explained the nature of this agreement [891];

(iii) Brown's evidence of a conversation with Joyce on 15 August 2007 is no better than that the gist of what Joyce said is that Reed was the contact for D17 [892];

(iv) Brown's evidence of what Reed said to him concerning the issue of so-called control is also vague and imprecise. Reed said (19 August in Dubai) he had the rights or Prudentia controlled the land [893]. Later in evidence Brown said Reed controlled the plot, had a hold on the plot, they were the tones of the conversation [894]. Brown said that this was the style of the discussion [895]."

256 As was submitted on behalf of Joyce, the term "control" is also employed inconsistently in Brown and Abedian's witness statements. In some instances, in those witness statements, it appears to mean that Prudentia had a "legal right to Plot D17", but in other instances, it appears to encompass control in some looser sense. Brown and Abedian admitted that they "did not know the precise terms of that control by Prudentia and Reed".[896]

257 Turning to Brown's evidence in cross-examination, it was submitted on behalf of Joyce that "Brown has not been able to get his story straight in reconstructing his version of events". Continuing, it was submitted:[897]

"... According to his evidence, the 'right' he claims he believed Prudentia held over D17 was one that:

(a) was in respect of a plot that did not yet exist;[898]

(b) was in respect of a plot that therefore couldn't be owned;[899]

(c) may not have been contractual;[900]

(d) might be merely some limited right of negotiation;[901]

(e) was undocumented;[902]

(f) did not arise from a signed sale and purchase agreement (SPA);

(g) did not arise from Prudentia having paid any money against Plot D17;[903]

(h) did not involve any agreement on the price of the land;[904]

(i) did not require cancellation by means of a "cancellation agreement" (with which Sunland was familiar because of its acquisition or proposed acquisition of Plots D5B and A10C);[905]

(j) could expire at some unspecified time on some unspecified basis;[906] and

(k) was one held variously by both Prudentia and Hanley (notwithstanding that Hanley was incorporated on 28 August 2007).

258 The position of a party with respect to land ownership under Dubai property law was, in my opinion, uncontroversial to the extent that it was summarised by Sunland's expert witness, Keighran, as follows:[907]

"...[a] party either has a Contractual Right to land by way of a reservation agreement or by an executed SPA (although I note my comments above about contract formation) or nothing." (Emphasis added in closing submissions on behalf of Joyce.)

259 It was plain during the cross-examination of Brown and Abedian that they both understood that neither Reed nor Prudentia had any binding agreement in respect of Plot D17 and no legal interest in that plot. By way of example:

(a) Brown knew that Plot D17 had not been created and, therefore, was not capable of being "owned" by Prudentia.[908] Brown knew Nakheel owned the Plots that were to be reconfigured to make, amongst others, Plot D17. Accordingly, he knew that, when Plot D17 was "created", it would be owned by Nakheel;[909]

(b) Brown and Abedian knew Prudentia had no SPA, had paid no deposit and did not own Plot D17;[910]

(c) Brown thought that it was possible Prudentia had no more than a right to negotiate;[911]

(d) Brown referred in his 22 January 2009 statement[912] to the transfer of a "right to negotiate ..." which, he admitted during cross-examination, may mean that no legal right to land existed.[913]

Both Brown and Abedian believed (and as the evidence indicates, correctly) that Reed was ahead of them in time and already negotiating with DWF to purchase Plot D17. The negotiating position of Prudentia, hence Reed, with DWF was important and of great value to Sunland, and it appears from the evidence that it was this, and nothing else, which they contracted to obtain; though ultimately the commercial imperative was to obtain Plot D17 for itself, exclusively, so that it did not have to share the anticipated very significant returns on its development.[914] Further, until mid-September 2007, Sunland's "interest" with respect to Plot D17 was as a joint venture partner with Prudentia and not on its own account,[915] though joint venture negotiations were continuing. When the joint venture negotiations faltered in mid-September 2007, it was Abedian on behalf of Sunland who originated the idea of paying Prudentia the fee to get Reed and Prudentia out of the way or, as Brown put it, "so he would 'go away'" and "to remove them from the deal".[916]

260 In his witness statement, Abedian set out his understanding of the right he thought Reed had over Plot D17, as at mid-August 2007, stating that "Reed had control over the plot".[917] Abedian was cross-examined in relation to his notional understanding of "control" in this context. His evidence was that:

(a) "We have in Dubai two different kinds of having the control: 1, it is a reservation agreement, and the other one is a sale and purchase agreement.";[918]

(b) To buy a plot in Dubai is to "control it", and to control it is to "reserve"[919] it; and

(c) Control means to have a reservation agreement.[920]

As has been noted previously, Abedian said nothing about a "reservation agreement" in his witness statement or in any contemporaneous record; and Brown's evidence was that he had never heard of the term.[921] In relation to this evidence, it is convenient to set out the submissions made on behalf of Joyce which, which, in my view, accurately summarise the position:[922]

"322. ... Because Abedian claimed to understand 'control' over a plot to mean that one either had a sale and purchase agreement or a reservation agreement in effect and because he knew that he could not assert that Reed had entered into a SPA for D17[923], he had to assert that he believed Prudentia had entered into a 'reservation agreement'. This is despite the fact that he had given no such evidence in his witness statement. It was just another invention.

323. Incredibly, had it been true, Abedian failed to tell his fellow Board members or lawyers at any time that he believed at all relevant times that Reed or Prudentia had a 'reservation agreement'[924] despite conceding that it would have been an important thing to tell them.

324. Furthermore, when preparing his witness statement Abedian failed to tell his lawyers in this proceeding that he believed there was a reservation agreement in existence over D17.[925]

325. Indeed, if it were true, his evidence in the witness box would be the first time he actually articulated this belief. He also failed to explain how he obtained the 'belief' given that there was no evidence of anyone (whether or not external to Sunland) saying anything remotely consistent to it.

326. Abedian swore that he believed Brown also thought there was a reservation agreement in existence despite being told that Brown had given evidence that he had never heard of a reservation agreement (let alone considered one in existence over D17) and that he never uttered the words 'reservation agreement' to Abedian.[926] Brown also gave evidence that no person ever used the word "reserve" in their dealings with him regarding D17.[927]

327. Abedian could not produce one document or email that supported his contention that there was a reservation agreement in existence in relation to D17 or that he believed Prudentia was party to a reservation agreement in relation to D17.

261 Immediately prior to the purchase of Plot D17, another company within the Sunland Group acquired Plot D5B, which, as indicated previously, was a beachfront plot on the Gulf side of Plot D17. In relation to the Plot D5B purchase, Brown signed three documents to which DWF was a party: a SPA,[928] a cancellation agreement[929] and variation agreement.[930] As indicated previously, the purpose of the cancellation agreement was to cancel the interest of the prior "owner" of the plot immediately prior to the plot being transferred to the Sunland purchaser. It is clear that Brown knew that the usual practice of DWF was to cancel the interest of the previous owner and for the new owner to enter into a new SPA with DWF, as opposed to a transfer of that interest. However, when Brown and Clyde-Smith negotiated the documentation for Plot D17, there was no cancellation agreement.[931] As submitted against Sunland, it is clear that Brown knew that Prudentia had no "right" to Plot D17 that required cancellation. Reflecting again on the Plot D5B transaction, it is noted that Sunland did not immediately pay a deposit for the purchase of Plot D5B following Brown's email to DWF dated 6 December 2006 that contained Sunland's offer to purchase that plot.[932] Brown had thereby laid claim to Plot D5B on behalf of Sunland but knew that Sunland had no legally enforceable right to the plot. As submitted on behalf of Joyce, doubtless, Sunland would have objected strenuously if DWF had offered Plot D5B to some other purchaser in the meantime.

262 Brown admitted that Joyce had told him on 15 August 2007 that Reed had not signed a SPA for Plot D17, or words to that effect.[933] Brown also gave evidence that he believed that to "secure" Plot D17, Sunland needed to sign a SPA.[934] Again, it is instructive to consider the Plot D5B transaction where, when negotiating the purchase of that plot, Brown sent an email to DWF, on 11 March 2007, in which he wrote:[935]

"we are now in advanced discussions with your legal team at Nakheel in respect of the contract, and in reliance of this we are making these payments in good faith subject to finalization of the contracts and the design guidelines which will enable us to finalize exactly what we are buying" [emphasis added in submissions on behalf of Joyce]

Brown admitted that he wrote in this email that DWF needed to act in "good faith" towards Sunland because Sunland had not yet signed a SPA for Plot D5B.[936]

263 Additionally, Sunland paid a deposit to DWF when it purchased Plot D5B.[937] Brown gave evidence in his witness statement of 6 August 2010[938], that he believed that the usual process to reserve a plot was to make some sort of down payment. He confirmed in cross-examination that that was his understanding.[939] With this knowledge, Brown admitted that Joyce had told him on 15 August 2007 that Reed had not paid a deposit on Plot D17, or words to that effect.[940]

264 Another difficulty for the case put forward by Sunland is that Brown thought that, whatever priority existed in respect of Plot D17, it rested with Och-Ziff, not Prudentia. He admitted as much during his cross-examination.[941] Brown wanted to remove Och-Ziff (and thereby Prudentia) from the picture if Sunland could not come to terms on a joint venture with Prudentia. As indicated previously, on the evidence, it appears doubtful that Sunland ever truly wanted to enter into a joint venture and that it did eventually reveal its hand as events unfolded, namely, that it wanted to pay to get Reed and Prudentia out of the way.[942]

265 In my view, the evidence does establish that, as submitted on behalf of Reed and the Prudentia parties and also on behalf of Joyce, both Brown and Abedian were, from the outset, prepared to act knowing that the so-called "control" of Plot D17 by Prudentia or Reed was limited by the absence of a SPA or payment of a deposit. Additionally, they knew that the plot had not been created. Even having regard to all these circumstances, Brown did not ask for and never saw a document or piece of paper relating to such "control", though there was apparently more than adequate opportunity to make inquiries in this respect, whether by way of a separate approach to DWF or as a matter which could have been raised in the course of meetings with senior officers of DWF who, on the evidence, it must be concluded, would have been in a position to respond to inquiries of this kind in an entirely comprehensive and complete way. Additionally, Brown and Abedian must have appreciated the lack of "control" because of the words used by Brown in his email to Reed of 12 September 2007 (the "put your foot on it" email) where he used the words "we immediately put our foot on the plot to secure it".[943] It was clear from the oral evidence of Brown and Abedian that they merely speculated as to the nature of any arrangement involving Prudentia or Reed with respect to Plot D17. They simply did not know "the precise terms" of the "control" of Prudentia or Reed.[944]

266 At no stage did the in-house lawyer for Sunland, its General Counsel in its Dubai branch, Clyde-Smith, describe Prudentia or Reed as having "control" of Plot D17. At no stage did she use words that could be considered consistent with this terminology. Indeed, the contrary was the position, as internal correspondence of Sunland indicates that Clyde-Smith referred to the fee paid as a "spotter's fee".[945] Elsewhere in the evidence led by Sunland, the terminology used to describe the "thing" (to use a neutral term) for which the fee was paid as "some limited right of negotiation"[946] in circumstances where the price of the land, Plot D17, had not been agreed. The effect of no agreement on price was, as Brown agreed in cross-examination, that there was no contract.[947] In this context, the concession that there was no contract can mean nothing else other than that there was no legal right or entitlement on the part of Prudentia or Reed to Plot D17. To add to the confusion, the fee was also referred to as an "introduction fee",[948] which simply serves to reinforce the views I have indicated and the strength of the submissions made on behalf of Reed and the Prudentia parties in this respect to which reference has been made.

267 I have found for the reasons set out previously, that Sunland was not misled or deceived into negotiating a fee with Prudentia or Reed by any misrepresentation by the defendants as to any "right" or "control" with respect to Plot D17. Nevertheless, as I have indicated, even if such a representation or representations were made out, I am of the view that Sunland did not rely on any representation. On this basis, I turn now to evidence in more detail which establishes, in my view, that Sunland decided to pay the fee to remove Reed and the Prudentia parties and to "do the deal" to purchase Plot D17 itself.[949] This evidence is further considered in the context of reliance issues. In this respect, Abedian said:[950]

"There was also some risk that the control by Prudentia and Reed might be coming to an end. In any event, it appeared that Dubai Waterfront was pressing for a SPA."

The earlier evidence of Abedian serves to demonstrate the desire of Sunland to act quickly:[951]

"However, we did not know the precise terms of that control by Prudentia and Reed."

There were two reasons why Sunland had acted precipitously to acquire Plot D17, both of which were unrelated to any representations from Reed, the Prudentia parties or Joyce (even assuming that there were any such representations):[952]

"(a) D17 was important to Sunland because Sunland owned the adjoining plot D5B. Sunland had enhanced the design of D17. Sunland wanted the D17 plot and needed no encouragement to purchase it.[953] The speed with which Sunland acted to secure the plot for itself, after removing Reed, is best demonstrated by the internal emails of Clyde-Smith.[954]

(b) The potential return for Sunland, upon removing Reed from the deal was enormous. Paying Reed to go away with a spotter's fee meant Sunland could attract a new joint venture partner who would pay a premium for the privilege of joining Sunland in a joint venture concerning D17."

268 In his "clear statement" of events which Brown prepared on 22 January 2009 for Mr Khalifa Mohammad of the Dubai police, he wrote: "we understood from Nakheel that we had to have an arrangement with Angus Reed to be able to develop the Plot together."[955] It was submitted against Sunland that this "unremarkable" proposition constitutes a significant admission that Brown well understood what Joyce was referring to in their limited discussions. The passage in the "clear statement" is followed, significantly, by the sentence: "As we couldn't agree on a joint venture with Prudentia, we suggested to Angus Reed that we could pay them a fee and take over the negotiations on the plot with Nakheel".[956] It was clear to Brown that Joyce was concerned about clarity of negotiations given the involvement of both Prudentia and Sunland in developing the same block by way of a joint venture and Joyce's experience of dealing with Sunland in relation to the proposed Plot A10C joint venture. Joyce welcomed the idea of a proven developer like Sunland being involved in Plot D17, but wanted one established and agreed point of contact for any joint venture. As submitted against Sunland, this statement demonstrates, in my view, that Brown never thought that Joyce had instructed him that Nakheel would not deal with Sunland unless it paid some money to Reed.

269 It was submitted against Sunland that Abedian's evidence about the 16 August 2007 email from Joyce to Brown was to be described as "quite extraordinary".[957] In my view, this was an entirely appropriate observation. In cross-examination, Brown commented that Abedian was not a man who kept much paper around him, a comment which I accept does have a "ring of truth" about it.[958] As was clear from the documentary and oral evidence, Brown had a habit of forwarding emails to Abedian that he regarded as important.[959] As was submitted against Sunland, it is relevant and telling that Brown did not forward the 16 August 2007 email to Abedian. I accept that this was because the email was completely innocuous and was not seen by Brown as of great importance at that time or subsequently. Brown did not even remember it in his early discussions with the Dubai Prosecutors. It was only after DLA Phillips Fox involvement through Eames that the email was noticed and both Brown and Abedian decided to give it a significance and meaning which, on the basis of the evidence, documentary and otherwise, of events in August and September 2007, it did not have and was never understood to have had. Additionally, Abedian admitted that no reference to this email was made in the course of preparing Brown's report to the Sunland Group Board, dated 1 February 2009, and he could not explain why, if it was so important to Sunland, it was not mentioned.[960]

270 Abedian was cross-examined in relation to the 16 August 2007 email. The nature and effect of his evidence was the subject of detailed submissions on behalf of the fourth defendant, as follows:[961]

"374. In his cross-examination Abedian acknowledged (as he had to) that the email was never sent to his email address. Nevertheless, he was determined to give evidence that he had seen it and relied heavily upon it. To that end he fabricated a convoluted and fanciful story about a hard copy of the email he kept in his desk. This story fell apart as he was telling it.[962]

375. Brown himself had no recollection of showing the email to Abedian, much less printing off a copy and handing it over to Abedian at a meeting.[963]

376. Similarly, in his witness statement Abedian had given no evidence of being provided with a hard copy of the email that was of such importance that he showed it around the office to his wife and kept in his top drawer thereafter. Nevertheless, this was the story Abedian told in the witness box.

377. Abedian gave evidence that Brown brought in a hard copy of this email for him to see on either 16 or 17 August 2007. Abedian swore he kept this hard copy email in his drawer in his office in Dubai. He also swore that he showed this document to his wife on or around 16 August 2007. If this was not enough he then swore that he showed it to his external local lawyer in Dubai, Mr Bin Haider, after the Dubai authorities started investigating the matter in early 2009 and he also showed it to his internal lawyer, Georgia Carter, at a date that he could not recall. Finally, Abedian also swore that he showed this hard copy document to Joyce's wife, Angela, when she supposedly visited Sunland's office in or around late January 2009.[964]

378. Of course, no well-worn hard copy email was ever discovered by Sunland as being the email Abedian had carefully preserved for years in his top drawer. When questioned about this, Abedian swore that he disposed of the hard copy document when Sunland had an office move in Dubai. When asked, Abedian swore that this office move occurred at the end of 2007.[965] This was, of course, more than a year before the date he had just sworn he had shown the document to three other individuals.

379. Thus, Abedian invented the story of the hard copy email and unwittingly exposed it as a lie. If the matters in issue in this proceeding were not so serious, if Mr Abedian's position at Sunland (a listed public company) was not so senior and if the obligation to tell the truth under oath was other than fundamental, Abedian's evidence might be seen as farcical. However, for all these reasons these lies cannot be so easily dismissed. Further, they are but part of a dishonest scheme by Abedian and Brown to pervert the course of justice in two separate jurisdictions.

380. Abedian eventually realised the mistake he had made and, as with other unhelpful evidence, (such as the meaning of 'house arrest') tried to backtrack and became more evasive and untruthful. This ultimately required the intervention of His Honour[966] to direct Abedian to answer a very simple question regarding the disposal of the hard copy of the 16 August email. Abedian ultimately claimed that he could not recall when he disposed of the email.[967]"

For the reasons indicated in the submissions, I accept that Abedian's evidence in relation to the 16 August 2007 email is quite implausible and ought not to be accepted. For the sake of clarity, it is noted that the reference to the meaning of "house arrest" was or is a reference to Abedian's evidence to the effect that a person whose passport was being held by the Dubai authorities was regarded as being under "house arrest" in Dubai, a situation which Brown found himself in for a period of some months subsequent to the events now being considered.[968] As to the other matters or assertions, these are matters for consideration in other contexts.[969]

271 On 15 August 2007 when Austin allegedly said to Brown that Reed had a "hold on the plot", Brown never asked what that meant.[970] It was submitted against Sunland that this could only be explained on the basis that Brown well understood from the outset that Reed had no rights over Plot D17. Brown's contacts with DWF from June to August 2007 were mainly with Lee, Brearley and Austin and not Joyce.[971] Brown took advice from Lee and Brearley about Plot D17[972] and the evidence indicated an established pattern, on the part of Sunland, of checking the legal position with Brearley.[973] According to Brown's, apparently very careful answer during cross-examination, when Clyde-Smith spoke to Brearley about Prudentia, all he said was that "we should be comfortable with Prudentia",[974] a comment which she passed on to Brown. As submitted against Sunland, this is quite different to the account contained in Brown's witness statement[975] in which asserted that Clyde-Smith confirmed Brearley had said Prudentia had "development rights" over Plot D17. Clearly, Brearley's statement or comment in relation to Prudentia did not amount to confirmation that Prudentia owned Plot D17 or had any rights to that plot, even assuming such a question had been asked. It does, however, appear far more likely that Brearley's comment or statement was a response to an inquiry about Prudentia as a possible joint venture party. None of the defendants are, of course, responsible for this comment or statement by Brearley, even assuming it were to be construed in a manner asserted by Brown. In any event, Brown did not ask Reed for any documents that showed that Reed had a right to Plot D17.[976] This is in marked contrast to the situation when Brown and Clyde-Smith were investigating the purchase of Plots A10C and A3B with DWF where they made numerous email enquiries of Stewien and Brearley to check who owned those plots and the nature of their interest.[977] For example, on 1 July 2007, Brown sent the following email to Lee (copied to Abedian, Clyde-Smith, Stewien and Brearley) regarding Plot A10C:[978]

"We are looking forward to working with you also. In anticipation of moving forward on this site, we need to confirm the Site ownership status. We understand that Sheikh Salah Al-Bassam doesn't have a formal contract on the site yet, but is in the process of Transfer. We have asked for evidence of legal ownership, but it would assist if your legal guys could tell us what we need to effect speedy transfer."

Similarly, on 17 July 2007, Brown was copied in on an email from Clyde-Smith to Stewien (which was addressed to Stewein and Brearley and copied to Lee), in which she wrote:[979]

"We are being placed under considerable pressure from our Seller to complete the transfer as a matter of urgency, they have even suggested that this can occur today. We are happy to facilitate this but of course will be guided by you both as to when this will be achievable.

As you know we have not yet been provided with any evidence of the Sellers right to sell, and we know that you are not yet in possession of the re-sale documents to Bassam for execution by DWF so it would not seem likely.

Can you please advise a realistic timeframe in which you believe the transfer to Bassam will be complete (we appreciate this is difficult to do especially if you are still awaiting documents) and when you expect to provide us with re-sale documents for our review as this will give us a sense of timing in relation to making funds available."

272 It is a reasonable inference, and one which I draw in the context of this and other aspects of the evidence, that Brown and Clyde-Smith made no equivalent enquiries regarding Plot D17 either because they each knew that neither Prudentia nor Reed had any legal interest in Plot D17, or because it was not important to them whether Prudentia or Reed had any such right to Plot D17. In relation to the latter point, in his second witness statement,[980] Brown said that:

"Had Reed said to me that he would not talk to me unless I promised not to attempt to buy D17 directly from Dubai Waterfront, I would not have agreed to that. Had Reed said that to me, it would have flagged to me that Prudentia were just looking for sites as Sunland was, and had no legal rights over D17. In that case, I would not have given up Sunland's ability to purchase D17 directly from Dubai Waterfront. In that case, I would still have been willing to talk to Reed about a JV on a non-exclusive basis, because you never really know what a prospective JV partner may be able to bring to the table" [emphasis added in Closing Submissions of the Fourth Defendant][981]

And also in the same witness statement, Brown said:[982]

"If I had known at the time that Prudentia did not in fact control the land but was merely a prospective purchaser who also had the ability to arrange funding for the project, then we would have explored a different JV model with them. The negotiations would have been very different ..."

Alleged reliance on the representations after 12 September 2007

273 Sunland pleaded that after the 12 September 2007 phone call from Lee and Brearley, which led to the "put your foot on it" email, it continued negotiations with Reed for Sunland to purchase Plot D17 pending final joint venture terms.[983] Further, Sunland pleads that they did so in reliance on:

(b) the 12 September 2007 phone call to Brown from Lee and Brearley.[984]

In light of the evidence which has already been considered in detail, I accept the submissions against Sunland that the assertion of Brown and Abedian that after the 12 September 2007 email, Brown or Abedian still thought that Prudentia or Reed controlled Plot D17 cannot be sustained. It is not credible in all the circumstances discussed against the plain English, Brown's own words, in the email of that date to Reed. In view of the importance of events on and after 12 September 2007 and the "put your foot on it" email, it is helpful to make some further, detailed reference to those events, more specifically in the context of reliance issues.[985]

274 As discussed previously, on 12 September 2007, Brown spoke to Lee and Brearley, two senior executives of DWF, who would have known the legal status or ownership of Plot D17, who told Brown that they had been at a marketing meeting and were "now concerned that marketing people are likely to try to sell the Plot, and they would have no control over this".[986] In view of this, Lee and Brearley suggested to Brown that Sunland and Prudentia should immediately "put their foot on the Plot" to secure it.[987] Brown understood that to secure the plot, Sunland and Prudentia needed to sign a SPA.[988]

275 It must follow that if Brown believed that Reed or Prudentia had a legal interest in Plot D17 (or for that matter any other "right" or "control" with respect to that land), this advice from Lee and Brearley would, having regard to their positions in DWF, have come as a complete surprise. In my view, it is clear that any fair reading of Brown's email, which recorded Lee and Brearley's words, is that Plot D17 was "up for grabs" and available to be sold by the "marketing people" of DWF to any willing purchaser. Brown did accept in cross-examination that a "general explanation" of having to put your foot on the plot would be that your foot was not yet on the plot.[989] It would then follow that Brown would have been asking some very serious and pressing questions of Brearley, Lee and Reed about how such a sale could possibly occur if Reed or Prudentia had "control" or "rights" in respect of Plot D17 if he really believed that Reed or Prudentia (or, possibly more accurately, Och-Ziff) had any such "right" or "control". Brown did no such thing and responded, in cross-examination, that "I can't recall why I didn't ask that" when this was put to him.[990] Instead of asking questions and making enquiries as one might have expected had Brown held the belief he claimed, he quickly prepared a draft email to Reed, for approval by Clyde-Smith, which recounted the conversation and referred to the advice that "we immediately 'put our foot on the Plot' to secure it".[991] Clyde-Smith clearly regarded this draft email as appropriate, as it was, after being sent to her for approval, sent unaltered by Brown to Reed, copied to Abedian.[992] Neither she nor Abedian apparently raised any issue or surprise about it the need to "put our foot on the Plot to secure it". Neither Brown nor Abedian could give any credible explanation as to why they did not raise any concern at this time about the message from Nakheel through DWF that neither Reed nor Prudentia had any "control" or "right" in respect of Plot D17.[993] In my opinion, the only rational and reasonable explanation for this failure to act or inquire is that Brown and Abedian well understood that neither Prudentia, nor Reed, had secured Plot D17 in any enforceable sense and, consequently, did not therefore control it; and nor did they enjoy an "right" with respect to the land on any other basis. In any event, it must also follow that, had they been labouring under any misapprehension in this respect, that this apprehension was clearly and decisively dispelled by this conversation with Lee and Brearley, as evidence by Brown's "put your foot on it" email.

276 Having regard to these and other circumstances with respect to the conversation between Brown and Lee and Brearley on 12 September 2007 and the "put your foot on it" email, I do not accept the argument put by Sunland that a "... compelling reason why Brown did not question the nature of the agreement which he believed gave Reed or Prudentia a "hold" on or "control" over the plot was that he believed that Sunland was dealing with government officials and did not question the veracity of what he was being told".[994] In fact the "put your foot on it email" indicates very clearly that these very government officials were telling Brown that the position was entirely different from that which he said he believed. While the expert evidence of Mr Keighran, an Australian property lawyer who practised in Dubai as a property specialist for five years, which was relied upon by Sunland (and not challenged), is that in the absence of a property register, a party in Sunland's position must rely on the statements from relevant government officials,[995] there is no evidence that Sunland could not have made reasonable enquiries of those officials - a step which it did not take.[996] In any event the "relevant government officials" had made the position very clear adversely to Sunland's claimed belief - as recorded in the "put your foot on it" email.

277 Brown's attempts to explain away the plain words of his "put your foot on it" email were, in my view, contrived to say the least. This is well illustrated by his evidence in response to some queries I raised in the course of his cross-examination, quoted above.[997]

278 There is, as submitted against Sunland, a further, simple, logical inconsistency in Brown and Abedian's "tortured" attempts to explain away the significance of the "put your foot on it" email. Brown's evidence was that Lee and Brearley told him that the risk was that the "marketing people" might try to sell Plot D17 to some other party, a contingency over which Lee and Brearley had no control.[998] Brown's email to Reed records that this risk had arisen because plans for the rearrangement of Plot D17 had been "shown and discussed" at a marketing meeting attended by Lee and Brearley. If, in fact, Reed or Prudentia had some right to Plot D17, then one would naturally have expected that Lee and Brearley would have simply told those who were present at the "marketing meeting" that that was the case and consequently, that the "marketing people" could not sell Plot D17. If that were so, then nobody would have expected that there would be any likelihood of the "marketing people" trying to sell Plot D17 to some other party on behalf of Nakheel. Only if Reed or Prudentia did not have any "right" or "control" with respect to Plot D17 does it make any sense that this risk had arisen as a result of what was happening at the "marketing meeting".

279 It was also submitted against Sunland that Abedian's attempts to explain away the "put your foot on it" email were "even more fanciful than the account given by Brown".[999] On Abedian's version of events, which now included for the first time the notion that a reservation agreement was due to expire and, having conceded that the "we" in the email meant Sunland and Prudentia, he still accepted that immediate steps had to be taken to secure Plot D17. As noted previously, Brown's evidence was that he had not even heard of a reservation agreement at the relevant time.[1000] It is fair to say, as was put against Sunland, that Abedian's evidence in this respect made little sense. My attempts to clarify his evidence and make sense of it, quoted above, yielded little fruit.[1001] In relation to the reference to "the 5%" in the evidence of Abedian, it should be noted that Brown's evidence of his conversation with Lee and Brearley was that they had told him that immediate steps needed to be taken to secure the plot and not, for example, that some present form of security over the plot was due to expire.[1002]

280 The other matter that Brown learned from Lee and Brearley on 12 September 2007 was that the price that DWF would be asking for Plot D17 would be AED 120 per sq ft[1003] and not AED 135 per sq ft, as had previously been indicated to him by Reed.[1004] As the evidence indicates, because no price had been agreed between Prudentia or Reed and DWF, Sunland must have known that there could be no binding contract or right over Plot D17 in favour of Reed or Prudentia.[1005] Brown's evidence in cross-examination, quoted above, is illustrative of this.[1006]

281 On 17 September 2007, Brown sent an email to Mr Jason Mahoney, an employee of Sunland, in which he attached a feasibility study for Plot D17 based on Sunland buying the site itself and "paying Reed a [sic] Introduction Fee of AED44m, and they walk away".[1007] It was submitted against Sunland that Brown had implausibly, and dishonestly, tried to assert in cross-examination that an Introduction Fee was consistent with Reed or Prudentia having rights over Plot D17,[1008] but, later, when discussing introductions to opportunities, had no trouble understanding the true nature of an introduction fee in that context.[1009] When the investigations by the Dubai authorities commenced in late 2008, Brown's initial description of the fee was much the same. In his first meeting with Mr Mustafa, Brown stated that Sunland paid "Reed's company a fee so he would 'go away'" and that "it was like a premium to remove them from the deal".[1010] Brown also referred in the 22 January 2009 letter to the transfer of a "right to negotiate ...", which he admitted during cross-examination may mean that no legal right to land existed.[1011]

282 Sunland sought to rely upon the use of the word "premium" in various communications between Reed and Clyde & Co (Dubai legal advisers to Prudentia in 2007) in the context of a potential "on-sale" and then to draw the implication that this is the sense in which Reed used the word "premium" in email correspondence with Brown - though the emails referred to are all from Brown, rather than to Brown.[1012] Reliance was also placed on the manner in which Reed and Prudentia were also said to have used the word "premium" to describe the Sunland payment in various emails with Prudentia personnel and its Melbourne solicitors, and in drafts of the Implementation Agreement or MOU.[1013] In my view, these submissions and the documents referred to do not advance Sunland's case. Regardless of whether Reed or Prudentia hoped to purchase Plot D17 from DWF, sign a SPA, and on-sell it at a "premium" to Sunland[1014] in the manner apparently common in Dubai, this did not occur. An important question is whether, if the word "premium" was used in communications with Sunland, how it was understood by the recipient. Brown has answered this question consistently with my view of Sunland's understanding of the position - which is that it was under no illusions that the Prudentia parties had any interest in Plot D17, proprietary or contractual or other relevant "right". In all the circumstances, it would also be implausible, in my view, to think that Sunland would have thought the use of the word "premium" in the drafts and final form of the Implementation Agreement or MOU indicated a contrary position. It knew the position and, in any event, the provisions in these drafts indicate, clearly in my view, that the fee to be paid under the Implementation Agreement or MOU was for a "right" to negotiate only. This "right was clearly accepted by the parties as a rather nebulous concept, based on no legal entitlement. As discussed, it was, in reality, a payment to the Prudentia parties to "go away".[1015]

283 In his "Detailed Report" to the Sunland Group Board, dated 1 February 2009,[1016] Brown stated that there were three key stumbling blocks in negotiations with Reed, referring, in particular, to Reed's position that he wanted about AUD$65m for a Consultancy Fee "presumably for his introduction and the good price and payment terms". As submitted against Sunland, these words were not included in Brown's witness statement,[1017] which appears to borrow from this document. Nowhere in the Board Report did Brown refer to Reed or Prudentia as having any legal entitlement to Plot D17.

284 On 19 September 2007, Clyde-Smith sent an email to Sunland's external lawyer, Lunjevich in which she said:[1018]

"I also want to check that it is okay for you to hold the 'spotter's fee' premium whatever you want to call in for the guys that introduced this deal, I sent you MOU but I've not yet really spoken to you, things just way too out of hand at present."

Clyde-Smith was not called to explain this email, and, in my view, on the basis of the rule in Jones v Dunkel,[1019] bearing in mind this is an issue going to Sunland's case,[1020] it can be inferred that her answer would not have assisted Sunland.[1021] It can also be assumed, in my view, that the description of the fee was something she would have discussed with Brown or Abedian, or both of them. Brown agreed in cross-examination that a "spotter's fee" usually means that the person receiving the fee does not have any legal right[1022] to the thing "spotted" which, in this context, is Plot D17.

Alleged reliance on the Representations on 18 September 2007

285 Sunland pleads that it made an agreement with DWF for additional BUA on 18 September 2007 and did so in reliance upon:[1023]

(b) a phone call from Brown to Reed on 16 September 2007[1024] during which:

(1) Brown is alleged to have said to Reed words to the effect that 'due to our inability to agree terms and the fact that DWF wants an agreement signed, Sunland offers to purchase Prudentia's rights to Plot D17 for a flat fee of AED 20 million'; [1025] and

(2) Reed is alleged to have responded to Brown with words to the effect that 'I will talk to Nakheel and attempt to negotiate the land price down from AED 135 per sq ft, and if I can, any benefit will be a "land uplift fee" that must be paid to Prudentia in addition to the AED 20 million flat fee';[1026] and

(c) a phone call from Reed to Brown on or about 17 September 2007 during which Reed is alleged to have said words to the effect that 'I succeeded in negotiating a reduction of 15 dirhams per square foot in the price for Plot D17'.[1027]

In my view, the evidence simply does not support a proposition that Sunland and Prudentia were unable to agree on terms as of 16 September 2007 for the reasons already discussed.[1028] Quite simply, the offer of AED 20 million was not made because of a breakdown in negotiations between joint venture partners.

Alleged reliance on Representations and the Hanley Representations

286 Sunland pleads that in reliance on:[1029]

(b) a phone call from Brown to Reed on 16 September 2007;[1030]

(c) a phone call from Reed to Brown on or about 17 September 2007;[1031] and

(d) the agreement with DWF for the additional BUA made on 18 September 2007,[1032]

(e) SWB executed an agreement with Prudentia ('the Prudentia Agreement') on 19 September 2007;[1033]

(f) Sunland and SWB negotiated with DWF the remaining terms on which Plot D17 would be purchased;[1034] and

(g) Sunland made arrangements for the payment to Prudentia of approximately AED 44 million.[1035]

287 Nevertheless, Sunland pleads, subsequently,[1036] that, but for the Representations and the Hanley Representations, they would have undertaken these (and other, later) steps. For the reasons indicated previously in the course of considering the evidence in relation to the Plot D17 transaction, I am of the view that to the extent that Sunland claims that these steps were taken in reliance on both the Representations and the Hanley Representations, the claim cannot be made out according to the pleaded chronology to the extent that the steps were undertaken prior to the introduction of Hanley to the transaction on 26 September 2007.

Reliance on Representations from 26 September 2007 and in relation to the Implementation Agreement or MOU

(a) executed an agreement with Hanley;[1037]

(b) consented to the discharge of the Prudentia agreement, by the signing of the Hanley agreement on 26 September 2007;[1038]

(c) by Brown, emailed the signed Hanley agreement to Reed and Sinn;[1039] and

(d) executed a SPA with DWF for purchase of Plot D17 for AED 120 sq/ft.[1040]

Sunland pleads that it did so in reliance on:[1041]

"(a) the Representations;

(b) the phone call from Brown to Reed on 16 September 2007 (pleaded in paragraph 27 of the SFASC) during which Sunland offers to purchase Prudentia's rights to Plot D17 for a flat fee of AED 20 million [1042];

(c) the phone call from Reed to Brown on or about 17 September 2007 (pleaded in paragraph 28 of the SFASC) during which Reed allegedly says I succeeded in negotiating a reduction of 15 dirhams per square foot in the price for Plot D17 [1043];

(d) the making of the agreement on 18 September 2007 with Dubai Waterfront for additional BUA [1044];

(e) the execution of the agreement with Prudentia on 19 September 2007;

(f) the continuing negotiations with Dubai Waterfront for the purchase of D17;

(g) the arrangements by Sunland for payment to Prudentia of approximately AED 44 million;

(h) the email from Sinn to Brown on 26 September 2007 advising of Prudentia's intention to incorporate a Singapore entity [1045]; and

(i) the draft Hanley agreement [1046].

However, the Sunland parties plead subsequently [1047] that, but for the Representations and the Hanley Representations:[1048]

(a) SWB would not have executed an agreement with Prudentia on 19 September 2007;

(b) Sunland and SWB would not have negotiated with Dubai Waterfront the remaining terms [...] on which Plot D17 would be purchased;

(c) Sunland would not have made arrangements for the payment to Prudentia of approximately AED 44 million;

(d) SWB would not have signed the agreement with Hanley on 26 September 2007 and thereby consented to the discharge of the agreement with Prudentia;

(e) Brown would not have emailed the signed Hanley agreement to Reed on 26 September 2007;

(f) SWB would not have signed the SPA with Dubai Waterfront for the purchase of D17; and

(g) Sunland and SWB would not have authorised the release on 1 October 2007 of the cheque for the Consultancy Fee."

Again, for the reasons already indicated, I accept that to the extent that Sunland claims that these steps were taken in reliance on both the Representations and the Hanley Representations, the claim cannot be made out to the extent that the steps were undertaken prior to the introduction of Hanley to the transaction on 26 September 2007. I turn now to the details of the Prudentia Agreement, ultimately the agreement with Hanley, and to events leading to it in terms of the development of the Implementation Agreement or MOU.

289 The first draft of the Implementation Agreement or MOU provided by Freehills on behalf of the Prudentia parties to Sunland contemplated a joint venture between the parties. The first draft of this agreement was forwarded by Freehills to Sunland on 23 August 2007.[1049] Clause 7 of the draft provided for the "Payment of Consultancy Fee" in the following terms:

"In consideration of Prudentia permitting Sunland to negotiate with the Seller [DWF] for the acquisition of the Property [D17], Sunland agrees that if Sunland or a Related Party of Sunland enters into a sale and purchase agreement, contract of sale or other form of agreement for the acquisition of an interest in the Property [D17] with the Seller [DWF] (Acquisition Agreement) and the Parties have not entered into the Formal Agreement, Sunland must, at the election of Prudentia, ... pay to Prudentia the sum of AED64,282,080 ... as a consultancy fee for services provided by Prudentia to Sunland in introducing Sunland to the Seller [DWF] and assisting in negotiations between the Seller [DWF] and Sunland." [Emphasis added]

This clause did not change in any significant way, despite various amendments made by both Brown and Clyde-Smith.[1050]

290 Subsequently, a different form of agreement was prepared by Freehills, simply entitled "Agreement"[1051] when, by 17 September 2007, it had been decided that Sunland and Prudentia would not enter into a joint venture agreement, but that Sunland would simply purchase Plot D17 from DWF and pay Prudentia a consultancy fee. Clause 2 of this different form of agreement was cast in the following terms:

"In consideration of payment of the Consultancy Fee, Prudentia agrees to transfer to Sunland its right to negotiate and enter into a plot sale and purchase agreement for the acquisition of the Property with the Master Developer." [Emphasis added]

Ultimately, the agreement with Hanley was in the same form as this document, save for the replacement of Prudentia with Hanley as the contracting party.[1052]

291 Sunland sought to place great significance on the background provisions or recitals to this different form of agreement and corresponding preceding provisions in the drafts of the Implementation Agreement or MOU provided on and from 23 August 2007 on behalf of the Prudentia parties. The provisions to which reference was made were those contained in paragraph 1 of the "Background" that: "Prudentia has reached agreement with the Seller to acquire and develop the Property". Sunland submitted that this provision as it appeared in the agreement executed by Prudentia and the preceding drafts of that agreement amounted to a representation on the part of the Prudentia parties that Prudentia had some right or entitlement to Plot D17.

292 In my opinion, for reasons already indicated, it would be wholly artificial to view these provisions and the recitals to the Implementation Agreement or MOU and various drafts as amounting to a representation, or a critical representation as submitted by Sunland.[1053] As indicated previously, these documents were provided in the context of a range of other communications, written and oral, between the various parties, as have now been considered in detail. Viewed in this context, I am of the opinion that Sunland could not treat these recital provisions as anything in the nature of a representation or a relevant representation for a variety of reasons. First, to do so would reflect a position which was, in my view, on the basis of the evidence already considered, at odds with their real understanding of the position with respect to any "control" or "right" that Reed or Prudentia might have had in respect of Plot D17. Secondly, the recitals, which must be viewed in the context of the operative parts of the Agreement, are not consistent with those operative parts, which clearly state that the "thing" being transferred to Sunland is merely a "right to negotiate". Thirdly, as indicated previously, any misapprehension which Sunland might have had in relation to any "control" or "right" with respect to Plot D17 must have been dispelled by Brown's conversation with Lee and Brearley of DWF on 12 September 2007, which led to the "put your foot on it" email.[1054] Finally, the substitution of Hanley for Prudentia in the Implementation Agreement must, in my view, absolutely dispel any suggestion that Sunland had any illusion that Reed or Prudentia had any "control" of or "right" with respect to Plot D17. It is to this matter that I now turn in more detail.

293 Brown, in his first witness statement, referred to an email he received from Sinn on 26 September 2007 regarding Hanley, part of which is as follows:[1055]

"For structuring purposes, Prudentia has decided to incorporate a new entity in Singapore as part of expanding its business into Asia and it is Prudentia's desire to arrange for the monies to be received from Sunland to go to this new entity.

Accordingly, my client would be grateful if Sunland would agree to the cancellation of the existing agreement and the execution of a new agreement on identical terms and conditions to the existing agreement except that Hanley Investments Pte Ltd (an entity incorporated in Singapore which is 100% owned by Prudentia Investments Pty Ltd) will be the other party to Sunland."

294 The agreement with Hanley was in the same form as the signed agreement with Prudentia, save for the replacement of Prudentia with Hanley as the contracting party.[1056] The late introduction of Hanley and the failure of anyone at Sunland to raise any concern about this change in the contracting party is, as I have indicated, completely inconsistent with Sunland believing that Prudentia (or Reed) had any legally enforceable rights to Plot D17 (or, for that matter, any "right" or "control" with respect to that land). If Sunland had thought that Prudentia (or Reed) had any such rights, very different contractual documents would have been prepared, addressing that issue, and with Prudentia (and possibly Reed) as a necessary party (or parties) to convey its (or his or their) contractual, proprietary or other rights to Hanley so that they could, in turn, be dealt with by Hanley by way of transfer to Sunland. In other words, if any of Brown, Abedian or Clyde-Smith had believed that Prudentia (or Reed) had any right with respect to Plot D17, then one would also have expected them to have satisfied themselves that that the "right" or "rights" had been vested in Hanley at the time the agreement was entered into with Hanley. However, neither Brown nor Abedian gave any evidence that, or to the effect, that they did any such thing. [1057] There are no contemporaneous documents that show that either Brown or Abedian, or Clyde-Smith, made any enquiries to ensure that Hanley held any "right" which Brown and Abedian claim they thought Prudentia (or Reed) had with respect to Plot D17. Brown could not even recall the details of any conversation with Abedian or Clyde-Smith about the substitution of Hanley.[1058] I accept that it follows that the reason why the substitution of Hanley did not trouble Sunland was because the fee was in fact paid in return for the Reed and the Prudentia parties walking away from Plot D17 and not for the purchase of any legally enforceable right, proprietary or contractual, or any other "right" In my view the steps that were taken (or, rather, not taken) in relation to the substitution of Hanley make this position absolutely clear.

295 It was submitted against Sunland that it had relied, opportunistically, on a passage in the evidence given by Abedian in the course of his cross-examination. This was his evidence about a line entry for AED5,000 "Administration Fee for Land Transfer" which appears in some of the feasibilities in relation to Plot D17 which were prepared by Brown. In cross-examination, Abedian said:[1059]

"MR COLLINSON: What I want to suggest to you is that this document is inconsistent with your evidence because it shows that on the day after the offer was made, Mr Brown has prepared an analysis of the feasibility of the project on an assumption that Sunland purchases the property at 120 dirhams per square foot?---That's not correct because if you look at it, there's a number of feasibility, version number 11, number 12, number 13, number 14, which go through different assumptions. Interesting, and I thank you for that, because when you look at it, administration fee of the land transfer is 5000, which means somebody owned it before and we paid 5000, otherwise is zero.

I put it to you that that document gives the lie to your suggestion that the offer of 20 million dirhams was not on the assumption of a purchase price of 120 dirhams per square foot?---It says, 'Land premium'. Yes, 'Land premium 20 million'?---Exactly, land premium, it means somebody owned it before and that is the transfer fee of 5000, exactly our point, that they had a control.

I think I'm putting to you a different point?---But it is there."

In re-examination on this point, Abedian said:[1060]

"MR THOMPSON: Yes?---May I give some explanation about that feasibility?

Yes, Mr Abedian?---When you look at the top area of that feasibility, is three lines: the price for the land, next is the premium, and then it is the transfer fee. In Dubai, when you buy a property directly from the government, it does not attract any transfer fee because you are the first person who is buying it. On 17 September, just two days before we finalised the documentation, Mr Brown and myself still believed that the ownership of the property, based on the document that they have the control on, belonged to Prudentia and that is why it was called Premium of 20 million, transfer fee of 5000. That is the proof alone, that is what we believed and what is we believe today."

296 In my opinion, the true nature of this transfer fee is as set out in the following submissions on behalf of Joyce, and on the bases indicated in those submissions:[1061]

"As the above passages demonstrate, Abedian seized on the line entry for the transfer fee in an attempt to support his position that he believed that Prudentia had the control of D17 or that the plot 'belonged to Prudentia'. This untruthfulness of this evidence by Abedian is quite simply demonstrated.

In the first feasibility, the line entry appears as: [1062]

In the second feasibility, the line entry appears as:[1063]

In paragraph 38 of his witness statement, Sunland's own expert, Mr Keighran, states that a master developer (such as DWF) would usually charge a transfer fee to an incoming purchaser which, in his experience, was generally about 2% of the total purchase price. The above entries clearly show a flat fee and not a percentage fee.

The true nature of the AED 5,000 transfer fee is set out in Brown's email of 12 September 2007, the relevant paragraphs of which are set out below.[1064] The underlining has been added:

'* The Purchaser can be in the name of Sunland JV Development (BVI) Ltd which we have in place already.

* We can agree with Nakheel that the plot will be transferred to a Newco when it is established, for a fee of 5,000 AED.

* This can occur within 24 hours, and secure the Plot at the terms and Conditions you have already agreed.

* We will sign the MOU which will note the agreement to transfer the Land to the newco when it is ready.'

Accordingly, Abedian misrepresented this transfer fee as a fee that would be payable on the transfer of D17 from Prudentia to Sunland as opposed to the true position - which was that it was a nominal fee payable to transfer D17 from 'Sunland JV Development (BVI) Ltd' to 'Newco' as set out in Brown's email of 12 September 2007."

297 Concluding its submissions on reliance issues, Sunland sought to rely on Gould v Vaggelas[1065] in support of, what amounts to, a general proposition that there must have been a misrepresentation relied upon, otherwise why would Sunland have paid the fee? More particularly, Sunland submitted:[1066]

"215. Why did Sunland agree to pay Prudentia $13.5 million, and what was it getting for that amount? What type of rights in relation to a $59 million purchase would be worth $13.5 million, i.e. nearly 23% of the purchase price? If Prudentia was merely a competing negotiator, why wouldn't Sunland have at least attempted to negotiate directly with DWF, from whom it had previously purchased plot D5B. There is no evidence that Sunland ever negotiated with or ever contemplated direct negotiations with Dubai Waterfront to buy the Plot. As experienced developers and having negotiated for many development sites previously they would have certainly commenced negotiations with Dubai Waterfront directly if they believed it was possible to do so. The fact that Sunland did not do this is only consistent with a continuing belief that Reed or Prudentia had some right or control over the land.

216. Or putting the question the other way, if the representations were made to the plaintiffs, but they did not rely on them in dealing with the Prudentia parties, what did the plaintiffs rely on? There is no evidence that they relied on anything else.

217. Mr Collinson SC suggested to Mr Brown that the payment was purely for an introduction (in the strict sense) - unsurprisingly Brown rejected the suggestion.[1067] Why would Sunland pay $13.5 million merely for an introduction to a property that it already knew about?

218. The Dubai investigators had no difficulty in reaching the obvious conclusion: 'The Financial Audit Department thinks that the consultancy fees required to be paid by Sunland are exaggerated, as they amounted to 44,105,780 dirhams, equal to 22.9% of the plot price, confirming that such amounts were paid to acquire the plot'.[1068] They do not think that Sunland paid $13.5 million for meetings or advice or an introduction. They understand that such a substantial premium (on percentage terms) would only be paid by someone who believed that were paying it in order to acquire a right to the land.

219. In answer to a question from your Honour as to the explanation for Prudentia's control, Mr Brown stated that 'Austin started by telling us they had a hold; Joyce told us he was the contact for that plot; later said [sic] to us an email that we had to reach agreement with Prudentia before we could deal with Nakheel; the Prudentia documents all referred to that they had reached agreement with the master developer to acquire and develop the plot; and then it was confirmed by Brearley as well.'[1069]

220. Brown's evidence was that although he did not know whether the Prudentia parties' hold on the plot was contractual, the context was the conduct of real estate transactions in Dubai[1070] and at that 'we knew at that time that there was all sorts of ways of putting holds on plots in Dubai, because we had come across some of them in negotiating other potential properties' including letters between parties that were not formal contracts.[1071] Although Mr Brown said in his first statement (para 22) that he had not heard of reservation agreements at the relevant time, in cross-examination he was shown an email that showed he may well have been aware that a reservation agreement was another way of putting a hold on a plot.[1072]

221. Reference should also be made to the internal Dubai Waterfront email from Marcus Lee to Joyce dated 20 August 2007 and disclosed by Joyce (MJJ.008.001.0066, [Tab 30]), which refers to Brearley and Lee telephoning Brown and putting 'pressure' on Brown, and recording that Brown told them that Sunland 'would sign right away if they could get in there now independently'. This is important contemporaneous evidence that Brown and Abedian believed and relied on the representations that they had to reach an agreement with Reed, and that but for those representations, Sunland would have sought to sign an agreement to purchase D17 directly from Dubai Waterfront, i.e. Sunland would 'get in there now independently'."

This issue has been referred to as the 'rhetorical' question.[1073] In closing submissions, Sunland submitted:[1074]

"... commercially why would - well there would be no sensible reason for Sunland to contemplate paying such a fee unless at the time Mr Brown believed that Reed or Prudentia did have some right to the plot "

298 It was submitted against Sunland that the commercial reason for the fee was obvious from the evidence, namely that Sunland believed that DWF was likely to prefer Prudentia over Sunland as the purchaser of Plot D17 if the two of them were to compete for that plot after the termination of their joint venture negotiations. As submitted against Sunland, the evidence discloses why Sunland held that belief:[1075]

(a) Prudentia had laid claim to Plot D17 before Sunland. Austin had told Brown this on 15 August 2007;

(b) Sunland believed that Och-Ziff "may have had"[1076] some high-level connections in Dubai;[1077]

(c) Prudentia, in combination with Och-Ziff, was an attractive purchaser of D17;

(d) Brown knew that Joyce had taken an adverse view of Sunland in connection with Plot A10C and he did not want to upset Joyce by proposing to cut Prudentia out of the Plot D17 transaction - a company with whom Sunland had been deeply engaged in joint venture negotiations.[1078]

For reasons indicated previously, I am of the view that Sunland paid the fee to "remove them [Prudentia Parties] from the deal",[1079] so that they would "walk away"[1080] and not compete to acquire Plot D17. That was Sunland's commercial imperative, so that it could enjoy the significant fruits of the Plot D17 development alone.[1081]

299 The Plot D17 transaction also needs to be assessed by reference to the feverish state of the Dubai property market in 2007.[1082] Further, having regard to the feasibility analyses which Brown had prepared for Plot D17,[1083] Sunland knew that its return on this plot would be "phenomenal",[1084] even taking into account the fee to Hanley. That fee was small compared to the premium Sunland paid on Plot D5B[1085] and considerably less than fees it later negotiated to receive from Likeitalot Investments Pty Ltd on Plot D17.[1086] In my view, the evidence indicates that Brown and Abedian simply did not care about the legal basis for paying a fee to Hanley: they were merely intent upon removing Prudentia from a negotiating position with DWF for the acquisition of Plot D17. Sunland's commercial imperative to pay the fee to Hanley is, in these circumstances, quite clear. The prospect of a very significant return on the Plot D17 redevelopment is clearly the answer to the "why" of the "rhetorical question". In my view these factors not only answer the, so called, "rhetorical question" but also indicate that no credence ought to be given to the argument by Sunland that the lure of such a profitable venture somehow made it particularly vulnerable to the alleged representations. There is, in my view, no basis for such asserted vulnerability - even assuming it could be a relevant factor in the particular circumstances Sunland was a sophisticated and knowledgeable party in the dealings with respect to Plot D17 and experienced and knowledgeable in relation to property purchasing and development in Dubai, as the evidence clearly shows. There is no evidence of any vulnerability on Sunland's part.

300 For reasons already discussed, I cannot accept these submissions of Sunland as consistent with the position as indicated by the evidence I have examined in detail. I particularly reject the assertion that there is, in all the circumstances, a "natural inference of fact" to be drawn in favour of Sunland's position. In this respect, it is instructive to reflect on the passage from the judgment of Wilson J in Gould v Vaggelas[1087] relied upon by Sunland:[1088] Sunland also relied on the statement of Wilson J in Gould that:[1089] "A knave does not escape liability because he is dealing with a fool". Colourful though this statement is it does not advance the analysis in the present circumstances. As already discussed it is clear that Sunland is not a "fool"; rather, the evidence indicates, in my view, that it is very astute in looking to its own commercial interests in a many-faceted way. Secondly to attempt to characterise the defendants as "knaves" simply begs the question whether or not there was any conduct on their part which could be regarded as a breach of the statutory prohibitions relied upon by Sunland. For the reasons I have set out in detail there was no such conduct - in the form of representations or otherwise.

301 In the context of the statement of the law by Wilson J in Gould, I note that I have not found there to be any representations of the kind alleged by Sunland or that whatever representations were actually made (assuming that they are properly regarded as representations) were false. Additionally, I have found that email and other communications, such as that referred to in paragraph 221 of the Sunland submissions set out above, are equivocal at best in the context of Sunland's position and in any event are, in my view, are explicable on the basis that at the time, Sunland was a proposed joint venturer with the Prudentia parties. Further, and very relevantly in the context of these submissions, I have found that there is an explanation for the payment for the Prudentia parties to "go away", a position well supported by the circumstances of the Plot D17 transaction.[1090] Having regard to these circumstances, the Sunland submissions are an exercise in the post hoc, ergo propter hoc fallacy.[1091]

302 In any event, for the reasons indicated previously, I have found no reliance on Sunland's part, even assuming any representations were made as it alleged. In my view, as discussed in some detail, the "put your foot on it" email on the basis of the preceding discussions between Brown and Lee and Brearley made the true position perfectly clear to Sunland (if it was not already) - as indicated by this email,[1092] which Brown himself authored.

303 Brown's evidence was that if he had been told (or believed) that Prudentia (or Reed) did not have "control" or "rights" with respect to Plot D17, he would not have negotiated with Reed and SWB would not have entered into agreements with Prudentia and Hanley, but would have negotiated directly with DWF.[1093] For the reasons indicated, this proposition contended for by Brown is contrary to his evidence, which recognised the value of Prudentia's (or Reed's) negotiating position even if it were no more than "a limited right of negotiation". The evidence establishes, in my view, that the payment made to "walk away" was a payment which was effected to secure Prudentia's (and Reed's) non-competition for the site, Plot D17, pursuant to the release given to Sunland to negotiate exclusively for Plot D17 in the agreement SWB signed with Hanley on 26 September 2011. The execution of the Hanley Agreement came about purely as a consequence of the unilateral decision of Abedian to offer a "walk away" fee to Prudentia. Further, it should be remembered that the fee was paid by Sunland in the frenzy of a white-hot Dubai property market[1094] and in the context of Sunland having missed out on buying some other plots. As appears from the evidence, Sunland was desperate to purchase Plot D17[1095] and all the more so because it sat immediately behind their beachfront plot, Plot D5B. Brown had forecast extraordinary profits for Sunland in the feasibilities he had prepared, even taking the fee into account.[1096] The fee was a minor sum in the context of Brown's financial assessments. Compared to the premium Sunland had paid Al Burj for Plot D5B, it was insignificant.[1097]

304 Even taking the evidence of Brown and Abedian at face value, so to speak, and without considering issues which, in my view, raise serious questions in relation to the veracity of that evidence - particularly arising from the investigation of bribery allegations by the Dubai authorities - I am of the opinion, as already indicated, that the Sunland case fails against Reed and the Prudentia parties, and also against Joyce. Sunland submitted that the attack on its case by these parties was primarily an attack on the credit of its witnesses, Brown and Abedian, and failed to take account of the documentary and other evidence in support of the Sunland case. For the preceding reasons, I reject this submission and have found, on the basis of the documentary and other evidence, that the Sunland case against all these parties fails.

305 Having regard to the position I have reached in relation to the Sunland case, it is not necessary to consider in any significant detail issues that arise with respect to the veracity of the evidence of Brown or Abedian arising out of the investigation of bribery allegations with respect to the D17 transaction. Nevertheless, there are some particular matters that should be mentioned, as they go some way to explaining the evidence of Brown and Abedian in relation to significant issues in the Sunland case - and why these witnesses took positions in their evidence at odds with what would be regarded as a fair reading of significant documents and also other evidence.

306 As indicated previously, I think that the true position may be summarised quite succinctly. Sunland regarded the purchase of Plot D17 as highly desirable, from its own commercial point of view, as it provided the potential for its development in conjunction with other land it owned in the same Dubai Waterfront area and, in any event, owning and developing Plot D17 would enable it to make a very substantial profit. Such a substantial profit, it seems, that the fee paid to Hanley was not particularly significant - though out of this context and viewed as a raw monetary figure, one's first impression may be to the contrary.

307 Brown's unreliability as a witness is, in my view, indicated by the evidence he gave in relation to a number of key issues:

(a) The introduction of the Sunland parties (through Brown) to Plot D17;

(b) Brown's state of mind when he sent the 'put your foot on it' email to Reed;

(c) The failure of the Sunland parties to disclose to their potential joint venture partner the availability of the additional BUA; and

(d) Brown's status within the Dubai authorities' investigation commenced in December 2008, that is, that he was under investigation for bribery.

308 Brown's evidence in relation to his introduction to Plot D17 has already been considered in detail. In spite of the contents of his typed diary notes provided to Mr Mustafa of the Dubai Financial Audit Department stating that Sunland had been approached by Reed with respect to Plot D17, this was not true, as Brown admitted in cross-examination.[1098] In fact, the position reached with Brown's evidence was that he telephoned Reed after obtaining his mobile telephone number from Austin.[1099] Initially, Brown had no explanation for not having included the reference to Austin in his notes for Mr Mustafa, but later tried to explain it by saying that the documents he produced for the Dubai authorities were not meant to be "exhaustive".[1100] More improbably, he said that he must have overlooked the previous page of his notebook.[1101] Brown's evidence was that he always kept his notebooks behind him at his desk in Dubai, and there has been no suggestion that they were not readily accessible at all relevant times. The relevant notebook has two entries for 15 August 2007,[1102] the first of which is a note containing eight points, the last of which is:

"8. Call + 61 [Mobile number]

Andrew Angus Reed (int'l Developer)

has a hold on D-17 lot"

This note is very clear and it is just not plausible that Brown would have overlooked this note when preparing the material for the Dubai authorities.

309 The 12 September 2007 conversation was one between Brown and Lee and Brearley; noting that Brown maintained in cross-examination that he had had two phone calls with Lee and Brearley on this date.[1103] There is, however, only one phone call recorded in Brown's notebook for 12 September 2007.[1104] Additionally, only one call on 12 September 2007 was pleaded by Sunland[1105] and there is only one phone call on that date cited in the chronology prepared by Sunland.[1106]

310 The submissions on behalf of Reed and the Prudentia parties raised the rhetorical questions: "Why did Brown suddenly assert a second phone call?".[1107] They answer their rhetorical question as follows:[1108]

"There is but one explanation; Brown could not explain why he would not have entered critically important information as to the potential of the marketing department of Nakheel selling D17 in his note of conversation with Lee and Brearley on this day. Appreciating this Brown concocted the second phone call of which there is no note."

In my view, having regard to the nature of Sunland's pleaded case and the evidence in relation to the Plot D17 transaction which has already been considered, it is most surprising, to say the least, that if Brown then really thought that Reed or Prudentia had some right, interest in or the ability to control the disposition of Plot D17, that there would not have been some note as to the ability of the marketing department to sell Plot D17 without regard to the position of Reed or Prudentia or, for that matter, Sunland. Consequently, I think it is most likely that the Prudentia parties' answer to their rhetorical question is correct.

311 Consistently with this submission, Reed and the Prudentia parties submitted that Brown needed to maintain a story consistent with the Sunland case of "right" or "control" with respect to Plot D17 and that the urgency to move quickly to "secure" Plot D17 was created as a consequence of the risk that the sales department may introduce Prudentia to another buyer:[1109]

"I believed that if Sunland did not move quickly, there was a risk that the opportunity could be lost. Prudentia could be introduced to someone else by the Nakheel sales and marketing department, who could potentially pay Prudentia a higher premium."

Brown's oral evidence was, however, at odds with this evidence:[1110]

"Your answer to Mr Rush was, 'I believed Reed and Prudentia still had an agreement with Nakheel on the plot and that the marketing people perhaps weren't in the loop on that.' Do you see that?That's right.

So you were saying that the marketing people might be trying to sell on behalf of Nakheel, but they weren't aware of the arrangement between Nakheel and Prudentia?That was my understanding, yes.

That is one version, and then in your witness statement you say, 'Oh, well, the sales and marketing department could introduce Prudentia to another buyer'?Because that tied in with what Mr Joyce had told me earlier.

Why didn't you say what's in the third sentence of paragraph 185 when you were asked about this topic by Mr Rush?I think because under a court situation, not everything comes immediately to your mind when you're asked a question.

But what I want to put to you is that this is an incredibly important email, Mr Brown, because on the face of it it suggests that you concede that noone has a foot on the plot at the time of the email, so you need to explain it somehow, don't you?I explained it by the fact that we were told Prudentia had a hold on this plot and we still believed that at the time."

312 I accept the submission against Sunland that Brown's comment in the passage just quoted that "... because under a court situation, not everything comes immediately to your mind when you're asked a question" is quite implausible coming, as it does, from a senior executive of Sunland, the party bringing the claim; the person who is the principal witness to its misrepresentation claims. This was clearly critical evidence and in relation to a critical conversation or conversations which led to the "put your foot on it" email, which has already been discussed in detail.[1111] In my view, it is clear that the plain words of the "put your foot on it" email do not support Brown's explanation in support of Sunland's case of "right" or "control" for which it contended. In Brown's plain words in that email, summarising his conversation with Lee and Brearley, he said: "They suggest we immediately 'put our foot on the Plot' to secure it".[1112] In my view, for the reasons indicated previously, this is unequivocal evidence, in Brown's own words, against the "right" or "control" that Sunland contended was the basis for its conduct in deciding to remove Reed and Prudentia from the Plot D17 transaction by paying a fee.

313 It was submitted against Sunland that Brown's lack of credibility as a witness was nowhere more obvious than in his denial that he was the subject of the investigations of the Dubai authorities in relation to the D17 transaction, which commenced in December 2008.[1113]

314 Initially, Brown denied, quite explicitly, that he was the subject of a bribery allegation by the Dubai authorities. His explicit denial was as follows:[1114]

"You see, at this time you were a person under investigation for paying a bribe, weren't you?---They were gathering the facts. The Ruler's Court was writing up a report.

No, my question is: at this time, you were a person under investigation for paying a bribe?---They were certainly asking me questions. I don't know what their view of me was.

Surely you looked at the search warrant that's been translated in relation to the approach of Dubai authorities to the Sunland offices?---I have.

Do you remember the date of it?---The search?

No the date of the warrant?---It would be around 26 January, around that time.

Was the reason given in the warrant that you, David Scott Brown, were under investigation for paying a bribe of 45M Dirham?---There was bribery mentioned. I don't believe I was accused of that, but there was a bribery case being investigated."

315 Brown was then taken specifically to the translation of the search warrant:[1115]

"So, 'Dubai Police General HQ General Department State Security, on 26 January 2009, to the Prosecutor General on Duty. David Scott Brown, Australian national, director of operations at Sunland,' Gold and Diamonds complex and the building. 'Further to the public prosecution's authorisation dated 22/1/2009 purporting that a group of employees working at Nakheel are rigging the sales process in return for bribes by using sham reservations of lots or selling them at lower than the market, and giving employees orders not to dispose of them and then selling them through brokers in return for obtaining sums of money, it has been decided to pass this information to the Financial Audit Department at the KK the Ruler's Court, who have found that an Australian national called David Scott Brown obtained Lot D17 at the Nakheel's Waterfront project in return for paying 45 million dirhams as a bribe to obtain this lot at a cost lower than its market price."

"You knew that, didn't you?---Yes, I knew the case was about bribery, yes."

Following this acknowledgment, the cross-examination continued:[1117]

"Why couldn't you tell us that you were being investigated for bribe?---I'm not denying I was being asked many questions, yes.

You've read that, haven't you [the search warrant]?---Yes.

What it says that you were under investigation for bribery, doesn't it?---It does there, but---

And you knew that at the time I suggest, Mr Brown?---I can't recall that document when you are asking me the previous questions.

Are you saying to the court that you are unable to recall whether you were under investigations for bribery in January 2009?---What I recall is that the Ruler's Court were talking about bribery and commissions and I understood that they did not have the facts about what this transaction was based on. There was no bribe, there was no commission, there was a premium paid.

HIS HONOUR: Could you answer the question?---Can you repeat the question, please?

MR RUSH: Are you saying to the court that you are unable to recall whether you were under investigation for bribery in January 2009?---No, I'm not.

What is the position, do you recall or not recall---I do recall.

You do recall?---Yes.

That you were under investigation for bribery?---Yes.

Why didn't you tell us that five minutes ago?

HIS HONOUR: There's no doubt about it is there? I think one could infer the average person would be horrified to get a document like that in Dubai?---Yes.

MR RUSH: And you were horrified, weren't you---I was."

317 I accept the submissions against Sunland that Brown's evidence in relation to the bribery allegations indicates, very clearly, that Brown cannot be taken as a reliable witness of truth. More particularly, it establishes that, on his own reluctant admission, Brown was being investigated for bribery, he was clearly horrified at the possible consequences of such an investigation. This explains instances, discussed previously, where, in his evidence, he sought to deny a clear and obvious meaning of documents which do not support Sunland's version of events with respect to the Plot D17 transaction. A clear instance is his seeking to explain away the significance of the "put your foot on it" email and Sunland's failure to take the opportunity, which was clearly available to it, to make full and comprehensive investigations of DWF and its senior officers to establish clearly and unequivocally the nature of any interest which Reed or the Prudentia parties might have had in Plot D17, contractual or otherwise.

318 Brown's denial that he or Sunland was being investigated for bribery is, in my view, all the more extraordinary when one considers the findings of Logan J in these proceedings in the Federal Court of Australia that "The Sunland parties were under investigation themselves by the authorities in Dubai".[1118]

319 Brown prepared a report for Eames dated 1 February 2009.[1119] This report was set out in a file note of a meeting between Eames, Brown, Abedian and Ms Anne Jamieson, General Manager of the Dubai branch of the Sunland Group on 2 February 2009. Brown's report set out, so-called, stumbling blocks to the entering into of a joint venture arrangement with Reed with respect to Plot D17, which were described as follows:[1120]

"Soheil [Abedian] and I worked with Reed during this time to try and agree the terms of a JV, but there were 3 stumbling blocks-

1. Reed wanted us to show him a Design Concept for the site, but we were not prepared to show him our ideas until we had signed an Agreement on the site.

2. Reed wanted about AED 65m for a Consultancy Fee (presumably for his introduction and the good price and payment terms)

3. Reed wouldn't accept our fees saying they were too high (PM, Design and CM fees)" [Emphasis added in the submissions by Reed and the Prudentia parties]

In the context of the D17 transaction as already examined in detail, it is, I think, clear that both Brown (and Abedian) were attempting to use this report to disguise Sunland's unilateral decision and action to offer a payment to remove Reed and the Prudentia parties from the deal to acquire Plot D17. The report sought to provide some explanation or basis for Sunland's allegation that the reason for the breakdown of the joint venture negotiations lay in Reed and the Prudentia parties' intransigence in relation to reasonable negotiating requests raised by Sunland, rather than the latter's unilateral action of seeking to pay to remove Reed and the Prudentia parties from the deal to purchase Plot D17.

320 More particularly, there was no evidence that Reed or Prudentia at any stage wanted the "design concept" for the site. A request was made for the Sunland feasibility for Plot D17, but this request was made only after Sunland, at the last minute, unilaterally placed a put option in the draft Implementation Agreement, the MOU. The consultancy fee of AED 65 million was never a stumbling block to the joint venture. It was agreed upon immediately after the first meeting between Brown and Reed on 19 August 2007.

321 References have already been made to the detailed discussion of the D17 transaction from the perspective of considering whether there were any misrepresentations as alleged by Sunland or, assuming that there were, whether there was any reliance on such misrepresentation on its part. It is clear from the consideration of these matters and the references to Abedian's evidence that he was a consistently uncooperative witness and clearly prepared to give evidence in a manner which he saw as being advantageous to Sunland's commercial interests in Dubai. In short, Abedian presented as an unreliable witness and, as indicated previously and as explored further in relation to some corporate governance issues which arise with Sunland, could not be regarded as a reliable witness of truth. I accept that the key issues on which Abedian gave clearly unreliable evidence included evidence relating to the following:

(a) Abedian's belief that Prudentia or Reed or Och-Ziff had a 'right' over Plot D17 (although because Abedian admitted that he was not party to any of the pleaded meetings or communications on which the Sunland parties rely for their claim, Abedian's evidence in this area is irrelevant);

(b) Abedian's knowledge and understanding of Joyce's 16 August 2007 email;

(c) Sunland's knowledge of the price at which Plot D17 could be acquired;

(d) Sunland's entitlement to additional BUA (and, in particular, when this first became known to Sunland and why it was not disclosed to the Prudentia parties);

(e) Abedian's reaction to the "second" call from Lee and Brearley to Brown on 12 September 2007 (leading to the "put your foot on it" email);

(f) the existence of a "reservation agreement" for Plot D17;

(g) the status of negotiations with Prudentia on 17 September 2007; and

(h) the investigation by the Dubai authorities commencing in December 2008, including the role of Brown in that investigation and Abedian's communications with the Dubai prosecutor.

322 The email from Joyce to Brown dated 16 August 2007 was said to have been relied upon by Sunland, having regard to its inclusion, as pleaded, with the words "[a]nyway the issue for us is that you can come to an arrangement with them that allows you to deal directly with us".[1121] It is not clear how Abedian came to receive this email as it is not part of the email chain,[1122] but he claimed in evidence that it was handed to him by Brown in hard copy. Furthermore, his evidence was that this email was of such importance to him that he kept it in his office drawer and from time to time "showed [it] to some people that it was important to me".[1123] Abedian's evidence was that he no longer had a copy of this email, having disposed of it in an office move around December 2006, at the end of 2006.[1124] As indicated previously, this could not have occurred as the email was not in existence at this time. As concluded previously, Abedian's evidence of keeping this email was completely unreliable, as was clear from part of his evidence in cross-examination, which has been set out previously.[1125]

323 The concept of a "reservation agreement" for Plot D17 was first raised by Abedian during cross-examination when he said that "[w]e have in Dubai two different kinds of having the control: one it is a reservation agreement, and the other one is sales and purchase agreement".[1126] He then expanded on this concept in response to questions about the meaning and impact of the "put your foot on it" email and the 12 September 2007 telephone call which preceded this email.[1127] As discussed previously, Abedian sought to explain the meaning of the "put your foot on it" email in a manner which was tortured, to say the least, having regard to its actual language,[1128] and also sought to explain away its effects on the basis of the possible existence of a "reservation agreement" in circumstances where no previous reference had been made to a "reservation agreement" or something similar. The unsatisfactory nature of Abedian's evidence in this respect is demonstrated from the following part of his cross-examination:[1129]

"So if you recall correctly, Mr Brown told you that Marcus Lee and Michael Brearley told you that you should put your foot on the plot?That's right.

Why do you need to put your foot on a plot that you come to this courtroom and say Prudentia control?Because if you have a reservation agreement in Dubai, the reservation agreement usually it is for a period of time, it's not neverending. If the time near to completion and the reservation agreement may finish, it means that the control will be lost.

Tell me, Mr Abedian, anywhere in your statement, anywhere in either statement, do you refer to the words 'reservation agreement'?In my words, in my statement?

Anywhere in your statement do you use the words 'reservation agreement'?Maybe not.

So is it your evidence that you thought there was a reservation agreement?Control means to have at least a reservation

No, just listen to the question, please: is it your evidence that you contemplated there was a reservation agreement between Prudentia and DWF?That's correct.

If it is, in fact, your evidence, why did you not refer to that in your statement?I don't know where it is.

Is this something that you've recently thought of?No.

I'm sorry?Control is the same as reservation agreement, when somebody has a control over the plot of land.

Control can mean you say control is the same as a reservation agreement?When you have a reservation agreement, you have a control of the land.

Tell me, Mr Abedian, when did you think this up? When did you first think that there was a reservation agreement?From the day one.

So why didn't you refer to it in your statement?Control means that.

Why didn't you refer to a reservation agreement in your statement?No need.

No need?No need.

Because control means that?That's correct.

And that's a truthful answer?That's a truthful answer."

324 In spite of this evidence, Abedian agreed in cross-examination that his witness statement did not mention that he believed that there was a reservation agreement[1130] and he confirmed that he had not told his lawyers when he was preparing his witness statement that at relevant times he believed that Prudentia or Reed had a reservation agreement.[1131] Abedian also agreed that "[t]here's not one email, is there, to you or from you over the period that we're talking about that mentions the words 'reservation agreement'".[1132] Further, Abedian agreed that it would have been very important at the time the Eames memorandum was prepared for the Dubai prosecutor to have told Mr Eames that he believed there was a reservation agreement but that he had not done so.[1133]

325 Abedian again raised the concept of a "reservation agreement" when asked why he had said in his written statement that he had not understood the nature of the alleged Prudentia "control":[1134]

"Why then did you say in your statement that you didn't understand the nature of the control?Control means to have a reservation agreement.

No, why did you say in your statement you didn't understand the nature of the control?Control means to have a reservation agreement.

So 'put the foot on the plot' means, as I understand your evidence, that there is a reservation agreement, but it might be running out?It might be running out.

Then why do you need to put your foot on the plot if there's a reservation agreement?Because maybe it is limited to a time frame.

Who did you ask?Noone.

Noone?Noone.

So is it your evidence you felt there might be a reservation agreement, that the timing might be running out, but you didn't get Mr Brown, for example, to ask Mr Reed, 'How long have we got?' Is that your evidence?I didn't ask Mr Brown, no, I didn't.

Why wouldn't you?Because Nakheel executive told Mr Brown that you have to move and put your feet on the block."

326 Apart from the fact that Abedian's evidence with respect to the existence or otherwise of a "reservation agreement" was not consistent with his witness statement or other documentary evidence, his evidence directly contradicted that of Brown, who agreed in cross-examination that he had not heard of a reservation agreement.[1135] This is an extraordinary state of affairs to have a serious conflict of evidence on such a significant issue in Sunland's case between a person in Abedian's position and that of Brown, Sunland's chief operating officer of its Dubai branch in 2007, a director of SWB, a person upon whom Abedian said he relied and someone who, according to the evidence, reported fully on his activities to Abedian. Additionally, Abedian's evidence is also contradicted by the fact that no reservation agreement has been discovered by any party to the proceeding and the further fact that following Abedian's evidence, no call was made by the Sunland parties for the Prudentia parties or Joyce to produce a "reservation agreement" for Plot D17.

327 Abedian also gave inconsistent and unreliable evidence in relation to the information given to the Dubai authorities and in relation to his role in that respect. His evidence was that he was not in contact with the Dubai prosecutor,[1136] but this evidence was completely inconsistent with Brown's file note of 31 May 2009, which recorded a meeting between Brown, Abedian and Mr Al Zarouni.[1137] Abedian then admitted that "Mr Brown gave a statement and we gave it to the Prosecutor".[1138] When Abedian was asked "[w]hy did you tell us you've had no contact with the Prosecutor if you actually attended at the Prosecutor?", he replied "[a]bout this contact, I didn't have contact with him. I only had one meeting, which I went and gave him a report".[1139] Additionally, it appears from Brown's evidence that this meeting with the prosecutor had some significance. When Brown was asked why he was contacting the prosecutor, rather than the other way around, he responded that "We wanted to keep the prosecutor informed of what we were doing in Australia".[1140] The purpose of this meeting is set out in Brown's notes as follows:[1141]

"1. To deliver the DLA Phillips Fox briefing note on the legal proceedings strategy in Australia

1. To seek his advice with respect to Sunland taking action against Matt Joyce and ultimately Nakheel in Dubai
2. To understand the status of the case with respect to timing and the return of my passport."

In relation to the second point, Brown explained that one of the reasons why Abedian attended this meeting was because he had some concerns about taking legal action against Joyce because, if Sunland sued Joyce, it might be seen or involve ultimately taking on Nakheel.[1142]

328 On its own, Abedian's evidence in relation to the contact, or lack of it, with the Dubai prosecutor may not, perhaps, be of such significance, but it is, as indicated in many other places in these reasons, not an isolated instance of Abedian's approach to his evidence in these proceedings. Having regard to the seriousness of the bribery allegations and investigations in Dubai, which was abundantly clear from Brown's evidence, and having regard to Brown's evidence and his notes in relation to the purpose of this meeting with the Prosecutor, it is simply not believable that Abedian would not have remembered Brown's statement and the meeting with the Dubai prosecutor.

329 Abedian's evidence was again unreliable in relation to the detail of the D17 transaction. In particular, he said that he did not "think it matters about who contacted who [about Plot D17]".[1143] This evidence was given in spite of the evidence in his witness statement that "[m]y belief that Reed, Prudentia and Hanley had control over Plot D17 was based on the fact that Reed was introduced to Sunland by Joyce [...]".[1144] As submitted against Sunland, I am of the view that the reason for this contradictory evidence was Abedian's realisation that Brown's initial statement concerning contacts with Reed and Joyce over Plot D17 were wrong. Abedian's initial belief that Joyce introduced Reed to Sunland was the foundation for his understanding of Reed's, Prudentia's and Hanley's control of Plot D17, as he said in his witness statement. That foundation was clearly undermined by the evidence given at trial.[1145] I also accept the conclusion advanced in the submissions against Sunland:[1146]

"Soheil [Abedian] was left, in reality, with nowhere to go. His evidence as to the fact (now established) that Brown called Reed (and not the other way around) was that Soheil [Abedian] told the Court he did not care whether it was right or wrong to say Brown contacted Reed or Reed contacted Brown.[1147]"

330 Abedian also gave contradictory evidence in relation to his knowledge of the price of Plot D17. Initially, he stated in his evidence that right from the outset of negotiations, the land could be bought for AED 120 if Sunland reached agreement with Reed, and that was what Brown told him at the "very beginning".[1148] Abedian also agreed "from the beginning, it's your evidence that at least Mr Brown knew if the deal could be done, it could be done at 120 a square foot".[1149] Abedian's evidence in this respect was, however, later contradicted by his evidence in which he said:[1150]

"So can you just tell His Honour again when you first knew that this deal could be done for D17 at 120 dirham a square foot?---After we did not continue with the joint venture between the parties and I suggested to buy him out for his premium that he had the control for 20 million, he came back and said "Whatever I negotiate down, you have to pay at the top of it" which we agreed.

I put to you that's entirely inconsistent with the question and the answer I just read to you?---Ok. I don't understand you, I'm sorry."

Abedian's explanation for the contradiction, in terms of lack of understanding, is unacceptable and implausible, having regard to his earlier clear and unequivocal answers.

331 Contradictory evidence was given by Abedian in relation to the role that he and Brown took in negotiations with respect to Plot D17. He agreed, first, that Brown was in the front line, doing the negotiations with Reed[1151] and described him as "the person at the front and he was consulting with me".[1152] Then, he gave evidence which, at best, must be regarded as completely inconsistent, when he said "I was the person who was doing the deals and ... [m]y duty, my task, it was that I was concluding every single deal, selling or buying, to do the documentation, to agree with the price, to agree with the terms. Mr Brown never ever on any transaction was involved in the terms of it. Even if he signed as a director, I was telling him, 'I agree with that, go ahead and sign'".[1153] Again, in contrast, Abedian said on several occasions during the trial that he was entirely reliant on Brown.[1154] More particularly, Abedian gave evidence that he reviewed Brown's report on 1 February 2009,[1155] Brown's "clear statement" of events dated 22 January 2009[1156] and the Brief to the Prosecutor prepared on 15 February 2009.[1157] Consequently, in my opinion, it can be concluded safely that Abedian was fully informed in relation to the D17 transaction and was well aware of the nature and extent of the Dubai authorities' investigation of bribery allegations insofar as they involved or affected Sunland.

332 Abedian's evidence in relation to the bribery investigation of Brown by the Dubai authorities is riddled with inconsistencies and the unwillingness to accept reasonable inferences of various events and documents. Critical parts of his evidence indicative of these deficiencies are conveniently and accurately summarised in the closing submissions of Reed and the Prudentia parties:[1158]

"Soheil [Abedian] feigned ignorance of the bribery investigation, telling the Court, when it was put to him that Brown had admitted during cross examination that he was under investigation for bribery in February 2009 that he would be very surprised if he said that [1159]. Soheil's evidence of denial of knowledge that his chief lieutenant in Dubai was under investigation for bribery is unbelievable. Soheil was aware of the execution of a search warrant on the Dubai offices of Sunland on 26 January 2009 [1160]. Soheil was aware of Brown's account of the execution of the search warrant [1161]. Part of this account was put to Soheil in cross examination:[1162]

'If we go to the last dot point on that page, this document that you say you read which is as follows, "Another local man arrived an hour later and he seemed to be in charge. After an hour, I asked him about my passport. He told me that this was a criminal investigation into bribery and the transaction we had done on D17 was a bribe, in their opinion"?---Yes.

What did you make of that when you read it?---Very simple fact, that Mr Angus Reed has given bribe to Mr Joyce.

Is that your answer to the question?---Yes, it is.'

Brown wrote in the report that he was informed at the time of the execution of the search warrant that in relation to the investigation into bribery I was lucky to be out. Soheil's explanation of these words was disingenuous.[1163]

'What did you understand by the term "lucky to be out" when you read it?---That he is lucky to be out.

What's that mean?---He's out. I don't know.

I'm sorry?---That he's lucky to be out.

Lucky to be out of what?---Out of this investigation.

Lucky to be out of the investigation?---Yes.

Is that the way you read it?---Of course.

You see, I suggest the meaning is completely obvious Mr Abedian, when you read it: that your employee was being investigated for bribery and he was lucky to be out of jail?---I totally disagree with your comment.'

It is to be remembered at the time of these words Brown's passport had been taken.

...

Soheil's explanation of a note from Brown to Sahba [Abedian] and Sahba's response of 29 April 2006 [1164] again demonstrated a person refusing to tell the truth about his knowledge of the bribery investigation:[1165]

'MR RUSH: He was delighted at the news that your chief lieutenant in Dubai was only a witness and no longer, as far as Mr Mustafa was concerned, the subject of investigation for bribery. That is what that's about?Mr Mustafa has said to Mr Brown and Georgia Carter that you are a witness, and that is exactly what the company believed from the first time.

You know exactly what it's about, Mr Abedian, but you won't come to terms with what is written with the email, will you?I believe you're wrong, Mr Rush.'

Soheil was referred specifically to transcript from a hearing before Justice Logan in the Federal Court of Australia on 15 December 2009 [1166]:

'I just want to read something to you from the transcript of 15 December 2009 that was said by Mr O'Shea ... "Sunland was also the subject of investigation and, indeed, Mr Brown in particular was the subject of investigation". Did you at least understand that to be the position of the first series of investigation in Dubai, that Mr Brown, in particular was the subject of investigation?---No.

What I've read to you is your counsel, Sunland's counsel, told His Honour in December 2009. Does it seem that you are out of the loop in relation to what went on in December 2008 and January 2009 in relation to Mr Brown?---I don't think so.

Well how do you explain Mr O'Shea telling His Honour Justice Logan that Mr Brown was the subject to use his words "particularly was the subject of investigation"? How can you explain that if you were not ...?---Investigation means asking questions.

Investigation means asking questions?---That's right.'

Again the evidence of Soheil on this further point is untenable."

In my view, it is clear from Abedian's evidence that he was determined to deny that Brown or Sunland was being investigated for bribery in Dubai. This, in my view, made very clear when, what are conveniently termed, the corporate governance issues for Sunland are considered. It is these to which I now turn.

333 The Sunland corporate governance issues arise in respect of its announcements to the Australian Stock Exchange ("the ASX") and also in relation to its Board reporting. These issues are relevant in the present context because they demonstrate, further, the unreliability of the evidence of Abedian and reinforce my opinion that the evidence of both Brown and Abedian in relation to the D17 transaction was cast by them, as far as possible, to rebut any suggestion of a transaction of a type which might be characterised by the Dubai authorities as bribery. This characteristic of their evidence is, in my view, well illustrated by Brown's initial forthright response to Mr Mustafa that Sunland had paid a "premium" to obtain exclusive rights to Plot D17 in the absence of a SPA where Brown apparently did not see such a payment as being unusual or untoward; though clearly the Dubai authorities found this quite unusual or untoward.[1167] In the present context, Abedian's approach to the ASX announcements is, in my opinion, significant. This is not to suggest that his approach to reporting to the Sunland Board was not significant, but those issues do not need to be examined in such detail for present purposes.

334 Abedian's evidence was clear that he was responsible for all the announcements made by Sunland to the ASX.[1168] The evidence in relation to the ASX announcements is conveniently and, in my view, accurately summarised in the closing submissions of the Reed and the Prudentia parties. For present purposes, it is convenient to set out the relevant part of those closing submissions in full:[1169]

"16.1.2 Soheil agreed during cross examination that the fact that a senior executive of Sunland Group is being investigated for bribery in Dubai would be considered market-sensitive information[1170] [b]ecause no company should do a bribery[1171] and that if it be the case that a senior executive of Sunland was being investigated for bribery, that that would be market-sensitive information that should be made known to shareholders in the Australian Stock Exchange.[1172] It was then put to Soheil that rather than tell the truth about it, you put out a direct deceit in relation to what was going on.[1173] Soheil's response was that [y]ou are very wrong [1174]

16.1.3 Sunland made issued (sic) an announcement to the ASX dated 20 February 2009.[1175]

16.1.4 This announcement stated, relevantly, that:

'In reference to today's article on page 52 of The Australian Financial Review, International property Group, Sunland (ASX:SDG) advises that no allegations have been made against Sunland in respect of its activities in Dubai and there is no investigation into Sunland or its activities.'

16.1.5 Soheil accepted responsibility for this announcement [1176].

16.1.6 Brown gave evidence [1177] that the announcement doesn't reflect what was actually going on in Dubai. In answer to a question from the trial judge he agreed it was inaccurate [1178]. The inaccuracy was that at the time of this announcement to the ASX Brown was being investigated for bribery.

16.1.7 Whilst Soheil denied his alleged ignorance of Brown being under investigation for bribery was to justify the ASX announcement, his denial cannot be considered an honest answer.

16.1.8 Sunland also made an announcement to the ASX dated 2 March 2009 [1179].

16.1.9 This announcement stated, relevantly, that:

'Sunland Group Limited (ASX:SDG) reconfirms no allegations have been made against Sunland or its executives in respect of its activities in Dubai.

Furthermore Sunland advises its Chief Operating Officer - Middle East, Mr David Brown, is a witness to the authority's investigation. He is not the subject of investigations, nor has he been arrested or detained as is stated in the press articles.

Sunland Managing Director Sahba Abedian said: "Sunland fully supports the Dubai Government's commitment to ensure the region's property market is transparent["].

"We will continue to provide assistance where required. Maintaining the highest ethical standards in all our dealings has long been a core value of Sunland."'

16.1.10 Soheil accepted responsibility for this announcement [1180].

16.1.11 Brown was asked about this announcement and agreed that in the context of he being under investigation in Dubai for bribery, the announcement was totally inaccurate [1181]. Further Brown agreed that having his passport confiscated and being confined to Dubai could be argued as being detained [1182]. Brown agreed that the announcement could not have been written less accurately.[1183]

16.1.12 The information for the ASX announcement was, according to Brown, the responsibility of Soheil [1184].

16.1.13 Brown's evidence is that information about the Dubai investigation was mainly provided by Soheil to the company secretary.[1185] Brown said he told [Soheil] precisely - [Brown] gave [Soheil] precise accounts of what was happening to [Brown], what was being said to [Brown] and what [Brown] was saying to the Dubai prosecuting authorities.[1186]

16.1.14 The question of 'detention' was subject to further cross examination and questions from his Honour in the context of evidence about a dissatisfied purchaser of property from Sunland in Dubai (Carole Alderson) having her passport confiscated. Soheil was caught out by his own evidence. The evidence is supportive of Soheil being aware of the allegations of bribery against Brown as the reason for his house arrest.

'She was arrested and her passport confiscated. Did you know that that occurred?I know that, yes, that's correct.

She was placed under house arrest in Dubai for some 18 months?The house arrest, it means when somebody's passport is removed, it's called house arrest. It means because they cannot leave the country.

HIS HONOUR: So if your passport is taken in Dubai, you are regarded as being under house arrest?That's correct, but you can go anywhere in Dubai, anywhere in UAE. You are not allowed to go outside the border.

So Mr Brown was under house arrest while his passport was held by Dubai authorities?When somebody take it, you are not allowed to leave the country, but it doesn't mean that you are in the house.

No, but he would have been regarded as under house arrest as well, on that basis?You could interpret that, yes.

Well, that's what you've said?Yes, what I'm saying is that if it is, somebody has to come as a witness. If, for example, I am a witness in an accident, they take my passport until such a time that I go to court.

And you're under house arrest during that period?That is the expression that they are using, your Honour. I'm saying that is not correct, it is not a house arrest.

You're not actually confined to your house, you are confined to Dubai?No, to United Arab Emirates.

I see?To United Arab. Because you don't have a passport, you cannot go outside the country.

I see, thank you?I was trying to just explain that somebody is not physically in the house.'

16.1.15 A Sunland board meeting was held on 10 March 2009 after the release of the 2 March 2009 announcement. The board papers indicate that Brown attended this board meeting. Brown's evidence is as follows:[1187]

'I take it you are present by invitation to give a full account of what has occurred to you and Sunland in Dubai?Well, to be part of a discussion with the board, yes.

Because that meeting, in fact, was in Dubai, wasn't it?I think it may have been.

So did you seek to correct the misleading statement to the stock exchange?Well, I didn't write that, had no input into it.

No, my question was did you seek to correct it?No, I didn't.'

16.1.16 It was put to Soheil during cross examination that it was very important to you, as you stand here now, to say that these exchanges are accurate, isn't' it [1188], to which Soheil replied [t]hat's correct [1189]. Soheil also agreed that it was a very serious thing to mislead the Australia Stock Exchange and shareholders.[1190]

16.1.17 The final announcement to the ASX which was the subject of cross examination in this proceeding was 21 July 2009.[1191] This announcement stated, relevantly, that:

'Mr Abedian also confirmed that, as a consequence of the Dubai authorities finalising their investigations, the chief operating officer of Sunland's Dubai branch, David Brown, had his passport returned. Mr Brown was a witness to the Dubai authorities' investigations and was never subject of the investigations, nor detained.'

16.1.18 Soheil's evidence is that he would have reviewed this document for accuracy prior to its release to the market[1192] and that he is aware that there are severe penalties attached to misleading the market.[1193]

16.1.19 Soheil agreed with the proposition put to him by his Honour that in Australia wouldn't we describe [what happened to Brown on 26 January 2009] as someone being detained[1194] and also agreed that this press release would be read in Australia.[1195] Soheil was not prepared to concede that Australians reading the word 'detained' in that paragraph would understand it by reference to the Australian concept of being detained.[1196] Soheil was also not prepared to concede that at the time the press release went out, Soheil knew that the sentence quoted above was wrong.[1197]

16.1.20 The following evidence was then given in the context of the share price for Sunland on 21 and 22 July 2009 and an exchange of letters between the Australian Stock Exchange and Sunland on 22 July 2009 (including a statement in the Sunland letter that Other than announcements made by the company, the company does not have any other explanations for the price change in the securities of the company).[1198]

16.1.21 The above statement was made by Sunland after the share price jumped from 75.5c to 88.5c immediately following the announcement. Soheil maintained this was a coincidence following the announcement.[1199] Soheil said further it could have been due to the share buyback program undertaken by Sunland but he was unable to inform of the date of the commencement of that buyback program.[1200] This was not provided as a reason in the letter of Sunland to the ASX when asked to explain the share jump.

16.1.22 Soheil was then asked about the letter of explanation to the ASX and the fact that it did not include any assertion of the share price being due to the share buyback program:[1201]

'Thinking back to your answers just before the break in relation to the 21 July announcement and the 22 July correspondence with ASX, I'm just having a bit of a problem understanding your answers in light of paragraph 5 of the letter of response from your company secretary, which seems to indicate that the only explanation for changes in the price of the securities of the company is as a result of its public announcements. It seems to state that quite clearly, so I'm just wondering if you would clarify that?Your Honour, it says, "Other than announcement made by the company, the company does not have any other explanation for the price change of the security of the company."

That is pretty clear, isn't it?It means we don't have any other news to tell the market.

Doesn't it mean what it says, that you have no other explanation, there is no other reason that your company could provide to the ASX for changes in the share price or securities prices other than public announcements, and that letter is focusing on the 29 July 2009 ASX and media release? Isn't that right?That's correct, your Honour. But if I may expand on that a little bit. Generally, the response we give to ASX, we say whatever we have is in the announcement we made before, we don't expand on anything else.

No, but they are asking is there any other explanation they are asking you what is the explanation for the 17.2 per cent change in the share price?We didn't have any other explanation.

So your only explanation is the public announcements of the company?That could be, your Honour.

That is what paragraph 5 says, isn't it?Okay, that's correct.

So you are confirming that's right, there is no other explanation?There's no other explanation, that's correct.'"

335 As this summary indicates, the evidence was clear that in fact Brown was effectively under "house arrest" in Dubai - consequently being confined to the United Arab Emirates - while the Dubai authorities investigated the bribery allegations. . Brown had actually been detained for questioning by the Dubai Police for a period of seven hours (from 4.30pm until 11.30pm) on 21 January 2009 and was not permitted to leave the Dubai Police Headquarters during that time, and during which he was questioned by Mr Khalifa of the Dubai Police Brown admitted that this event was "very scary"[1202] and he was not allowed to leave the Police Headquarters until he had surrendered his passport, which had to be obtained from his home by his driver.[1203] Brown did not arrive home from the Police Headquarters until the early hours of the next morning, and for the next six months, remained under "house arrest" in Dubai, his passport being held during that time by the Dubai authorities.

336 These events, given their seriousness, must have been well known to Abedian, events which occurred just short of one calendar month prior to the first ASX announcement on 20 February 2009. As the summary set out above notes, Brown's evidence was that this announcement did not reflect what was actually going on in Dubai. The statement in the second ASX announcement that Brown had not been arrested or detained is, on the evidence, clearly inaccurate. Brown agreed that this announcement was totally inaccurate and also agreed that having his passport confiscated and being confined to Dubai could be argued as being detained. However, it is simply playing with words to suggest that if one were to spend seven hours at the Dubai Police Headquarters, not being allowed to leave and then surrendering one's passport, that this situation could be described as anything else than "being detained".

337 The final ASX release can only be described as making matters worse and stating that Brown was never the subject of investigations, nor detained. No satisfactory explanation was provided by Abedian in relation to the terms of this final announcement.

338 The deficiencies in relation to the reporting to the Sunland Board are, in my opinion, also accurately summarised in the submissions on behalf of the Reed and Prudentia parties.[1204] Although it is not necessary to examine these deficiencies in detail, it is relevant in the present context to highlight some more important matters which cast further doubt on the reliability of both Brown's and Abedian's evidence.

339 First, Sunland produced no minutes or Board papers in relation to or evidencing any Board discussion about the proposed joint venture or the final purchase of Plot D17. The first reference to a Sunland Board report relating to Plot D17 is Brown's evidence that he and Abedian drafted a report to the Sunland Board members after the execution of the SPA.[1205] Although this report was not discovered by Sunland, there are, nevertheless, minutes of a meeting of SWB resolving to enter into the agreement with Prudentia and to execute a SPA for the purchase of Plot D17.[1206]

340 It is also significant that there was an absence of reporting in relation to the bribery investigation in Dubai in relation to the Plot D17 transaction. Thus, Reed and the Prudentia parties submitted (again, accurately, in my view):[1207]

"The absence of comprehensive reporting is also apparent through the period from December 2008 when the Dubai authorities first involved Brown in their bribery investigation over the D17 transaction. Whilst there is evidence that the board was made aware of the investigation, in particular, at a board meeting in Dubai on 9 February 2009, the board's knowledge of the criminal investigation and then proceeding was tainted by the same inaccuracies and omissions which had featured so obviously in the evidence given by Brown to the prosecutors and endorsed by Soheil. The failure of Soheil to ensure that his board was across the events in Dubai was in spite of Brown's evidence that the board of Sunland was concerned about what was happening to Brown in Dubai[1208] and that Soheil himself admitted that the Sunland board has an interest in the outcome of the criminal proceedings in Dubai[1209]. Soheil's evidence included the following exchange:[1210]

'So you saw it, no doubt, as your responsibility to give the board a full and proper appreciation of the litigation that was taking place in its name in Dubai?Correct.

Because a listed company such as Sunland, it is essential that its board is aware of such information?That's correct.

As it is necessary for board members to be made aware of significant ventures that the company may be undertaking in Dubai?That's correct.

And you would ensure that the board was kept up to date in relation to both those matters, the court case and any significant ventures that were being undertaken?That's correct.'

The first written report of the bribery investigation and the role of Brown was prepared by Brown on 1 February 2009[1211] in advance of a board meeting scheduled for 9 February 2009 in Dubai. Brown gave evidence that at this time Soheil was his boss, holding the position of Managing director of Emirates Sunland[1212] and that almost everything [Brown] did that had any significant decision-making, [Brown] would always check through [Soheil][1213]. Brown also gave evidence that Ron Eames was a director of Sunland Group Limited, chairman of the audit committee and a partner of law firm Phillips Fox and that Eames was visiting Dubai in February 2009 for the board meeting[1214] to attend a board meeting and as the events had recently happened, we took advantage of him being there to bring him up to speed with what was going on.[1215] Although Brown said further that he wanted to tell Eames about the history and the investigations and where it was at at that point in time [1216], he also told the Court that the report was the first information given to Ron Eames about what was going on.[1217]"

341 It seems that there was also a paucity of reporting to the Sunland Board in relation to the Dubai proceedings, which was clearly a very important matter.[1218]

342 Reed and the Prudentia parties and Joyce submitted that it was not open for Sunland to make submissions on the application if the rule in Jones v Dunkel,[1219] which they said was not applicable in the circumstances of this case.

343 There is no question that Sunland made allegations of a most serious nature against parties in this case; particularly against Reed, Prudentia and Joyce. Those allegations are based on representations which Sunland alleged were made with respect to Plot D17 and in relation to Sunland's alleged reliance on those representations. The allegations and issues in relation to them have already been considered in some detail. Sunland's case, based on these allegations has, for the reasons already set out, failed comprehensively. I found, even accepting the Sunland evidence at face value,[1220] that Sunland failed to establish its case based on both the alleged representations and alleged reliance. Sunland has demonstratively failed to meet its burden under s 140 of the Evidence Act and, in my view, has not even come close to establishing its pleaded causes of action; statutory or tortious.

344 It follows that none of the defendants, Reed, Prudentia, Hanley or Joyce, has any case to answer. Consequently, it is not open to the Court to draw inferences adverse to any of the defendants on the basis of the rule in Jones v Dunkel. This rule, or its equivalent in other jurisdictions, has been referred to and discussed in many cases and texts, but its nature and rationale remains the same:[1221] for example, O'Donnell v Reichard[1222] and Kuhl v Zurich Financial Services Australia Ltd to which Sunland made reference.[1223] Kuhl provides an example of the application of the rule in Jones v Dunkel in terms of the significance of the failure to call a party as a witness, which the High Court said may carry greater weight in persuading the Court to draw an unfavourable inference against that party. In this respect, Heydon, Crennan and Bell JJ said:[1224]

_"_The rule in Jones v Dunkel is that the unexplained failure by a party to call a witness may in appropriate circumstances support an inference that the uncalled evidence would not have assisted the party's case. That is particularly so where it is the party which is the uncalled witness. The failure to call a witness may also permit the court to draw, with greater confidence, any inference unfavourable to the party that failed to call the witness, if that uncalled witness appears to be in a position to cast light on whether the inference should be drawn" [emphasis added].

This application of the rule in Jones v Dunkel in Kuhl does, however, proceed on the basis that the rule is, in the circumstances, otherwise applicable. In the circumstances of this case, the rule does not apply against the defendants because, for the reasons indicated, the threshold for its application is not reached.

345 As I made clear in Tenth Vandy Pty Ltd v Natwest Markets Australia Pty Ltd,[1225] no inference is to be drawn against a defendant in circumstances where a submission was made that the plaintiff has not made out a case for the defendant to answer:

"Applying the reasoning in Jones v Dunkel, I am of the opinion that no inference can be drawn in the present circumstances unless and until the party bearing the burden of proof of its case (the plaintiff) has by the evidence it relies upon established a case for the defendant to answer. If and when the plaintiff were to establish its case, then the defendant may, if it did not call evidence to rebut the case, be left in the position of arguing its case against the plaintiff's unchallenged or uncontradicted evidence. This may of itself, or with the aid of inferences according to the rule in Jones v Dunkel, establish the plaintiff's case. However, I am of the opinion that the rule in Jones v Dunkel may not be resorted to by a party, in effect, to fill in the facts of its case before the threshold for the operation of the rule is reached..."

It was submitted by Sunland that this case was distinguishable.[1226] It is not clear from the Sunland submissions on what basis it is said that Tenth Vandy is distinguishable. In any event, I do not accept that this statement from the judgment in that case is anything but a statement of universal application with respect to the rule in Jones v Dunkel, which, on the authorities, applies in circumstances such as the present, where a plaintiff has failed to reach the threshold of establishing a case for a defendant to answer.

346 In similar circumstances, Kaye J in Jason Henry Oakley and Lisa Tomlinson v Insurance Manufacturers of Australia Pty Ltd[1227] said on a no case submission:

"On a no case submission, the judge cannot draw an inference against the party making the submission ('the moving party') based upon the absence of evidence from that party." [footnotes omitted]

347 More specifically, the rule in Jones v Dunkel "... cannot be used to fill gaps in the evidence, or to convert conjecture and suspicion into evidence".[1228] In this respect, Kitto J stated:[1229]

"One does not pass from the realm of conjecture into the realm of inference until some fact is found which positively suggests, that is to say provides a reason, special to the particular case under consideration, for thinking it likely that in that actual case a specific event happened or a specific state of affairs existed."

348 The reason for these constraints on the ambit of the rule in Jones v Dunkel are clear. Without them, it would be open to a party in civil proceedings, in effect, to reverse the usual onus of proof, by putting up a weak or spurious case and then requiring evidence in rebuttal from the defendant which the plaintiff might hope to use to make out its own case - to "fill in the gaps". Sunland's reliance on the rule in the present circumstances is, in my view, a paradigm "gap filling" exercise which the rule does not permit.

349 The rule also applies to evidence in chief when, in the particular circumstances, the most natural inference is that the party feared the answers if it did so.[1230] In this respect, it was submitted against Sunland that adverse inferences should be drawn against it as a result of its failure to ask a variety of questions in re-examination.[1231] It is not, however, necessary to consider those issues because of the view I have taken in relation to Sunland's case. Neither is it necessary, and for the same reason, to consider submissions against Sunland that the rule should be applied and inferences drawn against it as a result of its failure to call a number of witnesses, including Austin, Brearley and Clyde-Smith, who, it was said, might reasonably be expected to provide evidence relevant to critical parts of Sunland's case.

350 Additionally, in the present circumstances, there is no basis for application of the rule in Browne v Dunn.[1232] The rule in Browne v Dunn is an important rule of practice, designed to ensure fairness by seeking to ensure that the witnesses of each party have the opportunity to respond to the opposing case, as is indicated by the formulation of the rule by Hunt J in Allied Pastoral Holdings Pty Ltd v FCT:[1233]

"It has in my experience always been a rule of professional practice that, unless notice has already clearly been given of the cross-examiner's intention to rely upon such matters, it is necessary to put to an opponent's witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings. Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence, or the inferences to be drawn from it, and to allow the other party the opportunity to call evidence either to corroborate that explanation or to contradict the inference sought to be drawn."

This rule does not, however, apply in the present circumstances because, again, Sunland's case never reached a threshold which would require, as a matter of fairness, any case against it to be put to its witnesses. Further, and in any event, the defendants chose not to put a contrary case, in which case the rule of practice, which is Browne v Dunn, had no application.

Trade Practices Act

351 As noted in more general terms previously, the Sunland case seeks to establish liability on the basis of provisions of the TPA, the provisions of the FTA and also on the basis of tortious liability in deceit. More particularly, reliance is placed by Sunland on ss 52 and 82 of the TPA[1234] and also ss 53(aa), 53(g) and 53A of the TPA.[1235] These latter provisions prohibit the making of false or misleading representations in connection with the promotion or supply of goods or services; "services", being defined broadly.[1236] These provisions might be said to complement the more broadly based provisions of s 52 of the TPA, which prohibits misleading or deceptive conduct. In this vein, Miller observes:[1237]

"Section 53 supports s 52 by enumerating specific types of conduct which, if engaged in by a corporation in trade or commerce in connection with the promotion or supply of goods or services, will give rise to a breach of the Act. Although a number of the enumerated types of conduct refer to 'false or misleading' representations rather than 'misleading or deceptive' representations (s 52) there is no material difference when dealing with misleading conduct: ACCC v Dukemaster Pty Ltd [2009] FCA 682; (2009) ATPR 42-290.

Sunland also relies upon the accessorial liability provisions of s 75B of the TPA and also s 82 of that Act which provides for actions for damages. The effect of s 82 of the TPA is to give a plaintiff a right to recover their "loss or damage conduct of another person that was done in contravention of Part ... V ...". Part V of the TPA includes ss 52 and 53 of that Act.

352 The principles applicable to the application of s 52 of the TPA are most helpfully summarised by Gordon J in ACCC v Dukemaster Pty Ltd,[1238] by reference to Global Sportsman Pty Ltd v Mirror Newspapers Ltd.[1239] It is helpful in the present context to set out the principles which were restated by Gordon J:[1240]

"[10] The following principles are worth restating.

1. A contravention of s 52(1) of the TPA is established by 'conduct' which is misleading or deceptive or likely to mislead or deceive: Global Sportsman Pty Ltd [1984] FCA 180; 2 FCR 82, 87. The 'conduct', in the circumstances, must lead, or be capable of leading, a person into error (Hannaford (t/as Torrens Valley Orchards) v Australian Farmlink Pty Ltd [2008] FCA 1591 at [252] citing Taco Company of Australia Inc v Taco Bell Pty Ltd [1982] FCA 136; (1982) 42 ALR 177 at 200; Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44; (1982) 149 CLR 191 at 198) and the error or misconception must result from 'conduct' of the corporation and not from other circumstances for which the corporation is not responsible: Global Sportsman Pty Ltd [1984] FCA 180; 2 FCR 82, 91. 'Conduct' is likely to mislead or deceive if there is a 'real or not remote chance or possibility regardless of whether it is less or more than fifty per cent': Global Sportsman Pty Ltd [1984] FCA 180; 2 FCR 82, 87.

2. Section 52(1) is concerned with the effect or likely effect of 'conduct' upon the minds of that person or those persons in relation to whom the question of whether the 'conduct' is or is likely to be misleading or deceptive falls to be tested. The test is objective and the Court must determine the question for itself: Global Sportsman Pty Ltd [1984] FCA 180; 2 FCR 82, 87. Section 52 is not designed for the benefit of persons who fail, in the circumstances of the case, to take reasonable care of their own interests: Elders Trustee and Executor Co Ltd v E G Reeves Pty Ltd [1987] FCA 332; (1987) 78 ALR 193 at 241. Moreover, it would be wrong to select particular words or acts which although misleading in isolation do not have that character when viewed in context: Elders Trustee [1987] FCA 332; 78 ALR 193 at 241 citing Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44; (1982) 149 CLR 191 at 199.

3. 'Conduct' can, of course, include making a statement which is misleading or deceptive or likely to mislead or deceive: Global Sportsman Pty Ltd [1984] FCA 180; 2 FCR 82, 88.

4. By making a statement of past or present fact, a corporation's state of mind is irrelevant unless the statement involved the state of the corporation's mind: Global Sportsman Pty Ltd [1984] FCA 180; 2 FCR 82, 88. Contravention of s 52(1) does not depend upon the corporation's intention or its belief concerning the accuracy of the statement of fact but upon whether the statement conveys a meaning which is false. A false meaning will be conveyed if what is stated concerning the past or present fact is inaccurate but also if, although literally true, the statement conveys a meaning which is false.

5. Precisely the same principles control the operation of s 52(1) to statements involving the state of mind of the maker when the statement was made (eg promises, predictions and opinions). A statement which involves the state of mind of the maker ordinarily conveys the meaning (expressly or impliedly) that the maker of the statement had a particular state of mind when the statement was made and, commonly, that there was a basis for that state of mind: Global Sportsman Pty Ltd [1984] FCA 180; 2 FCR 82, 88.

6. A statement of opinion will not be misleading or deceptive or likely to mislead or deceive merely because it turns out to be incorrect, misinforms or is likely to do so: Elders Trustee [1987] FCA 332; 78 ALR 193, 242 and Bateman v Slatyer (1987) 71 ALR 553 at 559. An incorrect opinion does not of itself establish that the opinion was not held by the person who expressed it or that it lacked any or any adequate foundation: Global Sportsman Pty Ltd [1984] FCA 180; 2 FCR 82, 88. An expression of an opinion which is identifiable as an expression of opinion conveys no more than that the opinion is held and perhaps that there is a basis for the opinion. If that is so, an expression of opinion however erroneous misrepresents nothing: Global Sportsman Pty Ltd [1984] FCA 180; 2 FCR 82, 88.

7. However, an opinion may convey that there is a basis for it, that it is honestly held and when it is expressed as the opinion of an expert, that it is honestly held upon rational grounds involving an application of the relevant expertise. If the evidence shows that the opinion was not held or that it lacked any or any adequate foundation, particularly if the opinion was expressed as an expert, a statement of opinion may contravene s 52 of the TPA: Elders Trustee [1987] FCA 332; 78 ALR 193, 242, proposition (4): see also Hannaford [2008] FCA 1591 at [253] and RAIA Insurance Brokers Ltd v FAI General Insurance Co Ltd [1993] FCA 92; (1993) 41 FCR 164; Murphy v Overton Investments Pty Ltd [2004] HCA 3; (2004) 216 CLR 388; NC Seddon and MP Ellinghaus, Cheshire and Fifoot's Law of Contract (9th Australian Edition, 2008), [11.116]."

353 In the context of these principles of more general application with respect to the operation and application of s 52 of the TPA, Reed, the Prudentia parties and Joyce sought to identify the principles applicable in the particular circumstances of this proceeding:[1241]

"27. The principles that assist this Court in applying section 52 of the TPA are as set out below:

(a) Section 52(1) is concerned with the effect or likely effect of 'conduct' upon the minds of that person or those persons in relation to whom the question of whether the conduct is or is likely to be misleading or deceptive falls to be tested. The test is objective and the Court must determine the question for itself.[1242]

(b) Reasonable inferences, reasonable assumptions and reasonable expectations arising from objectively determined circumstances will be in the constructive knowledge of the parties. An objective test excludes from consideration subjective matters (knowledge, intention) not known to the parties.[1243]

(c) The 'conduct', in the circumstances, must lead or be capable of leading a person into error[1244] and the error or misconception must result from conduct of the alleged contravenor and not from other circumstances for which the alleged contravenor is not responsible.[1245]

(d) Conduct is likely to mislead or deceive if there is a 'real or not remote chance or possibility regardless of whether it is less or more than fifty per cent'.[1246]

(e) It is wrong to select some words or acts which although misleading in isolation do not have that character when viewed in context.[1247] The identification of the impugned conduct and what it conveys or communicates to the persons to whom it is directed must be assessed with regard to all relevant surrounding circumstances. Not all circumstances are relevant: conduct cannot be attributed to a defendant unless he or she had actual or constructive knowledge of the circumstances that affect its content. That means that contextual circumstances of which a defendant had no actual or constructive knowledge that alter the scope of what would otherwise be attributed to him or her, are irrelevant.[1248]

(f) As a general proposition, s 52 does not require a party to commercial negotiations to volunteer information that will be of assistance to the decision-making of the other party. It does not impose on a party an obligation to volunteer information in order to avoid the consequences of the careless disregard for its own interests of another party of equal bargaining power and competence.[1249]

(g) By making a statement of past or present fact, the state of mind of the person who makes that statement is irrelevant unless the statement involved the state of that person's mind.[1250]

28. Whether particular conduct is likely to mislead or deceive involves considering a notional cause and effect relationship between the conduct and the state of mind of the relevant person. The test is necessarily objective.[1251] In this case, one asks what the reasonable person in the position of Sunland would have understood by the alleged conduct of Joyce, against the context of all relevant surrounding circumstances. Any error must result from conduct of Joyce and not from other matters for which he is not responsible.

29. In characterising the alleged conduct of Joyce in relation to the plaintiffs, one must bear in mind what matters of fact each knew about the other of them as a result of the nature of their dealings and the conversations between them, or which each may be taken to have known.[1252] Relevant considerations include that each of Joyce, Brown and Abedian were sophisticated and experienced businessmen.[1253]

30. A person does not avoid liability for breach of s 52 because the person who has been the subject of misleading or deceptive conduct could have discovered the misleading or deceptive conduct by proper inquiries.[1254] However, depending on the circumstances, other related conduct may have the effect of modifying or erasing whatever is misleading in the conduct complained of.[1255]

31. For example, the fact that the plaintiffs in this case had the opportunity to but did not take steps which might or would have corrected a misapprehension or wrong assumption can be relevant to an inquiry as to whether conduct should be characterised as misleading or deceptive.[1256]"

I accept this identification of relevant principles as both supported by the authorities and as being directed to the relevant issues in this case.

354 In relation to the general principles applicable with respect to the application and operation of s 52, as restated by Gordon J in Dukemaster and as applied in the submissions of Reed and the Prudentia parties and Joyce, as set out above, I do not understand Sunland to be submitting to the contrary in terms of the general principles but, rather, to the contrary with respect to their application in the present circumstances. Nevertheless, Sunland could not gainsay that each of Reed, Joyce, Brown and Abedian were sophisticated and experienced businessmen.

355 Applying these principles in the present circumstances, and on the basis of the matters discussed in some detail in the preceding reasons, I am of the opinion that there has been no misrepresentation by the defendants, or any of them, by words or other conduct with respect to Plot D17 in breach of the provisions of s 52 of the TPA as alleged by Sunland.[1257] Rather, the position with respect to that plot was very clear, particularly in the conversation leading up to the "put your foot on it" email.[1258] Furthermore, it was clear that Sunland was not even able to articulate, with any degree of clarity or consistency, the nature of the representations or other conduct about which it complained;[1259] or, more particularly, the nature of some "right" or "control" alleged with respect to Plot D17.[1260] Quite apart from this particular event or events in the course of communications between and the conduct of the parties, it should be noted that the authorities emphasise that "conduct" is not coextensive with "representation".[1261] It is clear that the likely effect of "conduct" upon the mind of a party such as Sunland must be considered objectively and in the context of all relevant surrounding circumstances; a position emphasised in the detailed consideration of the D17 transaction. In this context, it is also clear that liability for a breach of s 52 is not avoided simply because the person claiming to be the subject of the misleading and deceptive conduct could have discovered the misleading or deceptive conduct by proper inquiries.[1262] Nevertheless, other related conduct may have the effect of "erasing whatever is misleading in the conduct" complained of. In this respect, McHugh J said, in Butcher v Lachlan Elder Realty Pty Ltd:[1263]

"[152] This is not to say that a disclaimer should be ignored for the purposes of assessing whether a contravention of s 52 has occurred. As Miller notes in Miller's Annotated Trade Practices Act,[1264] the conduct must be considered as a whole. This requires consideration of whether the conduct in question, including any representations and the disclaimer, is misleading or deceptive or is likely to mislead or deceive. If a disclaimer clause has the effect of erasing whatever is misleading in the conduct, the clause will be effective, not by any independent force of its own, but by actually modifying the conduct. However, a formal disclaimer would have this effect only in rare cases. Thus, in Benlist Pty Ltd v Olivetti Australia Pty Ltd, Burchett J said:[1265]

'It has been held on many occasions that the perpetrator of misleading conduct cannot, by resorting to [a disclaimer] clause, evade the operation of the [Act]. Of course, if the clause actually has the effect [of] erasing whatever is misleading in the conduct, the clause will be effective, not by any independent force of its own, but by actually modifying the conduct. However, I should think it would only be in rare cases that a formal disclaimer would have that effect.' (Emphasis added)"

356 In the circumstances of the D17 transaction, the circumstances which have been considered in detail, Sunland's failure to make any enquiries that would have been likely to establish the position with respect to "rights" in or "control" of Plot D17 is inexplicable. Throughout the transaction, Sunland had the ability to do so at any time, it was familiar with land transactions of the same kind in Dubai (and had previously dealt with DWF with respect to the purchase of nearby Waterfront land) and, in any event, proper inquiries became an imperative after the conversations with senior officers of DWF which led to the "put your foot on it" email.[1266]

357 Consequently, I am of the opinion that there was no conduct on behalf of Reed, the Prudentia parties or Joyce (to the extent that any allegations in this respect were made against him)[1267] prohibited by s 52 of the TPA. Moreover, to the extent that particular instances of conduct might, viewed in isolation, be said to be misleading or deceptive, that position is dispelled when they are viewed in the context of the whole and, particularly in the context of events such as those evidenced by and with respect to the "put your foot on it" email. Similarly, the provisions of the Implementation Agreement or MOU in draft and final form, including the agreement with Hanley, properly construed in light of the surrounding circumstances and having regard to the totality of the provisions of these documents (draft and final), does not amount to a species of conduct of a prohibited kind. In this respect, one cannot focus, for example, on a recital which was explicable and understandable in general terms and, in any event, governed by the operative parts of those documents in a manner which made the position quite clear.[1268]

358 The relevant provisions of s 82 of the TPA provides that:

"... a person who suffers loss or damage by conduct of another person that was done in contravention of a provision of Part ... V ... may recover the amount of the loss or damage by action against that other person or against any person involved in the contravention."

359 As the language of s 82 makes clear, in order to establish liability under these provisions, it is necessary first to identify "conduct" prohibited by s 52 of the TPA and, secondly, to establish a causal connection between that conduct and the loss and damage sought to be recovered. This point is emphasised by the High Court in Campbell v Backoffice Investments Pty Ltd[1269] where, in the context of the provisions of ss 42 and 68 of the New South Wales Fair Trading Act 1987 (provisions which correspond to ss 52 and 82 of the TPA), the Court said:[1270]

"[102] Using tools of analysis drawn from the common law of deceit (misrepresentation and reliance) within the statutory framework provided by ss 42 and 68 of the Fair Trading Act may sometimes be helpful in identifying contravening conduct and deciding whether loss or damage was suffered by the contravention. But as McHugh J correctly pointed out in Butcher v Lachlan Elder Realty Pty Ltd,[1271] the 'conduct' with which s 52 of the Trade Practices Act 1974 (Cth) deals is not confined to '"representations", whether they be representations as to matters of present or future fact or law'.[1272] This proposition applies with equal force to s 42 of the Fair Trading Act. References to misrepresentation or reliance must not be permitted to obscure the need to identify contravening conduct (here, misleading or deceptive conduct) and a causal connection (denoted by the word 'by') between that conduct and the loss and damage allegedly suffered. As McHugh J also pointed out in Butcher,[1273] with particular reference to s 52 of the Trade Practices Act, but with equal application to s 42 of the Fair Trading Act:

"The question whether conduct is misleading or deceptive or is likely to mislead or deceive is a question of fact. In determining whether a contravention of s 52 has occurred, the task of the court is to examine the relevant course of conduct as a whole. It is determined by reference to the alleged conduct in the light of the relevant surrounding facts and circumstances. It is an objective question that the court must determine for itself.[1274] It invites error to look at isolated parts of the corporation's conduct. The effect of any relevant statements or actions or any silence or inaction occurring in the context of a single course of conduct must be deduced from the whole course of conduct.[1275] Thus, where the alleged contravention of s 52 relates primarily to a document, the effect of the document must be examined in the context of the evidence as a whole.[1276] The court is not confined to examining the document in isolation. It must have regard to all the conduct of the corporation in relation to the document including the preparation and distribution of the document and any statement, action, silence or inaction in connection with the document.'

(Emphasis added)"

360 The requirement under s 82 of the TPA that the loss or damage be suffered "by" the contravening conduct generally results in the damages being assessed not on the basis of expectation loss but, rather, by reference to the detriment actually suffered as a consequence of reliance upon the contravening conduct.[1277]

361 Subjective factors relevant to the particular individual or individuals claiming to have been misled or deceived may need to be taken into account but, again, in the context of the particular circumstances, including any contemporaneous disclaimer. Thus, French CJ said in Campbell v Backoffice Investments Pty Ltd:[1278]

"[27] In Butcher v Lachlan Elder Realty Pty Ltd[1279] the approach to characterisation of conduct directed to identified individuals was set out in the joint judgment of the majority as follows:[1280]

'The plaintiff must establish a causal link between the impugned conduct and the loss that is claimed. That depends on analysing the conduct of the defendant in relation to that plaintiff alone. So here, it is necessary to consider the character of the particular conduct of the particular agent in relation to the particular purchasers, bearing in mind what matters of fact each knew about the other as a result of the nature of their dealings and the conversations between them, or which each may be taken to have known.'

Although this passage begins by referring to the need to establish a causal link between the impugned conduct and the claimed loss, it is clear that thereafter their Honours were addressing the task of characterisation.

[28] Determination of the causation of loss or damage may require account to be taken of subjective factors relating to a particular person's reaction to conduct found to be misleading or deceptive or likely to mislead or deceive. A misstatement of fact may be misleading or deceptive in the sense that it would have a tendency to lead anyone into error. However, it may be disbelieved by its addressee. In that event the misstatement would not ordinarily be causative of any loss or damage flowing from the subsequent conduct of the addressee.

[29] A person accused of engaging in misleading or deceptive conduct may claim that its effects were negated by a contemporaneous disclaimer by that person, or a subsequent disclaimer of reliance by the person allegedly affected by the conduct. The contemporaneous disclaimer by the person engaging in the impugned conduct is likely to go to the characterisation of the conduct. A subsequent declaration of non-reliance by a person said to have been affected by the conduct is more likely to be relevant to the question of causation.[1281]"

It follows that the fact that the party claiming to be misled or deceived had the opportunity to but did not take steps which might or would have corrected a misapprehension or wrong assumption can be relevant to an inquiry as to whether loss or damage has been suffered by the particular conduct.[1282] Clearly, this was the position as a result of events leading up to the "put your foot on it" email and, more generally, having regard to Sunland's access to senior DWF officers.[1283]

362 It is not necessary for the impugned conduct to be the sole cause of the loss and damage in order for a party to claim an award of damages under s 82 of the TPA. It is sufficient that the contravening conduct was a cause of the loss and damage.[1284] Nevertheless, there must be established a sufficient and direct link between the conduct and the consequences;[1285] there must be a causal connection between the defendant's conduct and the plaintiff's misapprehension.[1286] These aspects of the statutory requirements were helpfully amplified by Sunland's submissions on the propositions in relation to reliance flowing from the authorities:[1287]

"193. The following propositions in relation to reliance may be extracted:

(a) In the context of the TPA, in order for there to be the required causal relationship between a contravention of section 52 and loss or damage, so as to satisfy the requirements of section 82(1), it is not necessary that the contravention be the sole cause of the loss or damage: Henville v Walker [2001] HCA 52; (2001) 206 CLR 459 at 469 [14], at 497 [119] and at 509 [163].

(b) It is not a bar to recovery that that there is another cause, even a cause which, on its own account, satisfies the 'but for' test.

(c) It is enough to demonstrate that contravention of a relevant provision of the TPA was a cause of the loss or damage sustained: I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41; (2002) 210 CLR 109 at 128 [57] per Gaudron, Gummow and Hayne JJ; MAM Mortgages Ltd v Cameron Bros [2002] QCA 330 at [10] per McPherson JA.

(d) The expression 'a cause' means 'materially contributed to': I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41; (2002) 210 CLR 109 at 130 [62] per Gaudron, Gummow and Hayne JJ. As long as the breach materially contributed to the damage, a causal connection will ordinarily exist even though the breach, without more, would not have brought about the damage: Henville v Walker [2001] HCA 52; (2001) 206 CLR 459 at 493 [106].

194. Particularly relevant to this case is the deceit case of Gould v Vaggelas [1984] HCA 68; (1985) 157 CLR 215, where the test for reliance was addressed by Wilson J and Brennan J at some length.

195. Wilson J observed at 236 that a representation will be regarded as a cause of loss even though it played only a minor part in contributing to the loss.

196. In Gould Brennan J observed at 251 - 252:

'If the desire for ownership be sufficiently intense, a prospective purchaser is wont to discount the doubts and suspicions that might otherwise hold him back from acting on anything contained in a vendor's representation and, by giving credence to at least part of what he has been told, to tip the scales in favour of buying. If the representor leads the representee to believe any part of the representation which is, and is known by the representor, to be untrue and the representee acts on that belief and suffers damage, the representor does not escape liability because the representee did not believe the representation in full. If the representee's desire to own what was for sale leads to the giving of some credence to the representation which would not otherwise have been given, the representee's self-induced gullibility is no defence to the representor. A knave does not escape liability because he is dealing with a fool.'

197. Wilson J addressed the test for reliance at 235-239 in the following passage:

'Having made those findings [i.e. as to the fraudulent misrepresentations made by Mr Vaggelas], the trial judge proceeded to deal with the submission strongly advanced at the trial by Mr. Pincus and maintained both before the Full Court and this Court that a misrepresentation is no ground for relief unless it induces the representee to enter into the contract and that on the evidence the Goulds had failed to establish the fact of inducement. His Honour correctly elucidated ... the applicable principles, which can be re-stated as follows:

1. Notwithstanding that a representation is both false and fraudulent, if the representee does not rely upon it he has no case.

2. If a material representation is made which is calculated to induce the representee to enter into a contract and that person in fact enters into the contract there arises a fair inference of fact that he was induced to do so by the representation.

3. The inference may be rebutted, for example, by showing that the representee, before he entered into the contract, either was possessed of actual knowledge of the true facts and knew them to be true or alternatively made it plain that whether he knew the true facts or not he did not rely on the representation.

4. The representation need not be the sole inducement. It is sufficient so long as it plays some part even if only a minor part in contributing to the formation of the contract.

... However, decisions of this Court leave no room to doubt that the ultimate onus of proving inducement rests upon the party seeking relief in respect of the fraudulent misrepresentation. ...

... At the same time, one can readily understand why it is in cases of deceit that a tribunal whose duty it is to find the facts may require a defendant to make some answer to the case that is put against him. Such cases are of a kind where in the general experience of mankind the facts speak for themselves. Where a plaintiff shows that a defendant has made false statements to him intending thereby to induce him to enter into a contract and those statements are of such a nature as would be likely to provide such inducement and the plaintiff did in fact enter into that contract and thereby suffered damage and nothing more appears, common sense would demand the conclusion that the false representations played at least some part in inducing the plaintiff to enter into the contract. However, it is open to the defendant to obstruct the drawing of that natural inference of fact by showing that there were other relevant circumstances. Examples commonly given of such circumstances are that the plaintiff not only actually knew the true facts but knew them to be the truth or that the plaintiff either by his words or conduct disavowed any reliance on the fraudulent representations. It is entirely accurate to speak of an onus resting on a defendant to draw attention to the presence of circumstances such as those I have described in order to show that the inference of the fact of inducement which would ordinarily be drawn from the fraudulent making of a false statement calculated to induce a person to enter into a contract followed by entry into that contract should not in all the circumstances be drawn. But it is no more than an evidentiary onus - an obligation to point to the existence of circumstances which tend to rebut the inference which would ordinarily be drawn from the primary facts. When all the facts are in, the fact-finding tribunal must determine whether or not it is satisfied on the balance of probabilities that the misrepresentations in question contributed to the plaintiff's entry into the contract. The onus to show that they did is a condition precedent to relief and rests at all times on the plaintiff. ...

... Once it be established, as was found by the trial judge, that without any assurance whatever of the profitability of the resort save that which was fraudulently misrepresented to them by Mr Vaggelas the Goulds were prepared to pay more than two million dollars for the property the conclusion that those misrepresentations played some part in persuading them to engage in the transaction is well-nigh irresistible. The members of the Full Court were unanimous in upholding the decision of Connolly J. I respectfully agree with them.'[1288]

'An inference of inducement may be drawn when a party enters into a contract after a material representation has been made to him, but it is no more than an inference of fact and it is settled law that such an inference may be rebutted by the facts of the case: Holmes v Jones; Smith v Chadwick. The tribunal of fact may infer that such a material misrepresentation induced the representee to enter into the contract and the fact that there were other inducements to him to do so does not necessarily preclude the drawing of that inference. The relevant question for the tribunal of fact to answer on all the evidence is whether the misrepresentation alone, or with or notwithstanding other things that accompanied it, was a real inducement, or one of the real inducements to the plaintiff to do whatever caused his loss: Nicholas v Thompson, per Cussen ACJ; Edgington v Fitzmaurice, per Bowen LJ; Arnison v Smith, per Lord Halsbury L.C'

199. Wilson J's four principles in Gould have been referred to and adopted in a number of subsequent cases.[1289]

200. Beazley JA put it simply:

'Reliance can be inferred from all the circumstances, including from a party's conduct: see Hanave Pty Ltd v LFOT Pty Ltd [1999] FCA 357; (1999) 43 IPR 545 where the court held that causation does not have to be established by direct evidence of the part the relevant representation played. It is open to the court to determine "what effect must be taken to have resulted": per Kiefel J at 556.'[1290]"

363 On the basis of these authorities and the conduct of the parties and the events which have already been examined in detail, I am of the opinion that it is clear that there was no reliance on the part of Sunland on the representations or conduct of Reed, the Prudentia parties or Joyce which could be said to have caused any loss or damage to it.[1291] In particular, I am of the opinion that, for the reasons already set out in detail, Sunland simply made a commercial decision to ensure that it was in a position to purchase and develop Plot D17 exclusively without having to do so under any joint venture arrangement with the Prudentia parties, having regard to the very significant profit potential that it assessed was likely to flow to it on this exclusive basis.[1292] Consequently, Sunland was little concerned about the basis upon which it paid the fee - it simply wanted Reed and the Prudentia parties to "walk away".[1293]

Sections 53(aa), 53(g) and 53A of the TPA

364 Sunland alleges that each of Reed, the Prudentia parties and Joyce contravened ss 53(aa), 53(g) and 53A of the TPA.[1294] Section 53(aa) prohibits false representations in connection with, among other things, the supply or possible supply of goods or services; including the "quality" of goods or services.[1295] Section 53(g) prohibits the making of a false or misleading representation concerning the existence, exclusion or effect of any condition, warranty, guarantee, right or remedy.

365 In Given v CV Holland (Holdings)Pty Ltd,[1296] the Federal Court adopted the definition of "quality" set out in The Shorter Oxford Dictionary, being "an attribute, property, special feature; the nature, kind or character (of something)". The Court said, further, that "if a representation is in fact not correct, it comes within the words of the section because [t]here is nothing novel in equating 'false' with 'contrary to fact'".[1297] Consequently, in this and other cases in which the Court has examined s 53, a similar analysis has been brought to bear as is applied to claims under s 52 of the TPA.[1298] More particularly, the purpose of these sections of the TPA has been described as being to "[support] s 52 by enumerating specific types of conduct which, if engaged in by a corporation in trade or commerce in connection with the promotion or supply of goods or services, [would] give rise to a breach of the Act".[1299]

366 Section 53A of the TPA provides, as far as is relevant, that:

"(1) A corporation shall not, in trade or commerce, in connexion with the sale or grant, or the possible sale or grant, of an interest in land or in connexion with the promotion by any means of the sale or grant of an interest in land:

(b) make a false or misleading representation concerning the nature of the interest in the land, the price payable for the land, the location of the land, the characteristics of the land, the use to which the land is capable of being put or may lawfully be put or the existence or availability of facilities associated with the land; ..."

367 For the purposes of the provisions of s 53A of the TPA, the word "interest" means, relevantly, "... a legal or equitable estate or interest in land by right, power, or privilege over, or in connection with, the land".[1300] Sunland provided no particulars of any alleged breach of s 53A. Nevertheless, the evidence of Brown and Abedian as to their knowledge of the price of Plot D17[1301] and the role played by Sunland in assisting DWF to "create" Plot D17[1302] makes it clear that Sunland's pleading insofar as it relates to "price" and "characteristics" is not sustainable on the basis of these provisions. Consequently, the question for the Court arising out of the s 53A provisions is limited to whether the alleged misrepresentations concern "the nature of the interest in the land". As is clear from the previous detailed discussion in relation to the D17 transaction, there was no misrepresentation or conduct on the part of any of the defendants in relation to the "nature of the interest in the land". Rather, the issue in relation to Plot D17 goes to entitlement to deal with the "interest" in that land which was being sold. There was no issue as to the nature and extent of that "interest". Additionally, it does follow that pleading on the basis of the provisions of s 53A cannot be sustained in relation to a plot of land which did not exist at the relevant time or times; which was the position with Plot D17.

368 Additionally, ss 53(aa), 53(g) and 53A require a representation to be "false" and, in the latter provision, also "misleading", or both, as opposed to being "misleading or deceptive". In the present proceedings, no meaningful distinction is usefully drawn between the two bases for the operation of these provisions and s 52 of the TPA. The vast majority of cases that discuss an alleged breach of the s 53 provisions coupled with an alleged breach of s 52 of that Act and deal with the "false or misleading" and "misleading or deceptive" aspect of the conduct without relevant distinction.[1303] Consequently, it follows that claims pursuant to ss 53(aa), 53(g) and 53A fall to be determined upon the same basis as applicable to s 52 of the TPA, namely, whether the alleged representations were "misleading or deceptive or likely to mislead or deceive".[1304] In any event, for the reasons already set out, I have not found any representation or conduct on the part of any of the defendants to be "misleading" or "deceptive" or that there were any representations that could be characterised as "false" in any respect.[1305] Additionally, I have found, specifically, that Sunland failed to prove the falsity of any of the pleaded representations.[1306]

Fair Trading Act

369 Sunland also pleads breaches of ss 9, 12(b), 12(k) and 12(n) of the FTA against Reed and the Prudentia parties; that is, Reed, Prudentia and Hanley. No allegation under this legislation is made against Joyce.

370 Section 12(b) of the FTA prohibits a person from falsely representing that services are of no particular value; s 12(k) prohibits the making of a false or misleading representation concerning the existence, exclusionary effect of any condition, warranty, guarantee, right or remedy; and s 12(n) prohibits the making of a representation that was false, misleading or deceptive in a material particular. The submissions made by Reed and the Prudentia parties and also by Joyce in relation to the operation and effect of ss 52, 53(aa), 53(g) and 53A of the TPA are equally applicable to these corresponding provisions of the FTA, as are my views with respect to these provisions. I do note, however, that the FTA does not contain any provision dealing specifically with false representations or other misleading or offensive conduct in relation to land, as does s 53A of the TPA. Nevertheless the field covered by the provisions of the FTA and the TPA, to which reference has been made, is not, in the present circumstances different in any relevant respect. Sub-s 159(1) of the FTA corresponds with s 82 of the TPA. Consequently my views with respect to s 82 are also equally applicable with respect to these FTA provisions. Section 158 of the FTA confers a broad power on the Court to make any order it considers fair in the circumstances provided for in that section. In view of the fact that, as I have found, there is no contravention of the FTA these provisions are not enlivened.

371 Sunland also relies upon the accessorial liability provisions contained in s 75B of the TPA against Reed and Hanley.[1307] It is, however, clear that for these provisions to be applicable, it is necessary that the relevant conduct had taken place in Australia; the provisions of s 75B not being enlivened by any extended jurisdiction under sub-s 5(1) of the TPA.[1308] Sunland submitted that this requirement was satisfied as a result of Reed's conduct in making telephone calls and sending emails from Victoria and by Hanley's conduct by engaging Freehills in Melbourne to forward the Implementation Agreement or MOU on its behalf on the basis that this amounted to misleading and deceptive conduct which took place in Australia.[1309] Further, it was submitted that Hanley had the requisite knowledge[1310] because Reed, who at all material times was its agent within the meaning of s 84(2) of the TPA, and who was a director of Hanley from 16 October 2007.

372 Having regard to my findings that there has been no breach of the prohibitions of s 52 and those parts of s 53 and also s 53A of the TPA relied upon by Sunland the question of accessorial liability does not arise; whether or not the requisite Australian connection were established.

373 The Australian operation of the TPA is reinforced and extended by its provisions in sub-ss 5(1), s 6(2)(a)(i) and 6(3); each of which extends the territorial operation of ss 52, 53(aa), 53(g) and 53A of the TPA to offshore conduct and the latter provisions in other respects.

374 Briefly, the provisions of sub-s 5(1) extend the operation of the TPA to "engaging in conduct outside Australia" with respect to the presently relevant provisions to bodies corporate incorporated or carrying on business within Australia; Australian citizens; or persons ordinarily resident within Australia.[1311] Sub-section 6(2)(a)(i) extends the territorial operation of the TPA to conduct between Australia and places outside Australia, and sub-s 6(3) extends to representations using telegraphic or telephonic services.

(a) section 5(1) of the TPA to extend the operation of ss 52, 53(aa), 53(g) and 53A to Hanley[1312] and to its offshore conduct;

(b) section 5(1) of the TPA to extend the operation of ss 52, 53(aa), 53(g) and 53A to Reed[1313] and to his offshore conduct;

(c) section 6(2)(a)(i) of the TPA to extend the operation of ss 52, 53(aa), 53(g) and 53A to Prudentia and Hanley's offshore conduct[1314]; and

(d) section 6(3) of the TPA to extend the operation of sub-ss 52, 53(aa), 53(g) and 53A to Reed.[1315]

376 Sunland did not plead that s 5(1) of the TPA extended the operation of ss 52, 53(aa), 53(g) and 53A to Prudentia and to its offshore conduct. In any event, it was submitted on behalf of Prudentia, that sub-s 6(2)(a)(i) of the TPA has no application in the present case and, consequently, Prudentia's offshore conduct is not caught by the TPA and the claims against it should be dismissed.[1316]

Section 5(1) - extra territorial application of the TPA

377 Sunland submitted that all of the defendants fall within reach of sub-s 5(1) of the TPA so that even if their conduct is regarded as occurring solely outside Australia, they are still caught by that Act. In this respect, Sunland submitted that:[1317]

(b) Reed is an Australian citizen and an Australian resident;

(d) Hanley should be regarded as carrying on business in Australia for the purposes of these proceedings, as it acted in effect as Prudentia's nominee, and it dealt with the plaintiffs through a Victorian solicitor, Sinn (of Freehills). It matters not, Sunland submitted, whether as a matter of formality Sinn was engaged or instructed by Reed or Prudentia. Hanley must, it said, have consented to Sinn acting for it, and given instructions to Freehills. The work done for Hanley, namely drawing the Hanley Agreement, communicating with the plaintiffs, and settling the transaction was done in Australia by Freehills.

378 Sunland notes that under s 5(3) of the TPA, Ministerial consent must be obtained prior to a hearing where damages are sought under s 52 of the Act for conduct that occurred outside Australia. It is apparently uncontroversial that the necessary consent was obtained by Sunland shortly after these proceedings were commenced in the Federal Court.

379 In relation to Hanley, Sunland pleads that because Hanley retained Sinn (hence Freehills) and instructed Freehills to prepare the Hanley Agreement, it was "carrying on business within Australia" within the meaning of sub-s 5(1) of the TPA.[1318] Hanley denied that it retained Freehills and says, rather, that Prudentia was the party retaining that firm.[1319] There is, however, no evidence of any engagement of Freehills by Hanley. Indeed, when these proceedings were before the Federal Court of Australia, Sunland obtained an order from Logan J, on 19 August 2010, that the Prudentia parties discover any letter of engagement by Hanley of Freehills. No letter of engagement was discovered. Reed and the Prudentia parties submitted that this was because none existed and on the evidence before the Court there is nothing to suggest to the contrary.

380 Additionally, Reed and the Prudentia parties submitted that even if there were evidence of Freehills being retained by Hanley and instructions given to that firm, this would not constitute "carrying on business" by that company. In this respect, reliance was placed on Hope v Bathurst City Council[1320] where Mason J (with whom the remainder of the High Court agreed) defined "carrying on business" as activities engaged in for the purpose of profit on a continuous and repetitive basis which possess something of a permanent character.[1321] Further, in Bray v F Hoffman La Roche Ltd,[1322] Merkel J said that the notion of carrying on business does not require that the foreign entity actually have an office in Australia.[1323] In so doing, his Honour applied the approach of Mason J in Hope v Bathurst City Council and emphasised that it does not matter whether the company claimed to be carrying on a business in Australia is making a profit, merely that it is carrying out repeated transactions of a commercial nature.[1324] A similar approach was adopted and applied by Palmer J in the Supreme Court of New South Wales in R T & Y E Falls Investments Pty Ltd v New South Wales[1325] where his Honour outlined propositions arising from previous cases in relation to the definition of "carrying on a business" for the purposes of the TPA and also State Fair Trading legislation:[1326]

"[78] A number of cases have examined the principles upon which a government department or agency will be held to be carrying on a business for the purposes of the Fair Trading Act and the corresponding provisions of the Commonwealth Trade Practices Act. From those cases, the following propositions can be derived:

- a government department or agency will be carrying on a business for the purpose of the Fair Trading Act and the Trade Practices Act when it is doing what any private trader might do, such as supplying goods or services for remuneration or buying and reselling goods;

- that the proceeds derived from the activity are not commercially adequate or are calculated to produce a loss does not, in itself, detract from the character of the activity as a business. The definition of 'business' in the Fair Trading Act and the Trade Practices Act includes a business not carried on for profit. Government departments or agencies may be expected in many cases to be carrying on a business not for the purpose of profit but to achieve a policy objective of government, ultimately at the expense of the public purse;

- the concept of carrying on a business requires that the subject activity be conducted with a degree of system, continuity and repetition. A single instance of the activity or engaging in the activity only in an ad hoc response to infrequent occurrences or circumstances will not normally indicate that a business is carried on;

- system, continuity and repetition in carrying out an activity are not sufficient on their own to characterise the carrying on of a business. There must always be present some element of commerce or trade such as a private citizen or trader might undertake. What is a sufficient degree of commerciality is a question of fact in each case;

- a person claiming under the Fair Trading Act or the Trade Practices Act in respect of a dealing with a government department or agency which carries on a business must show that the dealing occurred in the course of, and as part of, the carrying on of that business:

see Re Ku-ring-gai Co-operative Building Society (No 12) Ltd [1978] FCA 50; (1978) 36 FLR 134, esp at 167 per Deane J; J S McMillan Pty Ltd v Commonwealth (1997) 77 FCR 337 (Emmett J); Fasold v Roberts (1997) ATPR 41-561 (Sackville J); Plimer v Roberts (1997) 80 FCR 303; Paramedical Services Pty Ltd v The Ambulance Service of New South Wales [1999] FCA 548 (Hely J); Easts Van Villages v Minister Administering the National Parks & Wildlife Act [2001] NSWSC 559 (Matthews AJ); Corrections Corp of Australia Pty Ltd v Commonwealth [2000] FCA 1280; (2000) ATPR 41-787 (Finkelstein J). With these principles in mind, I turn to the facts of the present case."

381 Additionally, in National Commercial Bank and Anor v Wimborne and Ors,[1327] Holland J said that presence in Australia is not established by showing that the foreign corporation has appointed a local solicitor to commence or defend particular legal proceedings within the jurisdiction:[1328]

"At the test is one of being present by carrying on its business here it is hardly necessary to add that such presence is not established by showing that the foreign corporation has appointed a local solicitors to commence or defend particular legal proceedings in the jurisdiction; see Attorney-General v Bailey (Malta) Ltd [1963] 1 Lloyd's Rep 617 at 625".

382 In the present circumstances, there is no evidence of Hanley engaging in any commercial activities in Australia on a continuous, repetitive or systematic basis and, further, Hanley denies that it is carrying on business in Australia.[1329] This position is reinforced by the statement of Holland J in Wimborne, which supports my view that even if there were evidence of a retainer of Freehills by Hanley in the absence of evidence of any other commercial activities in Australia which would be consistent with it carrying on a business in this country, the mere engagement of a local firm of solicitors is not sufficient to produce this result.

383 More generally, it was submitted against Sunland that the critical conduct and aspects relevant to it took place in or was located within Dubai and not Australia:[1330]

(a) Plot D17 is land located in Dubai Waterfront, Dubai, in the UAE[1331];

(b) The vendor of Plot D17 was a limited liability company incorporated in the Emirate of Dubai[1332];

(c) The proposed joint venture between Prudentia and the Sunland parties concerned a development in Dubai;

(d) Brown was the International Design Director and then the Chief Operating Officer for the Dubai branch of Sunland at the relevant times and was in Dubai at the time he received the Representations and Hanley Representations[1333];

(e) The agreement that was acted upon by the parties was the Hanley Agreement[1334];

(f) The parties to the Hanley Agreement were SWB (incorporated in the British Virgin Islands[1335]) and Hanley (incorporated in Singapore)[1336];

(g) The governing law of the Hanley Agreement was the laws of the Emirate of Dubai and federal laws of the UAE[1337]; and

(h) Payment of the Hanley fee was from the Dubai account of the Sunland parties' Dubai based solicitors to Hanley, a Singaporean company[1338], via cheque with the exchange occurring in Dubai[1339].

My view that Hanley was not carrying on business in Australia at any relevant time is reinforced by these considerations.

384 Nevertheless, accepting this position, it appears clear that sub-s 5(1) of the TPA will, on the basis of its provisions, enliven the extraterritorial jurisdiction of the Act in the present circumstances for the reason that Prudentia is an Australian company, Reed is an Australian citizen and an Australian resident, and Joyce is an Australian citizen. This general position is, however, subject to some tension between the provisions of sub-s 5(1) and those of s 6 of the Act; a matter discussed further below.[1340]

TPA sub-s 6(2)(a)(i) - representations and Hanley Representations were made in trade or commerce between Australia and places outside Australia

385 Sub-section 6(2)(a)(i) of the TPA extends its operation to "trade or commerce between Australia and places outside Australia".

386 Sunland submitted that the transnational nature of the D17 transaction, with parties based in Victoria, Queensland and the UAE, with communications made between Australia and the UAE and decisions taken in both Australia and the UAE means that this case falls squarely within the reach of these provisions.[1341]

387 Further, in Olex Focas Pty Ltd v Skodaexport Co Ltd, on an application for an injunction, Batt J said:[1342]

"I consider that there is a serious question whether (and I find provisionally that) not only have there been communications between those parties between Australia and places outside Australia, namely India and the Czech Republic, but also some part of the plant contracted for was to be manufactured in Victoria and delivered in India: see, e.g., cl. 2 of the preliminary agreement of 20 March 1994 and various clauses in the Olex-Focas and Olex contracts cited for the first defendant. There is, therefore, a prima facie case and a serious question whether as between the plaintiffs and the first defendant there is trade and commerce between Australia and places outside Australia and whether conduct by way of making demands or authorising the making of demands under the guarantees is in trade and commerce between those parties between Australia and places outside Australia."

Similarly, it was accepted by Finn J in Leeks v FXC that a United States manufacturer of parachuting equipment which was sold in Australia (and which caused an accident in Australia) was caught by the provisions of sub-s 6(2) of the TPA.

388 In response, Reed and the Prudentia parties submitted that the Representations (and also the Hanley Representations), as pleaded, occurred on three separate occasions:

(a) representations made by Reed in a telephone conversation on 16 August 2007[1343] received by Brown in Dubai;

(b) representations made at a meeting on 19 August 2007 between Brown and Reed at Sunland's Dubai office;[1344] and

(c) representations within a draft of what became the Hanley Agreement attached to an email sent on 23 August 2007 by Reed (who was in Melbourne) to Brown (who was in Dubai).[1345] It is irrelevant, it was submitted, that this email may have been transmitted through an Australian server.[1346]

Consequently, it was submitted that the Representations and the Hanley Representations were not made in trade or commerce between Australia and places outside Australia and, accordingly, these provisions of sub-s 6(2) of the TPA have no application. Submissions were also made in the context of submissions referred to previously in support of the position advanced by the defendants that the conduct and events in relation to that conduct occurred in Dubai and not Australia.[1347]

389 In my opinion, cases such as Leeks v FXC which involved a foreign manufacturer exporting to Australia and similar situations where transactions and conduct clearly transcends international boundaries, are to be distinguished from the present circumstances where the conduct and events relevant to that conduct occurred in Dubai, rather than Australia. At best or worst (depending on the party perspective), any communications from Australia were incidental to the conduct in or with respect to the D17 transaction which occurred in Dubai - which, for the reasons previously set out, I have not found to be representations in any relevant sense. None of the "conduct", involving representations or otherwise, has been found to be within the statutory prohibitions and even if this were the case, it has not been relied upon by Sunland. For these reasons, I am of the opinion that the provisions of sub-s 6(2) of the TPA which were relied upon by Sunland have no application in the present circumstances.

TPA sub-s 6(3) - representations using telegraphic or telephonic services

390 In relation to sub-s 6(3) of the TPA, Sunland pleaded that an email sent by Joyce to Brown that contained misrepresentations was transmitted through a server located in Australia[1348] and, further, that an email sent by Reed to Brown that contained misrepresentations was transmitted through a server located in Australia[1349] and that the making of those misrepresentations was conduct that involved the use of postal, telegraphic or telephonic services within the meaning of sub-s 6(3) of the TPA.[1350] Reed and the Prudentia parties admitted that if the representations were made, they were made using telegraphic or telephonic services. Joyce, however, denied the allegation.

391 The evidence which Sunland sought to rely upon in support of the application of these provisions with respect to Joyce are set out in its closing submissions.[1351] Concluding in relation to the evidence that would have been subject to cross-examination in the usual way, Sunland submitted that because, in the course of the trial, Joyce's Senior Counsel indicated that he did not intend to cross-examine any IT witnesses produced by Sunland that Reed and the Prudentia parties indicated that this was also their position, the defendants should be taken to have conceded the point. In my opinion, in the circumstances of the trial and the party submissions, that is the appropriate inference. Sunland did, however, rely upon a number of authorities for the proposition that the transmission of web pages or emails over the internet amounts to the use of telephonic services for the purposes of sub-s 6(3) of the TPA, a position which, if established, would, in my view, indicate that sub-s 6(3) of the TPA would have the effect of applying the provisions of that Act to all defendants.

392 In Abrahams v Biggs, Jessup J said:[1352]

"The route by which the applicant sought to make the respondent liable under the Trade Practices Act involved s 6(3) thereof. His case was that, since the statements complained of were communicated over the Internet, they 'involved the use of ... telephonic services'. At the level of pleading, that allegation was denied by the respondent. However, in her case as conducted in court, the respondent said nothing on the subject: that case was conducted on the silent premise that ss 52 and 53 applied to her as an individual. Although the matter was not dealt with in the evidence, it has been recognised so often in judgments of the court that the Internet involves the use of telephonic services that I think it would be quite unrealistic, particularly in light of the way the respondent conducted her case, not to proceed by reference to that fact: see, for example, Australian Competition and Consumer Commission v Chen [2003] FCA 897; (2003) 201 ALR 40, at [32]; Macquarie Bank Ltd v Seagle [2005] FCA 1239 at [23]; Jones v Australian Competition and Consumer Commission [2010] FCA 481 at [30][1353]."

393 Focusing on the means of transmission, Greenwood J, in Mason v MWRECD Ltd, said:[1354]

"... the use of an email engages telephonic services by means of the relevant data lines and thus the email was a communication to a person involving the use of telephonic services for the purposes of s 6(3) of the Act."

394 Again, more broadly, in Australian Competition and Consumer Commission v Jutsen (No 3), Nicholas J said:[1355]

"The expression 'postal, telegraphic or telephonic services' as used in s 6(3) of the Act extends to conduct involving the use of the internet. I think this must be so having regard to the very broad way in which the word 'telegraphic' is defined in most of the well known dictionaries. For example, The Macquarie Dictionary (3rd ed, The Macquarie Library, 1997) at p 2176 defines telegraph as:

'1. an apparatus, system or process for transmitting messages or signals to a distance, especially by means of an electrical device consisting essentially of a transmitting or sending instrument and a distant receiving instrument connected by a conducting wire, or other communications channel, the making and breaking of the circuit at the sending end causing a corresponding effect, as on a sounder, at the receiving end.'

The word 'telegraphic' ought to be given a correspondingly broad meaning. It is open to the court to take judicial notice of the fact that the internet is a 'telegraphic' apparatus or system used to transmit and receive electronic communications: see s 144(1) of the Evidence Act 1995 (Cth)."

395 Various other authorities to this effect were relied upon.[1356]

396 On the basis of these authorities, it is, in my view, clear that sub-s 6(3) of the TPA does, in the present circumstances, extend the operation of the Act to the defendants.

397 Many of the provisions of the TPA which prohibit misleading or deceptive conduct require that that conduct engaged in be "in trade or commerce". In this case, the issue arises in relation to Joyce, against whom Sunland seeks to apply the TPA provisions, relying upon the application of sub-s 6(3) on the basis that "telegraphic or telephonic services" were used by Joyce in the course of engaging in the prohibited conduct.

398 Section 52 of the TPA applies only to corporations, whereas the provisions of s 6 extend the operation of various provisions of the Act, including s 52, to certain conduct of natural persons. Similarly, sub-s 6(2) applies where, for example, individuals engage in overseas or interstate trade or commerce in a manner which breaches the prohibitions of s 52. Clearly, the provisions of the TPA are drafted to enliven various heads of Commonwealth constitutional power. Provisions such as s 6 of the Act are intended to give the legislation "wider constitutional support".[1357]

399 Reference has already been made to submissions against Sunland that the critical conduct upon which Sunland relied occurred in Dubai and not in Australia.[1358] As discussed, this raised the question whether there was any relevant conduct which took place within Australia which s 52 of the TPA might apply, or whether its provisions could only apply through the operation of the provisions of the TPA which give that Act extraterritorial operation.

400 The Commonwealth Parliament has the power to pass legislation which operates extraterritorially provided it is "for the peace, order, and good government of the Commonwealth with respect to" one or more heads of power conferred by the Commonwealth Constitution. It is trite law that a statute will be presumed to apply only to the territory or nationals over which the legislature has jurisdiction, though the presumption may be displaced by a clear indication to the contrary.[1359]

401 The TPA does specifically provide for its extraterritorial operation, particularly in sub-s 5(1) as extending the reach of its provisions to companies incorporated or carrying on business in Australia, Australian citizens or persons ordinarily resident in Australia. As noted previously, Joyce was and is an Australian citizen. The effect of these provisions is that in spite of the fact the conduct of Joyce relied upon by Sunland took place outside Australia, it is the conduct of an Australian citizen within the scope of s 5(1) of the TPA and if the necessary prohibited elements were established, within the prohibition of s 52 of that Act. Consequently, there is potentially some tension between the operation of ss 5 and 6 of the TPA in relation to the extension of the reach of this legislation. The relationship between these provisions is, however, unsettled.[1360] In the present circumstances it is not necessary to attempt to resolve this position as the point was not pressed on behalf of Joyce, but left on the basis that whether or not sub-s 5(1), 6(2) or 6(3) of the TPA extends the operation of s 52 of that Act to the conduct of Joyce, Sunland must still establish the various elements of s 52 for liability to attach to him. In my opinion, this was an entirely appropriate concession as a basis on which to proceed, particularly as I am inclined to the view, without deciding, that the effect of ss 5 and 6 of the TPA is expansive, rather than limiting, in terms of the extended operation of that Act. Nevertheless, the "trade or commerce" dimension and the extraterritorial effect of s 52 of the TPA, by means of sub-s 5(1) and the modifying effect of sub-s 6(2), both require that the relevant conduct occur in "trade or commerce". In relation to sub-s 5(1), this is because the language of s 52 of that Act requires that the conduct be "in trade or commerce". Insofar as sub-s 6(2) is concerned, this limitation follows because these provisions confine the extended operation of s 52 of that Act with respect to natural persons by reference to the "trade or commerce" requirement with respect to the particular conduct. In Bright v Femcare,[1361] Lehane J explained the extraterritorial operation of s 52 of the Act as follows:

_"_Conduct, then, gives rise to a liability under, for example, s 52 if two conditions are met: first, it is engaged in within Australia (by a corporation) or outside Australia (by a body referred to in s5(1)); secondly, it is conduct in trade or commerce (including trade or commerce between Australia and a place outside Australia)."

On this basis, I turn now to consider the meaning of "trade or commerce" in the context of the issue now considered.

402 Section 4 of the TPA defines "trade or commerce" as meaning "... trade or commerce within Australia or between Australia and places outside Australia". In considering the constitutional head of power relied upon as underpinning these provisions of the TPA, the High Court in W & A McArthur Ltd v Qld said:[1362]

"... it is impossible to limit the 'trade and commerce' either 'among the States' or 'with other countries' to the mere act of transportation over the territorial frontier. The notion of a person or a thing, tangible or intangible, moving in some way from one State to another is no doubt a necessary part of the concept of 'trade commerce and intercourse among the States.' But all the commercial dealings and all the accessory methods in fact adopted by Australians to initiate, continue and effectuate the movement of persons and things from State to State are also parts of the concept, because they are essential for accomplishing the acknowledged end. Commercial transactions are multiform, and each transaction that is said to be interstate must be judged of by its substantial nature in order to ascertain whether and how far it is or is not of the character predicated."

403 It was submitted on behalf of Joyce that while his alleged conduct does bear a trading or commercial character, it does not constitute trading or commercial activity between Australia and places outside of Australia. In this respect, a number of authorities were relied upon.

404 In ACCC v Global Prepaid Communications, Gyles J said:[1363]

"The mere fact that parties to dealings are in different States or that an international party may be involved is not sufficient to establish the necessary connection. The conduct must take place in the course of interstate or international trade or commerce."

Similar comments had been made earlier by the High Court in Hospital Provident Fund Pty Ltd v State of Victoria[1364] in relation to the meaning of interstate commerce:

"... it is very clear that a person may carry on business in every State of the Commonwealth and yet never engaged in an act of interstate commerce ... The fact that directors of one company reside in different States and meet sometimes in the one and sometimes in the other can in no way affect the nature of the business carried on by that company. The facts that the company in one State makes contracts with person in other States and receives 'contributions' from persons in other States, that it makes payments from its office in one State to persons in other States, that its servants and agents travel from one State to another on the company's affairs, that documents and communications are transmitted from one State to another - these things, severally or in combination, do not mean that the business in which the company is engaged or any part of that business possesses the character of interState commerce".

In the same vein, it was held, in Swan v Downes,[1365] that a transaction that involved the making of a contract and the acceptance of payment for goods which both took place within one State but which involved parties from different States was not one of trade or commerce among the States.

405 Sunland claims that the alleged prohibited conduct in which Joyce was engaged was in trade or commence between Australia and places outside Australia within the meaning of sub-s 6(2)(a)(i) of the TPA on the basis of various matters particularised in its Second Further Amended Statement of Claim.[1366] In substance, Sunland's pleaded allegations are that the conduct relied upon was in trade or commerce between Australia and places outside Australia based on the incorporation of the second plaintiff, Sunland Group Limited, in Queensland and it being listed on the Australian Securities Exchange together with the allegation that the monies ultimately paid by the first plaintiff, Sunland Waterfront (BVI) Ltd, to Hanley were sourced from Sunland Group Limited.

406 On the basis of the authorities to which reference has been made, Joyce submitted that the Sunland claim failed to establish the application of sub-s 6(2)(a)(i) of the TPA because, more generally, the critical conduct with respect to the Plot D17 transaction concerned matters that occurred in Dubai and not Australia[1367] and, more particularly, because:[1368]

(a) the land the subject of the transaction is located in Dubai;

(b) the joint venture that was the subject of discussions between the second plaintiff and the first defendant was a joint venture to be carried out in Dubai;

(c) the vendor was and is an organ of the Emirate of Dubai;

(d) the purchaser was and is a company registered in the British Virgin Islands;

(e) the company to whom the Fee was paid was and is a company registered in Singapore; and

(f) the evidence of Sunland is that it considers there to be no 'recourse' from their Dubai operations back to Australia because the management of the Dubai operations is controlled outside Australia.[1369]

407 In my opinion, the factual matters relied upon in this context by Joyce are both correct and establish, in light of the authorities, that the conduct of Joyce upon which Sunland relies is not conduct in trade or commerce between Australia and Dubai. My opinion in this respect is also reinforced by the observation made on behalf of Joyce that if the position advanced by Sunland were correct then almost all commercial negotiations conducted outside Australia would be governed by the provisions of the TPA if one of the parties to those negotiations were an Australian citizen or corporation. Sunland has not advanced any basis upon which it could be concluded that the intent of the legislature was to give the TPA such a broad operation.

Jurisdiction under the Victorian Fair Trading Act

408 Section 6 of the FTA provides for its extraterritorial operation in the following terms:

"6. Extra-territorial application of this Act

(1) This Act applies within and outside Victoria.

(2) This Act applies outside Victoria to the full extent of the extra-territorial legislative power of the Parliament.

(3) Without limiting subsection (1) or (2), this Act applies to -

(a) the engaging in conduct in Victoria by persons outside Victoria;

(b) the engaging in conduct outside Victoria by persons in Victoria; ..."

409 In Jack Brabham Engines Limited v Beare, Jagot J found that for this legislation to apply, there needs to be some connection between the critical events in issue and the State of Victoria.[1370] Relying on two decisions of the Victorian Civil and Administrative Tribunal ("VCAT"), Sunland submitted that a liberal approach should be taken.

410 Thus, in Director of Consumer Affairs Victoria v Backloads.com Pty Ltd, Judge Harbison, sitting as a Vice-President of VCAT, said:[1371]

"215. The High Court has considered the ambit of the extraterritorial application of state law in Union Steamship Company of Australia Pty Ltd v King HC of A 1988 at p2.

216. At page 13 of the judgment the High Court applied the following passage of Dixon J in Broken Hill South v Commissioner of Taxation (NSW) 56:

'It is within the competence of the state legislature to make any fact, circumstance, occurrence or thing in or connected with the territory the occasion of the imposition upon any person concerned therein of a liability to taxation or of any other liability. It is also within the competence of the legislature to base the imposition of liability on no more than the relation of the person to the territory. The relation may consist in presence within the territory, residence, domicile, carrying on business there, or even remoter connections. If a connection exists, it is for the legislature to decide how far it should go in the exercise of its powers. As in other matters of jurisdiction or authority Courts must be exact in distinguishing between ascertaining that the circumstances over which the power extends exist and examining the mode in which the power has been exercised. No doubt there must be some relevance to the circumstances in the exercise of the power. But it is of no importance upon the question of validity that the liability imposed is, or may be, altogether disproportionate to the territorial connection or that it includes many cases which cannot have been foreseen.'

'It is sufficient for present purposes to express our agreement with the comments of Gibbs J in Pearce (1976) 135 CLR at p 518 where His Honour stated that the requirement for a relevant connexion between the circumstances on which the legislation operates and the state should be liberally applied and that even a remote and general connexion between the subject matter of the legislation and the state will suffice.'

220. Accordingly it is my view that by reason of the application of the Union Steamship principles, part 2B of the Fair Trading Act applies to all of the consumer contracts that the respondent enters into, even though some of those contracts may also be governed by the law of another state, because the registration of the respondents business in Victoria, and the physical location of the business in Victoria provide a relevant connexion between the circumstances on which Part 2B operates and the State of Victoria."[1372]

411 Similarly, Morris J, sitting as President of VCAT, said:[1373]

"43. The FTA is a law enacted by the Parliament of Victoria. Section 6 of the FTA provides that the Act applies 'within and outside Victoria'; and that it applies outside Victoria 'to the full extent of the extra-territorial legislative power of the Parliament'. This may mean that the FTA only operates in relation to subject-matter that has a relevant connection with Victoria, although the extent of the connection is to be considered liberally. Thus it is unlikely that the (Victorian) FTA would have application to the supply of goods or services where this is exclusively a Queensland transaction: that is, both the supplier and the purchaser of the goods or services are resident in Queensland and where the supply occurs in Queensland. However where the supply, or possible supply, of goods or services occurs, or is proposed to occur, in Victoria, the (Victorian) FTA applies to any dispute or claim arising in relation to such a supply or possible supply. The Victorian Parliament may pass a law regulating the supply of goods to Victorian purchasers - at least where the goods are supplied in Victoria - whether the supplier is resident in Victoria or not.

44. The jurisdiction of VCAT to hear an action for damages under section 159 of the FTA, or to hear and determine a consumer and trader dispute, does not depend upon the existence of a contract. The word 'contract' does not appear in section 159; nor does it appear in section 107 of the FTA. Rather it turns on whether there has been a contravention of the FTA or a supply of goods or services in Victoria. Hence VCAT's jurisdiction cannot depend upon the place in which a contract is made, or a provision in a contract that the contract is formed in a particular location, or that a named jurisdiction is to be the exclusive jurisdiction for determining disputes under the contract."

412 On the basis of these decisions, Sunland submitted:[1374]

"258. Prudentia is registered in Victoria, and Hanley is a wholly owned subsidiary of it. Mr Reed lives in Victoria. Reed, Prudentia and Hanley engaged, or used, or had acting on their behalf in the transaction, a Victorian solicitor, namely Mr Sinn of Freehills. Reed made his initial misrepresentations to Brown by telephoning Brown from Melbourne, and Reed subsequently emailed Brown from Victoria, and through a computer server located at Prudentia's offices in Melbourne. The Prudentia parties have no connection with any other Australian State apart from Victoria. Indeed their connection is emphasised by the fact that when they sought to have the matter cross-vested from the Federal Court of Australia to another Australian superior court, the first and only court that they approached was the Supreme Court of Victoria.

259. Joyce's conduct was in concert with that of the Prudentia parties, and it may safely be inferred that in order for Joyce and Reed to plan their deception of the plaintiffs, Joyce communicated with Reed by emailing Reed in Victoria, and by speaking to Reed when Reed was in Victoria.

260. In the light of the above authorities, there is clearly sufficient connection between the events pleaded and the State of Victoria, to engage section 6 of the FTA."

413 Although the provisions of the FTA do not mirror those of the TPA in terms of extraterritorial operation, the discussion and my findings in relation to the latter legislation significantly informs the position with respect to the application of the FTA. In my opinion, any relevant conduct which might be relied upon by Sunland for the purposes of the prohibitions provided for under the FTA is, as indicated previously, primarily, if not exclusively, conduct which took place in Dubai; in relation to land in Dubai.[1375] There are, however, some connections with Victoria. If the evidence established that Hanley had engaged or used a Victorian firm of solicitors, then it may be that this would have provided a sufficient connection with Victoria for the purposes of the FTA, though not under the provisions of the TPA. However, as discussed previously, there is no evidence of the retainer of the Victorian legal firm, Freehills, by Hanley and so the issue does not arise under the FTA.[1376] In relation to telephone conversations and transmission of communications through computer servers located from and in Victoria, I am of the opinion that absent a provision such as sub-s 6(3) of the TPA, it should not be assumed that this, on its own, necessarily provides a sufficient connection with Victoria to enliven the application of the FTA. In my view, the contrary follows from the decision of Morris J in Law v MCI Technologies Pty Ltd.[1377] Indeed, to construe the requirement of a connection so liberally would be to give the State legislation a significantly broad extraterritorial operation because almost any email or internet communication with or involving Victoria would enliven the jurisdiction.[1378] In my view, the Victorian legislature could not have intended such a potentially world-wide operation for the FTA; or the uncertainties which would flow from the need to consider some incidental connection with Victoria as a result of the use of internet servers or other telecommunications equipment in Victoria.

414 Even if it were found that Sunland was correct in its submissions as to the extent of the extraterritorial operation of the FTA, that would not have the effect of giving any broader application to the prohibitions contained in that legislation with respect to the conduct of the defendants as alleged by Sunland. In other words, it remains the position that Sunland must establish conduct in breach of the provisions of the FTA. For the reasons already set out, it is clear, in my view, that it has failed to establish this position under the corresponding or analogous provisions of the TPA and, consequently, the same result follows with respect to the prohibitions of the FTA. Consequently, any argument that a relevant connection to Victoria for the purposes of the application of the FTA would arise on the basis of Joyce's alleged conduct in concert with that of the Prudentia parties does not arise.[1379] As discussed elsewhere, neither does this issue arise in more general terms because of the findings made with respect to the conduct of the parties which Sunland alleges is relevant in terms of the statutory prohibitions and tortious liability.[1380]

415 The proper law applicable to a claim in tort is an issue distinct from the question of jurisdiction. There can be no doubt that the Court has jurisdiction over the defendants because each has been properly served and the proceeding now lies in a State superior court which has the subject matter jurisdiction to decide the substantive rights and duties of the parties in the litigation.[1381]

416 Sunland submitted that in relation to the tort of deceit, the established position in Australia is that the lex loci delicti applies whether the tort is an intra-Australian tort or an intentional tort.[1382] As indicated in its submissions, this begs the question; what is the place of the tort? It was submitted by the parties that in Renault v Zhang,[1383] the High Court applied the same choice of law rule to international torts as it had earlier adopted in John Pfeiffer Pty Ltd v Rogerson[1384] for intra-Australian torts; namely, that questions of substance must be decided according to the law of the place where the tort occurred.[1385] The High Court examined some important policy reasons for that rule, which were explained in John Pfeiffer:[1386]

"The chief theoretical consideration in favour of applying the law of the place of commission of the tort to decide the substantive rights of the parties (at least in intra-national torts) is that reliance on the legal order in force in the law area in which people act or are exposed to risk of injury gives rise to expectations that should be protected."

The cases indicate that Australian choice of law rules are to be applied in determining where the tort occurred;[1387] rules which require the Court to look to the substance of the action, not to where the last act in the chain occurred or where the damage occurred.[1388]

417 Sunland referred to a variety of authorities in support of the argument that there were very strong Australian connections and that the tort, the fraud, was perpetrated by Australians on Australians through communications prepared in Australia and sent from Australia and received (if Sunland's server is the place of receipt) in Australia. Sunland asks, rhetorically, "Why shouldn't Australia be regarded as the place 'where in substance, the deceit took place' within the meaning of the passage relied upon from the judgment of the majority of the High Court in Voth v Manildra Flour Mills Pty Ltd."[1389] Reed and the Prudentia parties, on the other hand, submitted that the authorities indicate that electronic communications when received in an intended jurisdiction, Dubai in the case of various communications relied upon by Sunland, are taken to be conduct in that jurisdiction (at least as a matter of Australian law).[1390]

418 In any event, the conclusion to the debate between the parties on this issue is summarised in the Sunland submissions, as follows:[1391]

"The defendants appear to take the position that the lex locus delicti is UAE law. If they are correct, then the starting point is the presumption that the UAE law on the point is the same as Australian law,[1392] or as Nygh puts it 'a default rule; namely that the substantive law of the forum will be applied absent the proof, or the satisfactory proof, of the foreign law indicated by the statutory or common law choice of law rule'.[1393] In any event, it is for the defendants to have pleaded and proven that UAE law differs from Australian law; if they do not, then this Court assumes that UAE law and Australian law are the same."

419 On this basis and on the assumption that Australian and UAE law in relation to the tort of deceit are in substance the same, I turn to consider the elements of the tort, set out in the judgment of the High Court in Magill v Magill, as follows:[1394]

"[37] The elements of the tort of deceit were stated by Viscount Maugham, in Bradford Third Equitable Benefit Building Society v Borders,[1395] as follows (omitting his Lordship's citation of authority):

'First, there must be a representation of fact made by words, or, it may be, by conduct. The phrase will include a case where the defendant has manifestly approved and adopted a representation made by some third person. On the other hand, mere silence, however morally wrong, will not support an action of deceit. Secondly, the representation must be made with a knowledge that it is false. It must be wilfully false, or at least made in the absence of any genuine belief that it is true. Thirdly, it must be made with the intention that it should be acted upon by the plaintiff, or by a class of persons which will include the plaintiff, in the manner which resulted in damage to him. If, however, fraud be established, it is immaterial that there was no intention to cheat or injure the person to whom the false statement was made. Fourthly, it must be proved that the plaintiff has acted upon the false statement and has sustained damage by so doing.'

[38] His Lordship's reference to 'mere silence' contemplates, by way of contrast, the possibility of a case where there is a legal or equitable duty to speak and disclose the true facts."

420 Although, for the reasons indicated, it is appropriate to proceed on the basis that the elements of the tort of deceit in both jurisdictions, Dubai and Australia, are relevantly the same, it is helpful to set out a passage from the Closing Submissions of the Fourth Defendant which conveniently (and, in my view, accurately) summarise the basis upon which the content of foreign law would be accepted by an Australian court and also the elements of the tort of deceit under the UAE Civil Code:[1396]

"In an Australian court, the content of foreign law is a matter for evidence.[1397] If there is any gap in that evidence, the court will assume that the foreign law is identical to the law of the forum, being Australia.[1398] The expert evidence in this proceeding establishes that:

(a) Part 1 (Contracts) of the UAE Civil Code (UAE Code) does not apply to Joyce because Joyce is not, as is required by the UAE Code, a 'contracting party'.[1399]

(b) Part 3 (Acts Causing Harm) of the UAE Code contains Article 285, which states that:

'If a person deceives another he shall be liable to make good the harm resulting from that deception'[1400]

(c) Deception under Article 285 of the UAE Code requires a deliberate falsehood. James Whelan's commentary on the UAE Code states: [1401]

'... there is no ghurur save where it is exercised in respect of the subject matter, and is used as a means of inducement by the deceiver by false and lying means designed to make facts appear otherwise than they are, practised deliberately by the deceiver, and in bad faith' [emphasis added]

(d) Damages under Part 3 of the UAE Code are compensatory in nature.[1402]

(e) Whelan's commentary on Article 282 of the UAE Code states that liability to make compensation arises out of any harm done, and the harm can pertain to an act or a failure to act, and it must have arisen out of the damage, and there must therefore be both the act (either positive or negative) and the harm, and the causal relationship between them.[1403]

(f) Article 290 of the UAE Code states that it is permissible for the judge to reduce the level of damages or not to order damages at all if the person suffering the harm participated by his own act in bringing about or aggravating the harm.[1404]

(g) Article 291 of the UAE Code states that if a number of persons are responsible for a harmful act then each of them shall be responsible in proportion to his share in it and the judge may make an order against them in equal shares or by way of joint or several liability as between them.[1405]

(h) Article 292 of the UAE Code states that the losses that are considered to be a natural result of the harmful act are those for which it was not possible for the aggrieved party to avoid by exerting reasonable efforts.[1406] Ms Hamade's evidence is that if a party has reduced its loss by mitigating actions then this is to be taken into account by the judge.[1407] Mitigation is required by virtue of the fact that the only losses that are recoverable are those which the obligee could not have averted.[1408]"

421 On the basis of these submissions, it was further submitted that the requirement under Article 285 of the UAE Code to prove deliberate falsehood, inducement and bad faith are relevantly the same as the elements (two and three) of the tort of deceit as stated in Magill. Similarly, it was said, Sunland must prove that any loss and damage suffered was caused by the conduct of the defendants.

422 In relation to the standard of proof, reference was made to sub-s 140(1) of the Victorian Evidence Act 2008 which prescribes the standard of proof in civil proceedings; namely, that the Court must be satisfied that the plaintiffs have proved their case on the balance of probabilities. Sub-section 140(2) prescribes certain non-exhaustive matters the Court may take into account in deciding if it is satisfied. This includes the "gravity of the matters alleged".[1409]

423 In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd, the majority of the High Court said:[1410]

"The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary 'where so serious a matter as fraud is to be found'. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. As Dixon J commented in Briginshaw v Briginshaw:

'The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved ...'

This statement of the High Court concerned the position at common law. Since that case, the Full Court of the Federal Court decided that his is also the correct approach with respect to the standard of proof under s 140 of the Evidence Act 1995, (Cth) (which is in the same terms as the Victorian Evidence Act provisions).[1411]

424 For the reasons indicated previously in the detailed discussion of the D17 transaction, conduct and related events, there is no evidence against the defendants in support of any of the elements of the tort of deceit as set out in Magill. Crucially, this is because there was no representation made of the kind relied upon by Sunland.[1412] Moreover, to the extent that any such representation was made, it was not relied upon by Sunland and, in any event, the evidence would not support a finding that it was false. This position is reinforced when regard is had to the higher standard of proof required and the more onerous elements constituting the tort of deceit, by comparison with the elements necessary to establish the application of the statutory provisions upon which Sunland relied. Additionally, the elements of the tort of deceit require Sunland to establish not only that the representations relied upon were made but, further, that the person or persons making them knew them to be false.[1413] In the absence of a finding that any relevant representations were made, it is unsurprising that there is no such evidence of knowledge. Neither would Sunland's allegations of "joint purpose" assist its case in this respect. Even assuming that, absent a finding in Sunland's favour of any representations or conduct in breach of the statutory provisions or something in the nature of a fraudulent representation, evidence could be led against the defendants, or some of them, of some "joint purpose" adverse to Sunland's interests, this could not amount to evidence of fraudulent intent or knowledge in the absence of such a finding. This follows because the base element for the statutory breach(es) or deceit is not established.

425 Sunland alleges that it suffered the following loss and damage:[1414]

(a) payment by Sunland to Hanley (by Sunland Group Limited on behalf of Sunland Waterfront (BVI) Ltd) of the fee of AED 44,105,780; and

(b) loss of reputation by Sunland in Dubai for having been party to a transaction characterised by the Dubai authorities as illegal.

426 Sunland seeks to recover these alleged losses as compensatory damages pursuant to s 82 of the TPA and as damages for the tort of deceit. As indicated previously, the nature of damages awarded pursuant to s 82 of the TPA is usually assessed by reference to the detriment suffered as a consequence of reliance upon the contravening conduct, rather than the amount required to make good the expectation created by that conduct.[1415] Consequently, although both the statutory and tortious causes of actions are pleaded, they would, if established in terms of liability, lead to an award of damages on the same basis. For the reasons already set out, I am of the opinion that Sunland has failed to establish any basis of liability against any of the defendants in either the pleaded statutory causes of action or the claim in tort for deceit. Consequently, issues of loss or damage do not arise, but it may, nevertheless, be helpful if I express my views in this respect in case this proceeding is taken further.

427 The contradictory evidence given by Brown and Abedian makes it difficult to discern or understand the basis upon which Sunland puts its case in relation to loss and damage. As submitted against Sunland, does it allege that, if not for the Representations and the Hanley Representations, it would have:

(a) Withdrawn from all negotiations to acquire Plot D17 with the result that Sunland would not have become the owner of that plot ("the No Transaction Case");

(b) Successfully negotiated with DWF to purchase Plot D17 in its own right, such that Sunland would have become the owner of D17 without paying the Fee to Hanley ("the Transaction Case"); or

(c) Negotiated some form of joint venture with Prudentia but on different terms to the final Implementation Agreement ("the Joint Venture Case**"**)?

428 Sunland alleges that, had the Representations and the Hanley Representations not been made, Sunland would not have entered into the Hanley Agreement or the Prudentia Agreement and would not have paid the fee.[1416] As a matter of pleading, it was submitted on behalf of Joyce that only the Transaction Case is open to Sunland on its pleadings, because the No Transaction Case and the Joint Venture Case are not pleaded. In my view, this is correct as a matter of pleading, but for the reasons which follow, it makes little difference in the ultimate result because Sunland fails to establish loss and damage however its case is made.

429 The confused, inconsistent and contradictory evidence of Brown and Abedian is particularly clear when one comes to examine Sunland's allegation that, but for the alleged representations, it would not have entered into the Agreements and would not have paid the fee.

430 Turning first to Brown's, clearly contradictory, evidence:

(a) In paragraph 282 of his first witness statement,[1417] Brown said:

"If I had been told (or believed) that the basis for Reed's 'control' of Plot D17 (or the status of Reed / Prudentia as 'a preferred negotiator') was Joyce had resolved that he would personally attempt to ensure that Plot D17 was sold to Reed, then Sunland would not got involved in the sale. Also, given the earlier encounter with Joyce on Plot A10C, I would not want to upset him again as Sunland (and I) saw him as someone who held substantial power at Dubai Waterfront. Therefore, Sunland would have just backed out and let Reed buy the site."

(b) However, in paragraph 275 of his first witness statement,[1418] Brown said that Sunland would have negotiated directly with DWF to acquire Plot D17:

"If I had been told (or believed) that Prudentia (or its subsidiaries) did not have control and rights over Plot D17, I would not have negotiated with Reed (and SWB would not have entered into the agreements with Prudentia and Hanley) but would have negotiated directly with Dubai Waterfront."

(c) Then, in paragraph 5 of his second witness statement,[1419] Brown gave the following evidence:

"Had Reed said to me that he would not talk to me unless I promised not to attempt to buy D17 directly from Dubai Waterfront, I would not have agreed to that. Had Reed said that to me, it would have flagged to me that Prudentia were just looking for sites as Sunland was, and had no legal rights over D17. In that case, I would not have given up Sunland's ability to purchase D17 directly from Dubai Waterfront. In that case, I would still have been willing to talk to Reed about a JV on a non-exclusive basis, because you never really know what a prospective JV partner may be able to bring to the table."

(d) In paragraph 26 of his second witness statement,[1420] Brown gave the following further evidence:

"If I had known at the time that Prudentia did not in fact control the land but was merely a prospective purchaser who also had the ability to arrange funding for the project, then we would have explored a different JV model with them. The negotiations would have been very different, as Sunland would have been able to pursue the purchase of the land itself, on the basis that if it was unable to negotiate a JV with Prudentia providing the finance, it could have looked for an alternative JV partner. Because I thought that Prudentia had control of the land, the attraction for Sunland of negotiating a joint venture with Prudentia, rather than simply offering to pay Prudentia a premium in order to be able to buy D17 for itself, was that it seemed that Prudentia was able to fund the land instalment payments."

431 In this respect, Abedian gave the following evidence:

(a) In paragraph 116 of his first witness statement,[1421] Abedian said that the plaintiffs would have negotiated to purchase Plot D17 directly from DWF and would have sought out other joint venturers at the same time:

"If I had been told that information by any representative of the Dubai Waterfront management at the time, I would never have caused Sunland to enter into any agreement with Prudentia, Hanley or Reed. There is no reason why Sunland would pay any premium or consultancy fee to a party that had no control over that plot. Instead I would have caused Sunland, through Brown and me, to negotiate directly with Dubai Waterfront for the purchase of Plot D17. At the same time or following the purchase of the land from Dubai Waterfront, I would have caused Sunland to enter into JV negotiations with appropriate parties so as to find an appropriate JV partner to participate in the funding of the project."

(b) In paragraph 117 of his first witness statement,[1422] Abedian stated that the plaintiffs would have abandoned all negotiations regarding Plot D17 and would have instead attempted to purchase Plot A10C or any other plot that was then available:

"If I had been told (which I was not) that the position was that Reed and Prudentia's 'control' of Plot D17 was not due to Prudentia having any legal right over the plot but rather was because Joyce had made a personal decision that he wanted Dubai Waterfront to sell Plot D17 to Reed, then I would have resolved that Sunland should abandon its negotiations in relation to Plot D17 and should instead attempt to negotiate a purchase of Plot A10C or any other plot that might have been available."

(c) In paragraphs 9 and 10 of his second witness statement,[1423] Abedian said that if he had been told at the outset that Sunland could acquire Plot D17 directly from DWF, then he would have negotiated for a SPA to purchase Plot D17 directly and would have sought out alternative joint venture partners. However, in paragraph 11 of that statement, he said that Sunland's preferred approach to its projects was to establish a joint venture in which the other joint venture party brought the land to the joint venture and Sunland was responsible for project design, obtaining development approval, sales and marketing and seeking and obtaining finance for construction costs.

432 Compensatory damages under the TPA are, as in tort in the present circumstances, measured as equivalent to the amount of money that would put a party in Sunland's position back into the position it would have been in but for the misleading or deceptive conduct and the like under the statutory provisions or the fraudulent misrepresentations in the context of the tort of deceit. This requires a comparison of the actual position of the party with a hypothetical position. Consequently, whichever case is advanced by Sunland, it must establish what its actual position is as a result of entering into the transaction in respect of Plot D17.

433 If Sunland's case were put on this basis, it would need to establish that it would have withdrawn from negotiations to acquire Plot D17 had it known the true position. The result would have been that it would not have become the owner of that piece of land. This does, however, appear to be a most unlikely position having regard to the enthusiasm of Brown and Abedian for that land and the close proximity of Plot D17 to Plot D5B, the high profitable feasibility studies prepared by Brown and the likelihood of Sunland being able to sell part of the project to a joint venturer such as Likeitalot Investments Pty Ltd (ACN 122 604 326) at a very significant profit.[1424] Moreover, even if one assumes that this is a likely outcome, it is unclear whether Sunland could have undertaken The Atrium project[1425] with Plot D5B alone. Sunland led no evidence as to what other project they would have done on Plot D5B.

434 A further difficulty is that on the evidence adduced by Sunland, it is not possible to determine its actual net financial position as a result of its having acquired Plot D17. For example, if Sunland made a profit as a result of purchasing Plot D17, it follows that it is not suffering any loss as a result of entering into the D17 transaction. Thus, it was submitted against Sunland that its merely seeking a return of the Fee is a simplistic approach to its loss and damage claim, and one not supported by authority.

435 In La Trobe Capital & Mortgage Corporation Ltd v Hay Property Consultants Pty Ltd,[1426] Finkelstein J (with whom Jacobson and Besanko JJ agreed) said that the proper approach where a plaintiff is alleged to have received a benefit as a result of the wrongdoer's act is to consider the following questions:

(a) Should the benefit be taken into account at all in assessing damages?

(b) If yes, how should the benefit be taken into account?

It follows that one must keep in mind that the goal or purpose of the assessment of damages is to compensate, which means that both losses and benefits accruing to Sunland as a result of purchasing Plot D17 should be taken into account in assessing damages.[1427] Consequently, it is artificial to ignore a benefit simply because it is of a different character to the loss pleaded by a plaintiff if the broad aim of an award of damages is to restore that plaintiff to its position but for the wrongdoer's breach.[1428]

436 A similar position is adopted under the law of Dubai. Damages under Part 3 of the UAE Code are compensatory[1429] and Article 292 of that Code provides that losses that that are considered to be a natural result of the harmful act are those for which it was not possible for the aggrieved party to avoid by exerting reasonable efforts.[1430] The expert evidence of Ms Hamade on Dubai law was that if a party reduced its loss by taking actions in mitigation, then this is a matter to be taken into account by the judge.[1431]

437 In this context, the Sunland evidence is as follows:

(a) After SWB acquired Plot D17, it entered into a joint venture with another party known as "EWM".[1432] Brown could not recall the amount of the premium payable to Sunland by EWM under this joint venture and a call was made for documents to establish the quantum of that premium.[1433] Sunland produced a Shareholders' Agreement[1434] for SWB between Sunland Development Dubai (BVI) Limited and Likeitalot Investments Pty Ltd ACN 122 604 326, pursuant to which:

(i) In consideration for a 40% interest in the joint venture company (which was to develop Plot D17), the 'Scott Entity' would pay to Sunland an amount of AED 225,000,000 (clause 4.2(d)). At October 2008, this was approximately $90 million AUD (i.e. more than the purchase price of D17 to Sunland).

(ii) In addition to this fee, Sunland would receive AED 140,000,000 for "project supervision services and construction management services" (clause 7.1(a)) and another AED 20,000,000 for "specialist design services" (clause 7.2(a)). At October 2008, the total of these additional fees was approximately $64 million AUD.

(b) On 27 March 2009, Sunland issued a release to the ASX advising that EWM had defaulted on the joint venture terms but that Sunland had retained AUD $14 million already paid to SDG by EWM.[1435]

(c) The plaintiffs' evidence showed that it is usual for them to fund development in Dubai through pre-sales.[1436] However, the plaintiffs failed to lead evidence as to the value of pre-sales obtained by them in respect of The Atrium project on Plot D17.

(d) Sunland is currently exiting its Dubai investments.[1437] It is not clear from the plaintiffs' evidence what benefits the plaintiffs have obtained from their joint venture partners, by virtue of SWB's ownership of Plot D17, in exiting those investments.

(e) The plaintiffs allege that the additional BUA received on Plot D17 was compensation for the Fee paid to Hanley and wording to that effect appears in the letter authored by Brown regarding the extra BUA.[1438] If that is the plaintiffs' argument then it follows that they would not have received that BUA if they had not paid the Fee to Hanley. Accordingly, the value of this additional BUA would be considered a benefit received by the plaintiffs as a result of the alleged wrongdoing and would need to be taken into account in assessing damages.

438 It was submitted against Sunland that it had not adduced evidence to enable the Court to determine its net financial position with respect to Plot D17. It may be, it was said, that Sunland has made a net return in respect of Plot D17, in which case it has suffered no compensable loss. It is, however, a matter for Sunland to establish; something which it did not seriously attempt to do. It follows that it is not possible for the Court to compare that current net position with what would have been the position under any of the hypothetical alternatives advanced by Sunland, a difficulty which is compounded by the lack of evidence as to what Sunland's alternative position would have been under the hypothetical alternatives.

439 If this were the case pursued, it would be on the basis that Sunland successfully negotiated with DWF to purchase Plot D17 in its own right without paying the fee to Hanley. Nevertheless, to the extent that any finding could be made based on the evidence adduced by Sunland, that evidence, in my view, suggests that, given its apparently superior negotiating position, Prudentia would have entered into a SPA with DWF and then on-sold the plot to Sunland for a premium in the usual way. There was no dispute between the parties that it was a matter for DWF to determine to whom Plot D17 would be sold.[1439] In my view, Sunland's evidence fails to establish that DWF would have sold Plot D17 to Sunland and not to Prudentia.

440 Further, in this hypothetical situation, it is unknown what price Sunland would have paid for Plot D17. Brown's evidence was that Sunland could not have obtained Plot D17 for the 120 sq/ft by dealing directly with DWF and bypassing Prudentia because "all indications were it would be sold to somebody at a higher price."[1440] Consequently, if Sunland would have had to pay a higher price to purchase Plot D17 because of competition for the plot, assuming Prudentia walked away, this would mean that the hypothetical alternative position may be no better than the actual position. In any event, Sunland led no evidence that would allow the Court to determine this point.

441 In this hypothetical situation, Sunland would have negotiated some form of joint venture with the Prudentia parties, but on different terms to the final Implementation Agreement or MOU. This possibility was contemplated in paragraphs 5 and 6 of Brown's Second Witness Statement,[1441] a position broadly consistent with paragraph 11 of Abedian's Second Witness Statement.[1442] Sunland did not, however, adduce any evidence to enable the Court to determine what the terms of this other joint venture agreement would have been and, consequently, determination of loss and damage on this basis is not possible.

442 Sunland led no evidence in support of its claim for loss and damage on this basis. In fact, the evidence as it stands, indicates that it has successfully persuaded the Dubai authorities that it is a "victim" of a fraud perpetrated against it and further, this is the message which it has apparently been disseminating to the world through the ASX releases to which reference has already been made.[1443] In any event, as submitted against Sunland, any loss or damage to its reputation would not crystallise unless or until there was a ruling in the Dubai courts in relation to the legality or otherwise of the D17 transaction, and a finding in relation to Sunland's involvement in that transaction.

443 As Sunland has not led evidence that enables the Court to determine whether, in fact, it did suffer any loss and damage and, if so, how it should be assessed, it might be expected that its case would also fail in this respect. Sunland did, however, make submissions in support of the position that a court should nevertheless make a general award of damages in circumstances where no evidence has been led that can enable the court to quantify a specific amount for such damages. By way of example in support of this submission, reference was made to the judgment of Foster J in FAI General Insurance Co Ltd v RAIA Insurance Brokers Pty Ltd where his Honour said:[1444]

"Doing the best I can on what is extremely exiguous material I think it appropriate that I award damages in the sum of $15,000. In arriving at this award I have accepted that it is open to award damages for vindication of commercial reputation under s 82: see Brabazon v Western Mail Ltd (1985) ATPR 49-549 at 46,453; Flamingo Park Pty Ltd v Dolly Dolly Creation Pty Ltd (1986) 65 ALR 500 at 525; Typing Centre of NSW Pty Ltd v Northern Business College Ltd (1989) ATPR 40-943 at 50,290."

It was also submitted that two judgments of Merkel J are also relevant: Acohs Pty Ltd v RA Bashford Consulting Pty Ltd[1445] and Nixon v Slater & Gordon,[1446] where two surgeons were held to be entitled to payments of $200,000 and $100,000, respectively, both for defamation and by way of damages under s 82 TPA for misrepresentations published about them. These cases do not, however, advance Sunland's position for two reasons. First, the possible No Transaction Case, the Transaction Case and the Joint Venture Case raise matters necessary for consideration for the purpose of quantifying any award of loss and damage which cannot fairly be addressed by some arbitrary award of a global sum by way of general damages which is not calculated by reference to any relevant facts and circumstances. Secondly, in relation to loss of reputation, there is no evidence upon which any reasonable assessment could be based, even assuming that there is any loss of reputation which, for the reasons indicated previously, I discount entirely on the basis of the evidence before the Court. For these reasons, Sunland's case does, nevertheless, fail in this respect.

444 Finally, I should stress that the loss and damages issues discussed only follow for consideration if Sunland established its case in terms of liability, a position which has not been reached. For all these reasons, it is not necessary to consider apportionment issues with respect to Sunland's damages claim.[1447]

445 As discussed in considerable detail in the preceding pages the Sunland case is one founded, on the one hand, on alleged prohibited conduct under various statutory provisions contained in the TPA and the FTA. In broad terms, the statue-based case relies on allegations of misleading or deceptive conduct on the part of the defendants. The other aspect of the case, the case in tort, relies on establishing the elements of the tort of deceit. In neither case do communications between defendants, or the defendants and non-parties, to which Sunland was not privy at any relevant time - so which could not affect the impact of any alleged conduct, including representations, on Sunland or influence in any way its reliance or otherwise on such conduct - have any relevance to its case, on either basis. The same applies to flows of money or any other conduct which was not within Sunland's knowledge at the relevant time.

446 Sunland's attempt to rely on these matters in support of its case is merely another exercise on its part in the post hoc, ergo propter hoc fallacy.[1448] There can be no "joint purpose" or "joint tortfeasors" without first establishing the "purpose" or the "tort". For the preceding reasons Sunland has failed to establish any base upon which any of the internal communications, subsequent dealings or flows of money could possibly become relevant; either for the purpose of its statute-based case or its case in deceit.

447 For these reasons, Sunland's case fails in all respects and will be dismissed.

448 Additionally, I will forward a copy of these reasons (and make any papers available) to the Australian Securities and Investments Commission with a request that the Commission consider the corporate governance issues for Sunland (including its ASX announcements) which are raised by these proceedings and take such further action as considered appropriate.

449 Nothing in these reasons affects the continuing operation of the orders I made in this proceeding on 27 January 2012, which were consequent on my reasons for judgment published on 25 January 2012.[1449]

450 I will hear the parties in relation to the question of costs and final orders.

[1] Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No 1) [2012] VSC 1.

[3] Second Further Amended Statement of Claim, paragraph 26.

[4] Court Book, SUN.001.001.0280; cf Transcript, p 190.39 - .40.

[5] Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No 2) [2010] FCA 312, at [39].

[6] See Plaintiffs' Address (1 February 2012), paragraphs 7, 8 and 12; and see paragraph 14 as to the statements of witnesses which were tendered by Sunland but not challenged by cross-examination.

[7] Plaintiffs Reply to the Supplementary Written Submissions of the Defendants, Annexure A - Sunland submitted that the documents highlighted in green were false documents; also see Exh A.

[8] See Plaintiffs' Address (1 February 2012), paragraphs 6 to 8.

[9] Plaintiffs Reply to the Supplementary Written Submissions of the Defendants, paragraph 6.

[10] See above, paragraph 4.

[11] Second Further Amended Statement of Claim, paragraph 13.

[12] Second Further Amended Statement of Claim, paragraph 15.1.

[13] Second Further Amended Statement of Claim, paragraph 15.2.

[14] Second Further Amended Statement of Claim, paragraph 15.3.

[15] Second Further Amended Statement of Claim, paragraph 15.4.

[16] Second Further Amended Statement of Claim, paragraphs 16.1 to 16.2.

[17] Second Further Amended Statement of Claim, paragraph 16.3.

[18] Second Further Amended Statement of Claim, paragraph 29.

[19] See below, paragraphs 371 and 372.

[20] See below, paragraphs 369 and 370; and paragraphs 408 to 414.

[21] See below, paragraphs 18.

[22] See below, paragraphs 373 to 407.

1. [23] Second Further Amended Statement of Claim, paragraph 9. It was submitted on behalf of Joyce that it is unclear why this allegation is pleaded, as the statement was true and Sunland has never sought to prove to the contrary. In fact, Brown gave evidence that the statement was correct. (See Transcript, p 249.45- 249.46). Plot D17 is not beachfront land.

[24] Second Further Amended Statement of Claim, paragraph12.

[25] Second Further Amended Statement of Claim, paragraph 12.1.

[26] Second Further Amended Statement of Claim, paragraph 12.2..

[27] Second Further Amended Statement of Claim, paragraph 12.3.

[28] Second Further Amended Statement of Claim, paragraph 12.4.

[29] Second Further Amended Statement of Claim, paragraph 14.2.2.

[30] Second Further Amended Statement of Claim, paragraph 18.

[31] See above, paragraph 12.

[32] Second Further Amended Statement of Claim, paragraph 19.

[33] Second Further Amended Statement of Claim, paragraph 19.1.

[34] Second Further Amended Statement of Claim, paragraph 19.2.

[35] Second Further Amended Statement of Claim, paragraph 19.3.

[36] Second Further Amended Statement of Claim, paragraph 21.

[37] Second Further Amended Statement of Claim, paragraphs 21.1, 21.2 and 21.3.

[38] Second Further Amended Statement of Claim, paragraph 21.4 and 21.6.

[39] Second Further Amended Statement of Claim, paragraph, 21.5.

[40] Second Further Amended Statement of Claim, paragraph 21.4.

[41] Second Further Amended Statement of Claim, paragraph 19.2.

[42] And the same follows from the pleading of the representations in paragraph 19 of the Second Further Amended Statement of Claim.

[43] Closing submissions of Sunland Plaintiffs' Address (1 February 2012), paragraph 40. In any event this follows from the pleading of falsity in the particulars to the Second Further Amended Statement of Claim, paragraph 21. Those particulars allege in substance that the representations were false because Reed did not "own" Plot D17 or have any "right" over Plot D17. See also Joyce's Defence to the Further Amended Statement of Claim (8 April 2010), paragraph 21, and see, below, paragraphs 232 to 246.

[44] Sunland's oral closing submissions: Transcript, p 925.20 -.27. The point was made by Sunland in its Plaintiffs Reply to the Supplementary Written Submissions of the Defendants, paragraph 11 that the passage quoted from the Sunland oral closing submissions omitted some prefatory words which changed the sense of the quoted material. In order to make the position clear, I now set out the two paragraphs from the transcript of these closing submissions which put the quoted material set out above in its context (Transcript, p 925.12 - .27):

"Paragraphs 12 to 19 are the paragraphs which plead the representations. Our learned friends have made a submission - that is Mr Collinson has pleaded it would be necessary for Your Honour to find that there was a formally binding contract entitling Reed or Prudentia to the plot or that that was the subject matter of the representation.

We submit it's not necessary for Your Honour to go that far. But in any event as Your Honour will see the written representations relied upon do go that far and so we can put our case on the basis that the representation did involve a representation to the effect that there existed as pleaded a contractual right to acquire Plot D17 as alleged in Sub-paragraph A of the pleading - as summarised in Sub-paragraph A of our Paragraph 39, Your Honour." [emphasis with respect to the transcript material not set out in the above quote, at paragraph 23]."

[45] Reply Submissions of the Fourth Defendant (Joyce) (21 February 2012), paragraph 2.

[46] Reply Submissions of the Fourth Defendant (Joyce) (21 February 2012), paragraphs 3 to 8.

[48] Witness Statement of David Scott Brown (6 August 2010), paragraph 142.

[49] Witness Statement of David Scott Brown (6 August 2010): DB1[81] ("Reed had a 'hold' on the land"); DB1[84] ("Indicated that there was some sort of contract in existence"); DB1[92] ("He said to me words to the effect of either 'we have the rights over that land' or that 'Prudentia controlled that land' "); DB1[92] ("I understood them to mean that Prudentia had control over Plot D17"); DB1[121] ("Prudentia had the right over or controlled Plot D17"); DB1[142] ("Reed probably had a contact high-up in Nakheel and that it was through this contact that Reed had obtained control of Plot D17"); DB1[185] ("I also did not know how long Reed's control over the property would last for"); DB1[274] ("I believed Prudentia...had control and rights over Plot D17"); DB1[279.4] ("At all times I believed that Prudentia had control or rights over Plot D17"); Reply witness statement of David Scott Brown (27 June 2011): DB2[24] ("As I had been told by Joyce and by Austin that Prudentia had control of the land").

Witness statement of Soheil Abedian (6 August 2010): SA[45] ("I was informed by Brown and believed that he had been told that a block of land behind D5B was controlled by an Australian individual named Reed"); SA[50] ("My understanding of the email was quite clear: Reed had control over the plot"); SA[61] ("I understood this to mean exactly what it says, that Prudentia had come to an agreement with the master developer and that it was in control of the property"); SA[84] ("However we did not know the precise terms of that control by Prudentia and Reed"); SA[116] ("There is no reason why Sunland would pay any premium or consultancy fee to a party that had no control over that plot"). Prior to giving his oral evidence Abedian must have realised that it was insufficient for Sunland to establish a belief that the Prudentia parties merely "controlled" D17. He altered his evidence to contend that references to "control" meant "rights under a reservation agreement": Transcript, p 318.36; Transcript, p 335.14.

[50] Plaintiffs' Address (1 February 2012), paragraphs 80, 87, 89, 99, 101, 122 and 149.

[51] Plaintiffs' Address (1 February 2012), paragraph122.

[52] Plaintiffs' Address (1 February 2012), paragraph126; Transcript, p 1058.25.

[53] Closing Submissions of Fourth Defendant (27 January 2012), Section G.

[54] Second Further Amended Statement of Claim, paragraph 19; and see, above, paragraph 19.

[55] See below, paragraph 72.

[56] Second Further Amended Statement of Claim, paragraph 12.1. This conversation and the events surrounding it are discussed further below, see particularly, paragraph 51.

[57] Plaintiffs' Reply to the Supplementary Written Submissions of the Defendants, paragraph 16; referring to paragraphs 4 and 5 of the Reply Submissions of the Fourth Defendant (Joyce) (21 February 2012), which are set out above, paragraph 25:

"(a) SOC paragraph 13.3 pleads that Reed represented: 'I have the right over' or 'I control' Plot D17;

(b) SOC paragraph 12.2, pleads Joyce said words to the effect: 'Reed's company will be paying Dubai Waterfront AED135 sq/ft to purchase Plot D17';

(c) SOC paragraph in 14.2 pleads the email from Joyce stating: 'Anyway the issue for us is that you can come to an arrangement with them that allows you to deal directly with us'.

(d) SOC paragraph 18 pleads Joyce said words to the effect: 'Sunland should come to an agreement with Reed as soon as possible because there were other buyers around including Russians who might offer Reed AED220 sq/ft or more for the land'."

Further, it was submitted that paragraph 5(b) of the submissions on behalf of Joyce that Sunland never sought to establish that the representations in the terms in which they were put by Sunland were false ignores admissions made by the defendants (see Plaintiffs' Reply to the Supplementary Written Submissions of the Defendants, paragraphs 18-20. For the reasons indicated below, I do not accept that this is the case (see below, paragraphs 234-239).

[58] Reply Submissions of Fourth Defendant (Joyce) (21 February 2012), paragraph 7; set out above, paragraph 25.

[59] Plaintiffs' Reply to the Supplementary Written Submissions of the Defendants, paragraph 21.

[60] Plaintiffs' Reply to the Supplementary Written Submissions of the Defendants, paragraph 22; the email being an email from Reed to Alexis Waller, date 13 August 2007 (Court Book, PRU.001.007.0005) ; see below, paragraph 55.

[61] As to the irrelevance of communications with third parties to which Sunland was not privy at any relevant time, see below, paragraphs 445 - 446.

[62] Second Further Amended Statement of Claim, paragraph 22.

[63] Second Further Amended Statement of Claim, paragraph 24.

[64] Second Further Amended Statement of Claim, paragraph 30.

[65] Second Further Amended Statement of Claim, paragraph 33.

[66] See below, paragraph 33 to 44.

[67] Second Further Amended Statement of Claim, paragraph 41.

[68] Second Further Amended Statement of Claim, paragraph 57.

[69] Second Further Amended Statement of Claim, paragraph 47.

[70] Second Further Amended Statement of Claim, paragraph 46.

[71] See below, paragraph 425 to 442.

[72] Plaintiffs' Address (1 February 2012), paragraph 35.

[73] Plaintiffs' Address (1 February 2012), paragraph 209 (apparently a reference to the witness statement of Duane Keighran (8 August 2010), paragraph 41.5).

[74] Plaintiffs' Address (1 February 2012), paragraph 209 (apparently a reference to the witness statement of Duane Keighran (8 August 2010), paragraph 41).

[75] See Plaintiffs' Address (1 February 2012), paragraph 40; and Transcript, p 925.19.

[76] Plaintiffs' Address (1 February 2012), paragraph 209 (apparently a reference to the witness statement of Duane Keighran(8 August 2010), paragraph 42.2), .

[77] Plaintiffs' Address (1 February 2012), paragraph 209 (apparently a reference to the witness statement of Duane Keighran (8 August 2010), paragraph42.4).

[78] Plaintiffs' Reply to the Supplementary Written Submissions of the Defendants, paragraph 88.

[79] See above, paragraphs 25-27.

[80] Witness Statement of David Scott Brown (6 August 2010), paragraph 126, which reads:

"I was informed by Stringer [ie Clyde-Smith] and believe that she phoned Brearley to confirm that Prudentia had development rights over Plot D17, which Brearley confirmed."

[81] See, particularly, below, paragraphs 240 to 246; and noting that the reference to paragraph 126 of the Witness Statement of David Scott Brown (6 August 2010) is but one example of the confusion in this respect, noting that the reference at this point was to Prudentia having "development rights" over Plot D17.

[82] Plaintiffs' Address (1 February 2012), paragraph 212.

[83] Witness Statement of Duane Keighran (8 August 2010), paragraph 96 (with one proviso not presently relevant).

[84] Witness Statement of Duane Keighran (8 August 2010), Annexure DK-1 (pp 52 - 58) (Letter Hadef & Partners (Dubai) to DLA Phillips Fox (Brisbane).

[85] Witness Statement of Duane Keighran (8 August 2010), paragraph 94.

[86] Plaintiffs' Reply to the Supplementary Written Submissions of the Defendants, paragraph 90, referring to Witness Statement of Duane Keighran (8 August 2010), paragraph 93.

[87] Plaintiffs' Reply to the Supplementary Written Submissions of the Defendants, paragraph 90.

[88] Transcript, p 194.35 - .45; Court Book, MJJ.009.001.0092.

[89] Second Further Amended Statement of Claim, paragraph 11.1.

[90] Second Further Amended Statement of Claim, paragraph 11.2.

[91] Witness statement of David Scott Brown (6 August 2010), paragraphs 76 and 77.

[94] Transcript, p 23.10; see also witness statement of David Scott Brown (6 August 2010), paragraphs 76 and 77.

[95] Reply witness statement of David Scott Brown (27 June 2011), paragraph 17.

[97] Transcript, p 34.23 - .24; and see Court Book SUN.002.008.0006.

[100] Transcript, p 35.20 - .23 ; and see the other references to Brown saying that Austin said Reed had a "hold" on the land in Plaintiffs' Address (1 February 2012), paragraph 76. Reference was also made in Sunland's submissions to emails of 20 and 22 August 2007 from Lee to Joyce and from Joyce to Austin, respectively, as follows (Plaintiffs' Address (1 February 2012), paragraphs 123 and 124):

"MJJ.008.001.0066 ... is an email dated 20 August 2007 from Lee to Joyce that refers to putting 'pressure' on Brown, stating '...Omniyat was also in the running but I am not sure what they will be able to do'. Omniyat owned a plot which also adjoined plot D17.

In response Joyce instructs Austin: 'Jeff, these plots are not for sale, so I suggest you do not refer customers to our sales department as it will confuse everybody' (MJJ.008.001.0023) ....

These are, however, communications internal to DWF, communications to which Sunland was not a party. Consequently, they do not assist Sunland's statutory and tortious "misrepresentation" claims. If Sunland had been a party, I am of the view that their contents would not assist Sunland's case as they, in effect, confirm Austin's statements to Brown and are consistent with the Prudentia parties', including Reed, being in negotiations with DWF for the purpose of Plot D17, but having no better position than that. The same applies to the communications referred to in the Plaintiffs' Address (paragraphs 56 to 72; Reply Submissions of the First to Third Defendants to the Closing Submissions of the Plaintiffs (22 February 2012), paragraphs 8 and 16; and see the responsive submissions set out in Reply Submissions of the Fourth Defendant (Joyce) (21 February 2012), paragraphs 86 to 96.

[102] See below, paragraphs 304to 320.

[103] Witness statement of David Scott Brown (6 August 2010), paragraph 81.

[107] Court Book SUN.002.007.0096 (Notebook page 112); and see Transcript, p 36.31 - .32.

[110] Transcript, p 36.04 - .05 . Brown said that he kept his notebooks in a drawer behind his desk in his office in Dubai (Transcript, p 143.35 - .40); thus, as was not denied, the notebooks were readily accessible to him at all relevant times.

[111] A position consistent with the expert evidence of Keighran, referred to above, paragraphs 36 to 42.

[117] Transcript, p 86.01, p 128.15 - .16 ; see Court Book SUN.009.007.5554.

[118] Second Further Amended Statement of Claim, paragraph 12.1.

[119] Second Further Amended Statement of Claim, paragraph 12.2..

[120] Second Further Amended Statement of Claim, paragraph 12.3.

[121] Second Further Amended Statement of Claim, paragraph 12.4.

[123] Transcript, p 32.07 - .08 and p 198.01 - .12.

[125] Second Further Amended Statement of Claim, paragraph 12.

[126] Witness statement of David Scott Brown (6 August 2010), paragraph 82.

[128] Witness statement of David Scott Brown (6 August 2010), paragraph 82.

[129] Transcript, p 175.26 - .47 - 176.06 - .10. .

[131] And see Plaintiffs' Address (1 February 2012), paragraphs 85 to 91; and particularly, as to paragraph 88, with respect to Austin (cf paragraphs 48 - 50, above).

[132] Transcript, p 174.25 - 176.25; cf Witness Statement of David Scott Brown (6 August 2010), paragraph 82.

[133] See Closing Submission of Fourth Defendant (27 January 2012), paragraph 60; and see below, paragraphs 422- 424.

[137] Witness statement of David Scott Brown (6 August 2010), paragraph 83.

[142] Witness statement of David Scott Brown (6 August 2010), paragraph 85.

[144] Transcript, p 44.08 - 09 (emphasis added in Closing Submissions of the First to Third Defendants (31 January 2012), paragraph 4.4.7); Court Book, SUN.004.001.0053, at 0053.

[146] Witness statement of David Scott Brown (6 August 2010), paragraph 82; transcript, p 63.28 - .29; Court Book SUN.002.007.0001 at 0097.

[147] Transcript, p 177.15; Court Book, SUN.002.007.0001, at 0097.

[151] Transcript, p 64.14 - .17, p 64.38 - .40; see also Transcript, p 198.42 - .46 and p 198.01 - .07.

[157] Transcript, p 86.01, p 128.15; Court Book, SUN.009.007.5554.

[158] Plaintiffs' Address (1 February 2012), paragraphs 29 and 275(i).

[159] Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60; (2004) 218 CLR 592 at [10]; North East Equity Pty Ltd v Proud Nominees Pty Ltd [2010] FCAFC 60; (2010) 269 ALR 262 at [45] - [48]; and see below paragraph 351 and following.

[160] Plaintiffs' Reply to the Supplementary Written Submissions of the Defendants, paragraphs 34-38.

[161] Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60; (2004) 218 CLR 592 at [36] - [37] per Gleeson CJ, Hayne and Heydon JJ.

[162] See Reply Submissions of the Fourth Defendant (Joyce), paragraph 21.

[163] And see below, paragraphs 352 and following.

[164] See above, paragraphs 25 - 27.

[165] See above, paragraphs 25 - 27 and paragraph 40; and, below, paragraphs 232-239.

[166] Reply Submissions of the Fourth Defendant (Joyce), paragraph 22.

[167] See, further, below, paragraphs 321-332.

[168] See Plaintiffs' Address (1 February 2012), paragraphs 85 to 91.

[169] See above, paragraphs 46 - 50.

[172] Court Book, SUN.002.007.001, at .0096 - .0097.

[175] Witness statement of David Scott Brown (6 August 2010), paragraph 88.

[176] Witness statement of David Scott Brown (6 August 2010), paragraph 88.

[177] Witness statement of David Scott Brown (6 August 2010), paragraph 91; and reply witness statement of David Scott Brown (27 June 2011), paragraph 19.

[179] Witness statement of David Scott Brown (6 August 2010), paragraphs 78.

[180] Witness statement of David Scott Brown (6 August 2010), paragraph 79.

[181] Second Further Amended Statement of Claim, paragraph 13.1.

[182] Second Further Amended Statement of Claim, paragraph 13.2.

[183] Second Further Amended Statement of Claim, paragraph 13.3.

[184] Second Further Amended Statement of Claim, paragraph 13.4.

[185] Witness statement of David Scott Brown (6 August 2010), paragraph 92.

[186] Witness statement of David Scott Brown (6 August 2010), paragraph 92.

[189] Court Book, SUN.014.001.0032, at .0033. The authenticity of this document was challenged by Sunland on the basis that it had not been formally proved or tested in cross examination. The primary objection made was to the accuracy of translation, a matter which could be said to have been addressed in part as a result of the cross examination of Brown in relation to its contents. In any event, though referred to in support of the defendants' case it is not relied upon in any way for the purpose of these reasons for judgment.

[190] Brown did not make enquiries which he had made in relation to other sites, see above, paragraphs 43 and 44.

[191] Witness statement of David Scott Brown (6 August 2010), paragraph 92.

[192] Witness statement of David Scott Brown (6 August 2010), paragraph 92; and see Court Book, SUN.002.007.0001, at .0099.

[193] Witness statement of David Scott Brown (6 August 2010), paragraph 92.

[195] Transcript, p 32.30 - .39; and see above, paragraph 49.

[197] Transcript, p 21.10 - .11; reply witness statement of David Scott Brown (27 June 2011), paragraph 7.

[199] Transcript, p 48.31 - .35 (emphasis added in the Closing Submissions of the First to Third Defendants (31 January 2012), paragraph 4.8.5).

[200] Transcript, p 32.07 - .08; see also Transcript, p 195.36; see also Transcript, p 205.27.

[203] See Plaintiffs' Address (1 February 2012), paragraph 95. Indeed, for the reasons discussed further below, it would be implausible to suggest that Sunland did not think this was the position as it paid the fee to the Prudentia parties to step into these "negotiating shoes" (see below, paragraphs 163 to 166; and see paragraph 222). The position is not changed by reference to internal communications between the Prudentia parties, even assuming that they were unequivocally in support of Sunland's position, which I do not accept (see Plaintiffs' Address, paragraph 99 (and as to paragraph 99(e), see below, paragraph 57 and see Plaintiffs' Address, paragraphs 103 to 107 and 137 to 140).

[208] Note that the transcript says Aidarous, but clearly Aidarous was not involved.

[209] Witness statement of David Scott Brown (6 August 2010), paragraph 93.

[212] Witness statement of David Scott Brown (6 August 2010), paragraph 93.

[213] Witness statement of David Scott Brown (6 August 2010), paragraph 94.

[214] Witness statement of David Scott Brown (6 August 2010), paragraph 94.

[217] Closing Submissions of the First to Third Defendants (31 January 2012), paragraph 4.8.11.

[218] Transcript, p 113.25 - .47 and p 114.01 - .09; see also Transcript, p 74.41 - .45.

[219] Second Further Amended Statement of Claim, paragraph 14.2..1.

[220] Second Further Amended Statement of Claim, paragraph 14.1.1.

1. [221] Second Further Amended Statement of Claim, paragraph 14.2.2; and see Plaintiffs' Address (1 February 2012), paragraph 91.

[222] Second Further Amended Statement of Claim, paragraph 14.2.3.

[223] Witness statement of David Scott Brown (6 August 2010), paragraph 97; Court Book SUN.001.005.0002.

1. [224] Witness statement of David Scott Brown (6 August 2010), paragraph 98; Court Book SUN.001.005.0002.

[225] Witness statement of David Scott Brown (6 August 2010), paragraph 100.

[227] Second Further Amended Statement of Claim, paragraph 14.2.2; Court Book SUN.001.005.0002.

[228] Witness statement of David Scott Brown (6 August 2010), paragraph 57.

[231] Court Book, SUN.004.002.0036, at .0037: "We understood from Nakheel that we had to have an arrangement with Angus Reed to be able to develop the plot together". (emphasis added)

[232] Court Book, SUN.001.005.0004; and see Witness statement of David Scott Brown (6 August 2010), paragraph 123.

[234] See, for example, Plaintiffs' Address (1 February 2012), paragraph 99(e).

[235] See Reply Submissions of the Fourth Defendant (Joyce) (21 February 2012), paragraph 114.

[238] Transcript, p 32.07 - 08 and p 198.01 - .12.

[239] In this respect, the following entry for the word "foot" (noun) appearing in the Oxford English Dictionary is noted:

"33. under foot: (sometimes written as one word.) a. beneath one's feet; often to trample or tread under foot (also feet), in lit. sense, also fig. to oppress, outrage, condemn. To bring, have under foot: to bring into, hold in subjection. To cast under foot: to ruin.

The expression is, however, clearly used more idiomatically. The closest formal references to similar idiomatic use appear in the following reference works; the first in the Oxford Dictionary of English Idioms and the second in Webster's New World American Idioms Handbook:

have (or get) a foot in the door have (or gain) a first introduction to a profession or organization.

to succeed in the first small step toward a larger opportunity or success; often used in a business context. Alludes to a door-to-door salesman putting his foot in the doorway to prevent the door from being closed before he or she can make a sales pitch. ♦ He's tried three times to meet with the director, but hasn't gotten his foot in the door yet. ♦ The only way to get your foot in the door with that company is to know someone who works there.

Clearly idiomatic expressions must, when used, derive particular meaning from the context of their usage. Nevertheless these "definitions" emphasise a common thread, namely that the use of these and similar expressions do not generally connote any "right" or "entitlement".

[240] Plaintiff's Reply to the Supplementary Written Submissions of the Defendants, paragraph 106; and see below, paragraphs 128 and following.

[241] Plaintiff's Reply to the Supplementary Written Submissions of the Defendants, paragraph 107; referring to the email contained in Court Book, SUN.009.003.4440.

[242] Transcript, p 388.11 - .12; .25 - .26; and .34 - .35.

[244] See Plaintiffs' Address (1 February 2012), paragraphs 110 to 112, 213 and 318(a), and Closing Submissions of Fourth Defendant (27 January 2012), paragraphs 369 to 380.

[245] See Reply Submissions of the Fourth Defendant (Joyce) (21 February 2012), paragraph 123.

[246] Court Books, SUN.003.005.0015, SUN.003.005.0006, SUN.003.005.0019.

[247] Court Book, SUN.014.001.0045. As to the status of this document, the authenticity of which is challenged by Sunland, see above footnote 189.

[250] Court Books, SUN.014.001.0005, SUN.014.001.0032. As to the status of this document, the authenticity of which is challenged by Sunland, see above footnote 189.

[251] Court Book, SUN.004.001.0053. It is unclear when Brown prepared them, however the content suggests it was after 16 February 2009, as they are consistent with the new version of events he began telling the Dubai authorities from that point.

[260] And see below, paragraphs 269 to 270.

[261] Witness statement of Soheil Abedian (6 August 2010), paragraph 50.

[263] Second Further Amended Statement of Claim, paragraph 15.1.

[264] Second Further Amended Statement of Claim, paragraph 15.2.

[265] Second Further Amended Statement of Claim, paragraph 15.3.

[266] Second Further Amended Statement of Claim, paragraph 15.4.

[267] Second Further Amended Statement of Claim, paragraph 16.1.

[268] Second Further Amended Statement of Claim, paragraph 16.2.

[269] Second Further Amended Statement of Claim, paragraph 16.3.

[270] Witness statement of David Scott Brown (6 August 2010), paragraph 102.

[272] Witness statement of David Scott Brown (6 August 2010), paragraph 103; see also reply witness statement of David Scott Brown (27 June 2011), paragraph 31.

[273] Witness statement of David Scott Brown (6 August 2010), paragraph 103.

[274] Witness statement of Soheil Abedian (6 August 2010), paragraph 46.

[275] Witness statement of David Scott Brown (6 August 2010), paragraph 104.

[276] Witness statement of David Scott Brown (6 August 2010), paragraph 106; see also Court Book SUN.002.007.0001 at .0101.

[277] Witness statement of Soheil Abedian (6 August 2010), paragraph 52.

[278] Witness statement of David Scott Brown (6 August 2010), paragraph 106 - 107.

[281] Reply witness statement of David Scott Brown (27 June 2011), paragraph 28.

[282] Reply witness statement of David Scott Brown (27 June 2011), paragraph 28.

[283] Witness statement of David Scott Brown (6 August 2010), paragraph 119.

[285] Witness statement of David Scott Brown (6 August 2010), paragraph 108.

[286] Witness statement of David Scott Brown (6 August 2010), paragraph 118.

[287] Witness statement of David Scott Brown (6 August 2010), paragraph 109.

[288] Witness statement of David Scott Brown (6 August 2010), paragraph 110.

[289] Reply witness statement of David Scott Brown (27 June 2011), paragraph 27.

[293] Reply witness statement of David Scott Brown (27 June 2011), paragraph 29.

[294] Transcript, p 52.38 - .46 and p 53.1 - .04.

[295] Reply witness statement of David Scott Brown (27 June 2011), paragraph 21.

[296] Witness statement of David Scott Brown (6 August 2010), paragraph 108.

[297] Witness statement of David Scott Brown (6 August 2010), paragraph 82.

[298] Transcript, p 231.03 - .05; see SUN.004.002.0063 - .066.

[300] Transcript, p 233.44 - .46 and p 234.01 - .10.

[304] Transcript, p 210.41 - .47 and p 211.1 - .10.

[305] See below, paragraph 226 and following (as to the significance of Sunland's knowledge of the Och-Ziff involvement).

[306] Court Book, SUN.009.003.4429; and see PRU.001.007.0176.

[307] Transcript, p 54.40 - .47 and p 55.01 - .06.

[308] Witness statement of David Scott Brown (6 August 2010), paragraph 123; Court Book, SUN.001.005.0004.

[309] Witness statement of David Scott Brown (6 August 2010), paragraph 128.14.

[310] See Court Book, SUN.009.003.2274 (which is a chain of emails containing this email).

[311] Emphasis added in the Closing Submissions of the First to Third Defendants (31 January 2012), paragraph 4.14.1.

[314] Witness statement of David Scott Brown (6 August 2010), paragraph 129; Witness statement of Soheil Abedian (6 August 2010), paragraph 56.

[315] Witness statement of Soheil Abedian, paragraph 56.

[316] Witness statement of David Scott Brown (6 August 2010), paragraph 130; Court Book, SUN.009.003.4440.