Sunland Waterfront (BVI) Ltd & Anor v Prudentia Investments Pty Ltd & Ors [2013] VSCA 237

Sunland Waterfront (BVI) Ltd & Anor v Prudentia Investments Pty Ltd & Ors [2013] VSCA 237 - VSCA 2013 case summary — Zoe

[322]

The evidence indicates that this is, in fact, how Brown read the email at the time he received it. In Brown's email to Austin on 19 August 2007, he confirmed that the discussions he had with Reed on that day were in furtherance of the joint venture on Plot D17. In Brown's email to Sahba Abedian (the Managing Director of Sunland Group Limited) (with Soheil Abedian copied in), the very next day, 20 August 2007, Brown wrote:

'Angus has his foot on the site [emphasis added] behind our Waterfront Plot, and we are negotiating a potential JV with him. We will have a Draft MOU from Freehills in the next 2 days, which we will respond to. The deal would be they would put in the land, Sunland pay the Deposit on the land, (about AED 12m) and the JV fund the Soft Costs through to Financing or Escrow operation. 50/50 Profit Share, and we get our Fees paid through the job.'

Sunland relied on this email in support of its submission that Reed said to Brown words to the effect that he had a 'hold' on the Plot or that he 'controlled the plot'. In the context of this email, it was submitted against Sunland that the meaning of the idiom to 'put one's foot on' something meant to lay claim to it and, as such, Brown's choice of words in this email goes against Sunland. Brown gave evidence in cross-examination, in respect of the 12 September 2007 'put your foot on the plot' email, that he thought that to 'put our foot on the plot to secure it' meant to sign a SPA. However, I accept that the submission that Brown used the phrase in the same way in his 20 August 2007 email to Sahba Abedian is not open to Sunland, given Brown's admission that he knew when he sent this email, that there was no signed SPA in favour of Reed, or the Prudentia parties. Accordingly, it follows in my view that Brown's reference to Reed having his 'foot on the site' on 20 August 2007 must be understood according to the conventional meaning of that idiom, which does not generally connote something in the nature of a legal entitlement.[138] Sunland, in its responsive submissions, emphasised the use of the word 'has' with respect to Angus and his foot having some significance in relation to these idiomatic uses by reference to the difference in expression in this respect in the 'put your foot on it' email. In my view, this is merely a semantic distinction and does not affect the sense conveyed in the 20 August 2007 email, as indicated. Neither do I think Sunland's position is aided in this respect by the reference to another email sent by Brown to Reed on the same day: 'Unfortunately we cannot proceed on a Joint Venture based on the terms outlined in your email. We wish you all the best with this ...'.

[327]

Reed told me that he had been to see Nakheel before seeing me.

Reed confirmed that his American partners were Och-Ziff, who were a hedge fund with $30 billion in investments. He also mentioned he had worked with people, or had an office in Hong Kong (I cannot remember which), who were connected with Och-Ziff in some way. He said he was representing this Group and that he was looking at property investment opportunities in Dubai. He told me that his contact in Hong Kong was 'Zoltan'.

Reed outlined the terms of a JV as he saw it. Reed stated the land price in this area of Waterfront would be as high as AED 175/sqft, but he could obtain a price of AED 135/sqft from Dubai Waterfront. Based on this saving, he wanted a fee of AED 40/sqft multiplied by the total BUA on the site, (which was AED 1,607,052), which would be approximately AED 65M. Reed requested that this uplift be paid as a consultancy fee to Prudentia for services. Reed indicated that a consultancy fee would be more tax effective for Prudentia.

Reed said the fee could be paid either by Sunland paying to have equity in the deal, or Sunland alternatively could contribute the soft costs and land payments to the joint venture up to this value.

Reed said Sunland would need to make payments if purchasers' escrow fund payments were insufficient. In Dubai, purchasers pay an initial deposit into an escrow account and then make regular instalment payments into that account during construction, with a smaller payment at completion. Sunland would not start construction until it thought it had sold enough units to ensure that there were enough payments in the escrow account to complete construction. He said that if funding was required, then he knew ANZ Bank from Australia could be a good option as he knew that they were aggressively looking to lend development funds.

Reed said his deal with Dubai Waterfront was based on AED 135/sqft on BUA with the following payment terms:

5% on execution of the contract;

10% at handover (in about 6 months);

10% at 6 months after handover;

20% at 12 months after handover;

20% at 18 months after handover;

20% at 24 months after handover;

15% at 36 months after handover.

This payment plan was the same one advised by Joyce in the 15 August 2007 phone call that I discuss above.

Reed said to me that his lawyers would draft up a MOU.

I told Reed that Sunland would consider his proposal and discuss it with Soheil, and suggested that we meet again the next day.

Reed presented himself to me as a person whose objective was to identify a partner who was a strong developer that could deliver for his investment group in the Waterfront project.

...

Reed showed me the Nakheel plan for the re-design of Plot D17 at that meeting. It was the same plan that Austin had shown me on 15 August 2007, namely the plan now shown to me [SUN.002.008.0006]. We discussed the shortcomings of the plan and I told him Sunland was working on some ideas to improve it.

There were a number of things he was telling me that tied in with what Joyce had told me. It all added up. He came across as a serious JV partner, looking for a premium on the land. This was not unlike Sunland, which would normally charge a JV partner a fee for Sunland securing a site and producing a concept design which optimised the site yield.[139]

[380]

In any event, even on Brown's account of the conversation on 29 August 2007, the words said to have been spoken by Joyce do not convey a representation that Reed or Prudentia had some legal or other right to Plot D17. The words attributed to Joyce are wholly consistent with Reed simply being in negotiations with DWF in respect of plot D17. As was submitted on behalf of Joyce, there is no doubt, as Sunland knew from experience, that there were a huge number of property speculators, as opposed to the proven developers Joyce was most interested in getting involved in the Waterfront project, doing business in Dubai who might be interested in offering DWF larger sums of money for Plot D17. According to Brown, Lee and Joyce were keen to get proven developers in to actually build on the land in Precinct D, rather than perpetuate the speculative cycle of plot "flipping".[156] Accordingly, it was submitted on behalf of Joyce that the statements attributed by Sunland to Joyce were neither misleading nor deceptive. Indeed, it was submitted, they were exactly what one might have expected from someone of Joyce's seniority. On the basis of these submissions and the evidence already considered in relation to the Plot D17 transaction, I am of the view that this is entirely correct, both in terms of Joyce's statements being neither misleading nor deceptive and also that, in the circumstances, they were the sort of statements one would have expected from a senior officer of DWF, such as Joyce. Finally, I also accept that, in any event, whatever transpired during this conversation, it was entirely superseded by the advice given to Brown in his telephone conversation with Lee and Brearley on 12 September 2007 in which they told Brown that Sunland and Prudentia had better "put their foot on" Plot D17 to secure it. For reasons indicated in more detail elsewhere, I regard that conversation and the emails and other events which flowed from that as making it absolutely clear, if it was not already clear, that no representations were being made by Joyce, Reed or the Prudentia parties which were misleading or deceptive or, in terms of the tort of deceit, fraudulent.

...

In my opinion, the Sunland evidence in relation to this 29 August 2007 conversation does not assist Sunland's case. It is equivocal in critical respects and, further, is, in my view, quite consistent with Joyce simply urging Sunland to "get on with" its joint venture arrangements in relation to Plot D17. ...

[402]

On 12 September 2007, I received a telephone call from Brearley and Lee at Waterfront. My file notes of this call are contained at page '.0122' of my Notebook and at page '. 0055' of the document now shown to me. In my typed notes, I say that this was a meeting. After further consideration, I believe that it was a telephone call.

Brearley and Lee said to me that it would be a lot easier if Och-Ziff did not want to proceed with the site and Sunland could buy the site itself for AED 120/sqft.

I understood, from this discussion, that Dubai Waterfront still required Sunland to deal with Reed, Prudentia and Och-Ziff prior to having any rights to the plot. By Brearley and Lee stating that it would be easier if Och-Ziff did not want to proceed with the site, I understood that this meant Och-Ziff or Prudentia had control over the property.

During this telephone call, either Brearley or Lee said to me:

That they had attended a meeting on the evening of 11 September 2007 with the marketing department;

That they had concerns that the marketing people will try and sell Plot D17 and that they would have no control over it;

You should immediately "put your foot on the plot".

After this telephone call, on the same day, I sent an email to Reed, a copy of which is shown to me. This email said:

Angus,

Looking forward to receiving the MOU tomorrow, but heard some news today which I felt I needed to pass on to you.

I received a call from Marcus Lee (Matt Joyce's No. 2) and Anthony Brearley (the DWF Lawyer) regarding Plot D-17.

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 to 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)

This Agreement will spell out the Price and Payment Plan, which you have advised me is around 130-135AED/Ft2 over 36 months, with 5% Deposit.

Can I recommend a way to proceed with this as follows-

* Sunland meet immediately with DWF lawyers to draft the SPA

* 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.

If you have an alternative (quick) solution which is better, please let me know.

A day in Dubai is like 6 months anywhere else.

As is apparent from this email, I was considering a way for Sunland to secure the property. 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. I thought that this could be someone like the Patalli group that Joyce had mentioned to me in our conversation on 29 August 2007. I also knew that Prudentia was negotiating with other potential investors like Omniyat. I also did not know how long Reed's control over the property would last for, as I did not know the basis for it, but I did know that he had not signed an SPA. At our meeting on 20 August 2007, Reed had indicated a strong desire that our negotiations be concluded by late September 2007. What Brearley and Lee had said to me could also have been consistent with Reed losing his control of D17 some time not long after the end of September 2007, at which point the Nakheel sales and marketing department might have been able to arrange for the property to be sold by Nakheel directly to someone else.[159]

[406]

In the course of cross-examination, it was suggested to Brown that if he were to write to Reed saying '[t]hey suggest we immediately put our foot on the plot to secure it, it follows, doesn't it, that at that time you don't have your foot on the plot'. Brown would not accept this obvious interpretation of the email. Brown also said that '[w]e were taking advice from Marcus and Anthony about what to do', but never asked the nature of the Prudentia or Reed 'hold' on Plot D17. Brown also said that he was 'not sure what DWF told the marketing people about Reed's rights to the plot', but sought, unjustifiably in my view, to implicate Joyce in these events:

there was a conversation with Joyce at the same time, who also referred to the marketing people and said the price could affect the price to Sunland and that all they had to do was to find Reed and potentially introduce somebody else who could pay more. That's in my notes.

Brown was challenged on that evidence:

What, a conversation with Mr Joyce, did you say?Yes, it's in my notebook.

What date?I don't have it in front of me.

Don't you recall this conversation? It would be quite important, I suggest?I do recall the conversation.

You don't recall when it occurred?Around the same time.

Do you mean a conversation in September 2007?Yes.

You've got your witness statement there, haven't you?No.

Could the witness be shown his witness statements, please. September 2007, in your witness statements, begins around paragraph 165. Do you see that?Yes.

I don't see in your witness statement any conversation you depose to with Mr Joyce in September 2007. Can you find one, Mr Brown?Well, if I can direct you to 183 and 185.

Yes?183 refers to the conversation you're talking about.

Yes?185 refers to a conversation I had with Joyce, which was actually earlier, the end of August, and he said, 'Prudentia could be introduced to someone else by the Nakheel sales and marketing department who could potentially pay Prudentia a higher premium. I thought that this could be someone like the Patalli group that Joyce mentioned to me in the conversation on 29 August.'

Yes, but that conversation with Mr Joyce that you depose to occurred on 29 August; correct?Correct.

This is a discussion on 13 September, which is two weeks later?Yes, but the tone of the conversations was remarkably similar and if you see the diary note or notebook note, you'll see there is more information actually there ...

Brown was asked further questions in cross-examination in relation to Reed's 'entitlement' to Plot D17 in light of the 'put your foot on it' email:

That's not quite my question. If the marketing people could sell the plot, what sort of entitlement to the plot - when you were told this - did you believe Reed or Prudentia had? --- 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.

Again Brown affirmed that he did not ask Lee or Brearley as to the nature of the 'hold' of Prudentia or Reed Plot D17:

Because of the background? This didn't cause you any concern? You said it did cause you concern. So even though it caused you concern, you didn't ask Lee or Brearley, who you dealt with, what the nature of the hold on the plot was?---No, we didn't.

When you wrote 'Put our foot on the plot to secure it,' what did you mean by the words 'secure it'?---To sign a sale and purchase agreement.

I couldn't hear that?---To sign a sale and purchase agreement.

And why did you need to do that?---Because that was the final event in owning a plot of land.

To tell someone you've got to put your foot on the block to secure it, I suggest to you, Mr Brown, is words from a state of mind that knows that the block is not secured until you put your foot on it?---No, what they were trying to do was to take it to the next step - - -

No, just answer the question please, Mr Brown. It's a pretty straightforward question. To say that in the terms you did, to say it needs to be secured, comes from a person that was of the state of mind that knew until you put your foot on it, it wasn't secure?---No, I don't agree. That was an arrangement between Prudentia and Nakheel on this point. [160]

[419]

In any event, returning to the evidence, Brown's evidence as contained in his 6 August 2010 witness statement, was that as a result of the 'put your foot on it' email, Brown thought 'Prudentia could be introduced to someone else by the Nakheel sales and marketing department, who could potentially pay Prudentia a higher premium'. Presumably, this was an allusion to the practice in Dubai of entities purchasing plots of land from another entity which had entered into a SPA with the master developer for that plot by paying a premium to the then existing purchaser and obtaining a SPA themselves, having obtained the consent and agreement from the master developer, which would be a party to the new SPA. The previous SPA would, in the course of this transaction, be cancelled and released by agreement with the then existing purchaser and the master developer. Brown was cross-examined in relation to his written statement:

My point is the inconsistency, Mr Brown. In your oral evidence in response to questions from Mr Rush you said, 'Oh, well, the email might reflect the fact that the marketing people weren't in the loop.' Do you understand that answer?Yes.

Whereas in paragraph 185 [of your witness statement], you said the belief you had was that they could introduce Prudentia to another buyer. They're different answers, aren't they?They are different scenarios, yes."

Brown also gave evidence in response to my questions on this issue:

HIS HONOUR: Mr Brown, it says, 'I suggest we immediately put our foot on the plot to secure it.' We've debated what you think that means. But in the preceding sentence, 'Marcus and Anthony are now concerned that the marketing people are likely to try to sell the plot and they will have no control over this.' On a plain reading, it seems to indicate that that plot is up for grabs at that stage by whoever comes along and negotiates with the marketing people. Can you explain to me why that is not a fair reading of that document and if there is some control over the plot that you assert, explain to me exactly what it is?I know it sounds like that, your Honour, but I mean at the time I felt that the marketing people just weren't in the loop on what arrangement Prudentia had.

What control was there over the plot?There was clearly an arrangement between Prudentia and DWF because we were told by a number of different people.

That is the explanation for the control, is it?Yes, yes. I mean, Austin started by telling us they had a hold; Joyce told us he was the contact for that plot; later said 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. So there was a series of events that linked all this together for us.

Are you saying the hold is contractual?I don't know what the hold was. We weren't told what type of hold it was, but there was a hold.

So you don't know the nature of the hold and you don't know whether it's contractual?No, but I mean we're not talking about real estate activities in Australia, we're talking about real estate activities in Dubai, which are quite different.

I appreciate that, but I would have thought there is still an explanation on the basis of accepted legal concepts?I think our impression was we were talking to very high level in the government, we'd been given quite clear, distinct information about it, and we relied on that and that's the basis for our actions.

Brown added that he did not ask anyone about the nature of the entitlement that Prudentia or Reed had over Plot D17 because '[w]e were already told they controlled the plot; we didn't need to ask'. In view of the contents of the 'put your foot on the plot' email and Brown's statement in that email that 'we need to sign a Sale of Purchase Agreement (SPA)', and for the reasons already expressed, one would have to be very sceptical of this evidence - in fact, so sceptical as to regard it as somewhere between an attempt to rationalise these events ex post facto in support of Sunland's case and a fabrication, an untruth. On the basis of these and other inconsistencies and contradictions in Brown's evidence, and with other evidence (documentary and otherwise), Brown cannot, in my view, be regarded as a reliable or truthful witness with respect to critical matters. Additionally, it is clear that, at various times, Brown's personal interests (including the fear of remaining the subject of investigation for bribery by the Dubai authorities), together with his and Sunland's commercial interests, coloured his statements and communications at various times. This view, both generally and in relation to these events, is reinforced by the further evidence of Brown and Abedian to which I now turn; and also having regard to the lack of any evidence that Clyde-Smith was at all surprised by the 'put your foot on it' email or Brown's inclusion of the comment as to the need to sign a SPA. [166]

[464]

31.1 to prepare an agreement identical to the Prudentia Agreement, except that it would be expressed to be between SWB and Hanley;

31.2 that such agreement would take the place of the agreement between Prudentia and SWB referred to in paragraph 30.1 above; and

31.3 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 Prudential Agreement.

Particulars

31.4 Hanley's retainer and instructions pleaded in this paragraph are to be inferred from the facts pleaded in paragraph 32 below.

32 On 26 September 2007, Sinn sent an email to Brown (cc'd to Reed) that:

32.1 included the words:

'Great news!

For structuring purposes, Prudentia has decided to incorporate a new company 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 clients 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'; and

32.2 attached a revised version of the Prudentia Agreement ('the Hanley Agreement') that:

32.2.1 replaced all references to Prudentia with references to Hanley, and which had not been executed by Hanley;

32.2.2 recited in clause 1 'Background' that 'Hanley has reached agreement with [Dubai Waterfront LLC] to acquire and develop [Plot D17]';

32.2.3 provided in clause 2 of the operative part that 'In consideration of payment of the Consultancy Fee, Hanley agrees to transfer to Sunland its right to negotiate and enter into a plot sale and purchase agreement for the acquisition of [Plot D17] with [Dubai Waterfront LLC]'; and

32.2.4 defined the total Consultancy Fee as being AED44,105,780.[189]

[617]

There was unchallenged evidence, led by Sunland, of the practice in Dubai in 2006 and 2007 of secondary buyers acquiring the transfer to them of the contract to purchase land held by a primary buyer with the seller (eg a master developer). The primary buyer would extract a 'premium' from the secondary buyer, and the master developer would typically charge a 'transfer fee'.[272] The judge described this method of contract novation as 'the usual way' in Dubai.[273]
Again there seems to be no reason why the same commercial imperatives that the judge found drove Sunland to pay the Hanley fee, in the circumstances before him, would not similarly have motivated it to pay a premium to Prudentia to obtain a transfer of Prudentia's SPA. Likewise there is no reason not to assume that Prudentia would have been able to negotiate the same or similar terms for the purchase of plot D17, in the altered scenario, as it was able to negotiate with DWF shortly before Sunland offered to pay Prudentia a fee to 'go away'.
Whether or not the premium paid in the hypothesised circumstances would have been the same amount as the Hanley fee of $14 million is, of course, difficult to say with any confidence. But that was the figure agreed upon by the parties in the actual transaction at hand, and the postulated transaction does not appear to involve significantly different commercial dynamics. Notably, Sunland did not produce any evidence to say what amount it would likely have paid by way of premium had Prudentia held an SPA. It did not give evidence that in those altered circumstances it would not pay $14 million, but something less, nor did it produce evidence to support the proposition that in those circumstances Prudentia would have accepted something less. Accordingly we think it was reasonable to regard Sunland as not having discharged an evidentiary onus to show that it would not have had to pay a similar amount as a premium for the transfer of an SPA as the amount it paid as a consultancy fee under the Hanley agreement.
On appeal Sunland drew attention to one email from Jim Goldburg (of Prudentia) to Reed of 3 September 2007 as evidence suggesting that Prudentia could not have gone through with the transaction itself. The email in question contemplates the possibility of Prudentia not entering a joint venture with Sunland (because Reed did not trust Sunland) and queries what other partners Prudentia might approach. Some problems were identified with some of the potential partners although the email does not suggest they were insoluble, nor that Prudentia would not move ahead to 'secure' the land in any event. Nevertheless the proposition was never put to the test. In our view that evidence does not establish that Prudentia was unable to proceed without Sunland.

[633]

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

"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."

Brown was then taken specifically to the translation of the search warrant:

"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."

Brown was then asked:

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

Following this acknowledgment, the cross-examination continued:

"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."[288]

[636]

In spite of Brown's evidence, Abedian maintained his claim that a hard copy of the Joyce email was handed to him by Brown. According to Abedian, this email was of such importance to him that he kept it in his office drawer. Indeed, his evidence was that it was so important that from time to time he "showed [it] to some people that it was important to me". In spite of its claimed importance, Abedian's evidence was that he no longer has a copy of this email, having disposed of it in an office move around December 2006, September to December 2006, at the end of 2006. This, of course, could not have occurred, as the email was not in existence at this time, being an email in August 2007. As submitted against Sunland, I must conclude that Abedian's evidence of keeping this email was a complete fabrication, as is clear from the following part of his evidence in cross-examination:

"If you were showing this email to people like Mrs Joyce and Mr Bin Haider in early 2009, how could you have disposed of the email as part of an office move in December 2006? The email didn't even exist in 2006?No, the move, we made it in the end of 2007, 2007.

I see, before Christmas?I think so. I could not give you exact date about the move of the office.

Well, if it was before Christmas, then you didn't have that email at the time Mr Joyce was arrested, did you?No, I had because I can vividly remember that David gave me the email, that is why I am telling you, when he was arrested. Shortly after, I showed it to Angela.

Your evidence is you disposed of the email, the hard copy you kept in your drawer, at the time of the office move; correct?That's correct.

Your office move was at the end of 2007?I don't know exactly the time. I can find out and let you know.

It was well prior to the arrest of Mr Joyce?It was, correct.

Yes, so when you have your meeting with Mrs Joyce, you don't have that original email, do you?With Mrs Joyce?

Yes?No, I had in my hand, I showed it to her.

How could you have the original email that you kept in your drawer if you disposed of it at the end of 2007 as part of an office move?Maybe it wasn't disposed, maybe I kept it, maybe I asked David to give me another copy. It was always there for me to access it. I didn't need to keep anything. I could have had a hundred copies of that." [289]

[876]

(1) among other things, the object of the Civil Procedure Act, is to reform and modernise the practice, procedure and processes relating to civil proceedings in the Supreme Court, and other courts. Importantly, provision is made for an overarching purpose in relation to the conduct of civil proceedings which is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute in those proceedings;[424]

(2) in the exercise of its powers, the Court must seek to give effect to the overarching purpose, whether these powers arise from the procedural rules or practices of the Court or otherwise;[425]

(3) an overarching obligation is cast upon parties and legal practitioners representing or acting on behalf of a party, whether they be barristers or solicitors, to act honestly at all times in relation to a civil proceeding and not to make any claim or make a response to any claim in a civil proceeding that is frivolous, vexatious, an abuse of process or does not, on the factual and legal material available to the person at the time of making the claim or responding to the claim, have a proper basis;[426]

(4) an overarching obligation applies to the persons referred to in the preceding paragraph to disclose to each party the existence of all documents that are, or have been, in that person's possession, custody or control of which the person is aware and which the person considers, or ought reasonably consider, are critical to the resolution of dispute. Disclosure must occur at the earliest reasonable time after the person becomes aware of the existence of the document or at such other time as the Court may direct. These provisions do not apply to any document which is protected from disclosure on the grounds that privilege which has not been expressly or impliedly waived or under any other Act (including any Commonwealth Act) or other law;[427] and

(5) in exercising any power in relation to a civil proceeding, including the exercise of the discretion as to costs, the Court may take into account any contravention of the overarching obligations.[428]

At a glance

Court

Decision date

Before

Source

Judgment (1171 paragraphs)

Sunland Waterfront (BVI) Ltd & Anor v Prudentia Investments Pty Ltd & Ors [2013] VSCA 237 (6 September 2013)

Parties

Legislation Cited (5)

Cases Cited (37)