[2012] VSC 399 (Croft J)

TRADE PRACTICES - Misleading or deceptive conduct - Appeal from trial judge's dismissal of appellants' claims for damages - Degree of precision required in pleading and proving representations where impugned conduct is alleged to be founded upon oral statements − Whether trial judge erred in not considering certain evidence said to demonstrate an intention to mislead or deceive − Whether pleaded representations were made by respondents - Whether respondents' conduct was misleading or deceptive or otherwise in breach of statutory prohibitions - Whether the appellants relied on any conduct including misrepresentations to their detriment - Whether loss or damage established by the appellants - Whether judge erred in making adverse findings as to credit of appellants' witnesses - Extra-territorial application of trade practices legislation - Appeal dismissed - Watson v Foxman (1995) 49 NSWLR 315 − Gould v Vaggelas (1985) 157 CLR 215 − Fox v Percy (2003) 214 CLR 118 - Trade Practices Act 1974 (Cth) ss 5(1), 52, 53, 82 - Fair Trading Act 1999 (Vic) ss 9, 12.

DECEIT − Claim for damages founded upon the same representations as alleged for claim based upon statutory contravention − Whether trial judge erred in not considering certain evidence said to demonstrate joint purpose − Claim failed for failure to prove alleged representations − Appeal dismissed.

PRACTICE AND PROCEDURE - Importance of pleadings in large and complex litigation - ASIC v Rich [2009] NSWSC 1229; (2009) 236 FLR 1.

PRIVATE INTERNATIONAL LAW - Anti-suit injunction - Appeal against decision issuing an anti-suit injunction in relation to foreign proceedings - Where foreign proceedings involve similar factual dispute - Where complete relief available in the local proceedings - Whether evidence of additional cost or inconvenience required to establish that co-existence of proceedings is vexatious or oppressive - Whether vexatious or oppressive to continue foreign proceedings - Whether legitimate juridical advantage in continuing foreign proceedings - Whether abuse of court process to continue foreign proceedings - Appeal dismissed - CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345.

PRACTICE AND PROCEDURE - Application to adduce fresh evidence in an appeal - Application refused - Apostolidis v Kalenik [2011] VSCA 307.

COSTS - Appeal - Where appeal on the merits fails - Leave required to appeal against cost orders - Special costs orders - Where a proceeding is commenced or continued for some ulterior motive or in wilful disregard of the facts or clearly established law - Presumption where case hopeless - Where allegations of fraud made which are baseless - Where breaches of overarching obligations under the Civil Procedure Act 2010 - Leave refused.

1 On 1 October 2007 Sunland Water Front (BVI) Limited ('Sunland')[1] made an agreement with Dubai Water Front LLC ('DWF'), a government-owned land owner in Dubai, United Arab Emirates ('UAE'), to buy land in Dubai ('plot D17') for the equivalent of approximately AUD $63 million (AED 192,846,000). On that same day, Sunland paid approximately AUD $14 million (AED 44,105,780) as a 'consultancy fee' to Hanley Investments Pte Ltd ('Hanley').[2]

2 With Sunland's agreement, Hanley received the fee in place of Prudentia Investments Pty Ltd ('Prudentia'),[3] Hanley's parent company. It is sufficiently clear that that arrangement was made purely for internal 'structuring' (ie taxation) reasons within the Prudentia group; otherwise the fee would have been paid to Prudentia.[4]

3 But the reason why Sunland agreed to pay that fee at all (first to Prudentia, then to Hanley) lies at the heart of this appeal, as it did at trial.

4 At trial, Sunland contended that it was induced by misleading and deceptive conduct on the part of Prudentia and its then managing director, Angus Reed, [5] and on the part of Matthew Joyce,[6] the then managing director of the DWF, to believe that it was necessary to pay the fee to Prudentia in order to acquire the land from DWF. It was common ground that, as Sunland knew, Prudentia neither owned plot D17 nor had entered a sale and purchase agreement to buy it.

5 Sunland alleged that the misleading and deceptive conduct consisted of Prudentia (or Reed) and Joyce representing to it that: (1) Prudentia (or Reed) had a 'right to acquire' the land from DWF; (2) DWF could not sell the land to Sunland without Prudentia's (or Reed's) consent, and; (3) Sunland would need to reach agreement with Prudentia (or Reed) if it wanted to buy the land or acquire any rights to develop it. Sunland claimed that, induced by that belief, it agreed to pay Prudentia (ultimately, Hanley) the fee, calculated by reference to the price of the land from DWF, in order to assume Prudentia's 'right' to negotiate the purchase of the land from DWF.

6 Sunland further alleged that each of those representations was false because Prudentia did not have any existing right to acquire the land, DWF could sell the land to Sunland without Prudentia's consent, and it was not necessary for Sunland to reach any agreement with Prudentia before buying the land from DWF.

7 It claimed damages of approximately AUD $14 million upon causes of action under s 82 of the Trade Practices Act 1974 (Cth) ('TPA'), and Victorian statutory equivalents, as well as damages for loss of commercial reputation. Based essentially upon the same facts, Sunland also made a claim for damages upon the common law tort of deceit. Relief was claimed against Prudentia, Reed and Joyce.

8 The trial judge only heard evidence from witnesses called by Sunland; none of Prudentia, Reed or Joyce called witnesses. His Honour dismissed each of Sunland's claims, rejecting every constituent element of the various causes of action.

9 First, his Honour held that Sunland failed to prove the representations which it pleaded.[7] Debate on this element exposed an issue that permeated much of the proceeding, namely the sense in which the expression 'right to acquire', found in the first pleaded representation, was to be understood on Sunland's case.

10 Secondly, his Honour held that Sunland had failed to prove the falsity of the representations, primarily because Sunland was unable to articulate or explain what it meant by 'right to acquire' in the first of its three alleged representations.[8] The judge was not satisfied that the first alleged representation was false if the word 'right' was taken to mean something less than an enforceable legal right.[9] However, ultimately, his Honour concluded that Sunland's pleaded case did require it to establish a representation with respect to an enforceable legal right (proprietary or contractual) to the land.[10] As it was not contended by any party that Prudentia ever held such a right, his Honour's analysis turned to the next issue, namely that of reliance.

11 Thirdly, on that issue of reliance, his Honour concluded that the fee was not paid by Sunland in the belief it would thereby acquire any legally enforceable right (proprietary or contractual), or for that matter any other 'right', in respect of plot D17.[11] Rather, his Honour held that Sunland, a land developer, paid the fee for commercial reasons to secure Prudentia's non-competition for the site, motivated by the prospect that it would make a very substantial return by developing the land.[12] For these reasons, his Honour found that, when entering the agreement to pay the fee, first to Prudentia then to Hanley, Sunland did not rely on any representation contended for by Sunland, whether pleaded or otherwise.[13]

12 Finally, on the question of loss and damage, the trial judge found that Sunland failed to prove it suffered any loss and damage even if it could prove that it had been induced by the statutory misconduct to enter the Hanley agreement, and pay the fee. That was so whether Sunland's hypothesis was that, but for the representations, it would not have purchased plot D17 at all (the 'no transaction case'), or that it would have purchased plot D17, alone or in a joint venture, but without paying Hanley the fee (the 'transaction case').[14]

13 On the hypothesised no transaction case, the judge found that Sunland failed to establish that it suffered any loss when one took into account the benefits it actually derived from having purchased the land, in the absence of any evidence of its ultimate net financial position.[15] On the other hand, on the hypothesis that it would have negotiated for and purchased plot D17 in any event, his Honour found that Sunland failed to establish the likelihood that DWF would have sold the land to it, rather than Prudentia, leaving the more probable inference that Sunland would have had to acquire Prudentia's rights under a sale and purchase agreement (and, presumably, pay a sum equivalent to the fee).[16]

14 Primarily (but not solely) for the reason that he did not find that Prudentia, Reed or Joyce had made any false representation to Sunland, his Honour also dismissed the claim brought in deceit.[17]

15 In addition to and in the course of making his findings on the principal elements of the various causes of action, his Honour made other adverse findings against Sunland. He made adverse findings on the application of the rules in Jones v Dunkel[18] and Browne v Dunn[19] to aspects of the evidence. He made adverse findings as to the credit of Sunland's two principal witnesses, namely its design director, David Brown, and its then managing director of its Dubai branch, Soheil Abedian. And, finally, he made adverse findings on the question whether s 52 of the TPA (and its state equivalents) invoked the Court's extra territorial jurisdiction.

16 In a separate judgment, the trial judge gave reasons[20] for granting an anti-suit injunction preventing Sunland Group from pursuing substantially similar claims against Prudentia, Reed and Joyce in Dubai. Our reasons in respect of the appeal from that judgment are set out at para [419] below.

17 In a further judgment, the trial judge gave reasons[21] for the making of a special costs order against Sunland to pay the defendants' costs on an indemnity basis. Our reasons in respect of the appeal of those orders are set out at para [530] below.

18 Sunland's appeal was comprehensive, challenging all of the above findings. Its Amended Notice of Appeal, dated 10 April 2013, concerning the trial judge's judgment on the substantive claim, contained no less than 67 enumerated grounds, with many sub-grounds. We will not set them out, but will endeavour to summarise and categorise the complaints.

19 The first broad head of complaint was that the trial judge did not properly consider the case theory that Sunland advanced in its pleadings and at trial.[22] One way that argument was put was that the trial judge wrongly confined Sunland's case concerning the first alleged representation to one involving only a legally enforceable right to acquire land. Another was that the trial judge failed to properly consider Sunland's allegation of joint purpose between Prudentia and Joyce, and certain evidence said to be germane to that allegation. Another, was a rolled-up complaint that his Honour failed to discuss or resolve a number of 'substantial and serious' disputed issues between the parties.

20 The second broad head of complaint was that the trial judge failed, on a variety of grounds, to properly evaluate the evidence concerning the representations themselves, that is whether the representations were in fact made and whether, if made, they were false.[23]

21 The third broad head of complaint was that the trial judge made erroneous findings, not supported by the evidence, on the question of Sunland's reliance upon the alleged false representations when agreeing to pay the fee.[24]

22 The fourth broad head of complaint was that the trial judge wrongly held that Sunland had failed to prove that it had suffered loss and damage (assuming the statutory misconduct or deceit claims were otherwise made out).[25]

23 Apart from those broad heads of complaint, there were other alleged errors raised by Sunland's notice of appeal. Those 'other alleged errors' may be summarised as follows:

(a) wrongly making adverse findings on the credit of Brown and Abedian;[26]

(b) failing to correctly apply the principles of Jones v Dunkel in circumstances where the respondents failed to call any witness at trial;[27]

(c) failing to correctly apply the principles of Browne v Dunn in circumstances where the respondents allegedly failed to put their versions of events to the appellant's witnesses;[28]

(d) wrongly concluding that the extra-territorial provisions of the TPA and the Fair Trading Act 1999 (Vic) ('FTA') were not enlivened on the facts of the case.[29]

24 Based upon this summary of the complaints made on appeal, we will address ourselves to the following questions:

(d) Did Sunland rely upon any false representation when paying the fee to Hanley?

(e) If so, did Sunland suffer any loss and damage in reliance upon a false representation made to it?

(f) Did the trial judge make any of the 'other alleged errors'?

25 Before turning to each of those questions in turn, we will set out in some further detail the landmark background facts.

26 For ease of reference, we have set out in a schedule to these reasons a table containing the names of the persons to whom we will refer, the interest they each represented, and the capacity in which they represented that interest.

27 Reed was the managing director of Prudentia in 2007. Joyce was the managing director of DWF. Both men were Australian. They had attended the same secondary school in Victoria, at around the same time, and had at least some prior knowledge of one another before the transaction the subject of these proceedings.

28 DWF was a Dubai government owned company responsible for the master development of a very large greenfield development, known as Dubai Waterfront, intended to become a new business and residential district for the city of Dubai. The Dubai Waterfront development was one of a number of projects undertaken by the Dubai Government. Each development project had its own master developer, established by an overarching government entity, Nakheel PJSC ('Nakheel'). DWF was Nakheel's appointed master developer for the waterfront development.

29 Prudentia was an Australian company. Its business involved land investments in Australia and internationally. In 2007 it had some form of association with a fund in the United States of America, Och-Ziff. The evidence suggested that, by some means, Prudentia sought to partner Och-Ziff in land investments in a number of countries.

30 Sunland Water Front (BVI) Limited was a company incorporated in the British Virgin Islands although, ultimately, it was a wholly owned subsidiary of a public company listed on the Australian Stock Exchange, Sunland Group Ltd. Sunland Group was a plaintiff below and is the second appellant in this appeal and the appellant in the anti-suit appeal (see para [419] below). Sunland Water Front (BVI) was the company that entered the relevant agreements and paid the fee. But until its introduction to the transaction around mid-September 2007, all relevant dealings with the Prudentia and DWF interests were undertaken by Brown and Abedian as officers for Sunland Group. No point is taken about any distinction between Sunland Group and its subsidiary Sunland Water Front BVI in the events that occurred, and (unless indicated otherwise) in these reasons 'Sunland' is a reference to the relevant Sunland party or parties, as appropriate. The abbreviation 'SWB' is used where it is necessary to refer to Sunland Water Front BVI distinctly.

31 Sunland was a designer and builder. Its core business was residential development, both house projects and high rise projects, including hotels. Abedian, an architect by training, had commenced building luxury houses in Australia under the 'Sunland' name in 1983. Brown, also an architect, joined Sunland in 2000 after 22 years in the industry. By late 2006 both Abedian and Brown had moved to a Sunland office which had been established in Dubai where Sunland was involved in two major projects, the Palazzo Versace Dubai (a hotel) and D 1 Tower. In early 2007, Sunland had also agreed to purchase a beachfront plot at Dubai waterfront, plot D5B. Sunland was interested in purchasing still more land in the Dubai waterfront precinct, if it was available, and had said so to officers at DWF.

32 Meanwhile, on 14 August 2007, Mr Anthony Brearley, in house counsel at DWF, provided Prudentia's Dubai lawyers with a copy of a draft sale and purchase agreement (SPA) for plot D17. The authenticity of a document that may have preceded the sending of that draft contract was hotly contested at trial, and on appeal. The disputed document was a letter dated 10 August 2007, purportedly written to Reed by Jeff Austin, DWF's town planning director, on Nakheel letterhead. The letter recorded Reed's attendance at DWF's office, and confirmed preliminary development and planning approval for a proposed subdivision for plot D17 by Prudentia.

33 Sunland alleged the letter was a forgery, on a number of bases. Its significance, if genuine, lay in its potential to stand as contemporaneous evidence, as at the date it bore, that Prudentia enjoyed a negotiated position with respect to the land in precedence to other suitors. But, if a forgery, Sunland contended that it supported the existence of a clandestine scheme between Reed and Joyce to mislead Sunland and extract a payment from it.

34 On 15 August 2007, Mr Jeff Austin had a discussion with Sunland's Mr David Brown about plot D17. Austin told Brown that a reconfiguration of DWF's site plan meant that a new plot, D17, would be created adjacent to plot D5B. Although plot D17 did not have absolute beachfront, the reconfiguration of the site plan would give it uninterrupted access to the beach. Austin gave Brown the name of 'Andrew Angus Reed' who was said to have had a 'hold on the plot'. Brown did not ask Austin what that meant.

35 That same day Brown telephoned Joyce about the plot. Brown had not had many discussions with Joyce since June 2007 because there had been something of a 'falling out' with Joyce. Their 'falling out' occurred in connection with a prospective joint venture between DWF and Sunland in respect of another plot, plot A10C. Joyce had complained to Brown that Sunland, to use Brown's words, had 'betrayed their [DWF's] confidences'. Brown, for his part, believed there had been a misunderstanding. The relevance of this background event lies in one explanation advanced on behalf of Joyce at trial for Joyce's desire to have Sunland deal with Prudentia, in relation to plot D17, rather than deal directly with DWF.[31]

36 Brown's evidence of his conversation with Joyce on 15 August 2007 was that, at a minimum, Joyce told him that Reed was the 'contact' for plot D17. Whether Joyce said more than that to Brown about Prudentia's or Reed's relationship to the land was a matter of dispute and is discussed in greater detail below.

37 But it is not in dispute that Brown knew that Prudentia had not signed SPA in respect of plot D17 and that it had not paid a deposit. At the time of this conversation, plot D17 did not exist; it was being created from a series of other plots and was subject to final planning approval, although a planning template disclosing BUA (built up area), FAR (floor area ratio) and total land area had been prepared.

38 The next day, 16 August 2007, Brown telephoned Reed about plot D17. Reed was in Australia preparing to travel to Dubai. Reed had not met or ever talked to Brown prior to Brown's call. Brown asked Reed if he was interested in a joint venture with Sunland to acquire and develop plot D17. Reed said that he was.

39 The precise content of the two conversations Brown had, first with Joyce, and then with Reed, on 15 and 16 August 2007, was in dispute at trial. They are each examined in further detail below.[32] But, in short, Sunland relied on each of them for the proposition that first Joyce, and then Reed, represented to it that Prudentia enjoyed some form of right in respect of or control over plot D17.

40 Brown then exchanged emails with Joyce after his (Brown's) telephone conversation with Reed. Brown wrote to Joyce saying, 'We have spoken to the gentleman in Australia [ie Reed], and have a tentative meeting with him on Sunday. It was a very positive discussion.' Joyce replied and said, 'Good luck, thanks. I thought they were based here? Anyway the issue for us is that you can come to an arrangement with them that allows you to deal directly with us.' (our emphasis). As will be seen, Sunland placed significant reliance on the emphasised sentence from this email from Joyce in seeking to make out the second and third pleaded representations. [33]

41 Sunland and Prudentia thereafter engaged in negotiations concerning plot D17 during the latter half of August and throughout September 2007, and did so initially in pursuit of terms of the joint venture between Prudentia and Sunland as first proposed by Brown to Reed.

42 From very early on there were discussions between Brown and Reed about payment of a 'premium' to be made by Sunland to Prudentia under the terms of any joint venture arrangement. There appeared to be little if any resistance from Sunland to that notion. It was apparent from the contemplated terms of the joint venture, embodied in drafts of an agreement we come to shortly, that the concept of a 'premium' in this context was an uplift on the price of the land to be reimbursed to Prudentia for it having paid for the land and provided it to the joint venture. That reimbursement (incorporating the 'premium') was to be made at the conclusion of the joint venture development, then thought to be some six years into the future, after third party debt had been repaid but before distribution of profits to the joint venturers.

43 Although Reed did not accept the terms for a joint venture based upon the initial model proposed by Sunland, nevertheless, in emails he sent to Brown on 20 August 2007, he said his preferred approach was to acquire and develop plot D17 in a joint venture with Sunland, provided there were equitable financial contributions.

44 By 23 August 2007 a draft implementation agreement (MOU) had been prepared to progress the parties' negotiation of headline joint venture terms. Sunland sought to make much of the fact that in the draft MOU prepared by Prudentia, and subsequent iterations of it, there appeared a recital under the heading 'Background', stating that 'Prudentia has reached agreement with [DWF] to acquire and develop [plot D17]'.

45 In any event, the parties did not ultimately enter into a joint venture agreement. But before coming to the point of departure from that concept, a further conversation allegedly took place between Joyce and Brown upon which Sunland placed great reliance in its case against Joyce. Sunland claimed that on 29 August 2007, Joyce told Brown that Sunland should come to an agreement with Reed as soon as possible because there were other buyers around who might offer Reed a significantly higher sum of money than the sum upon which the premium, priced into the joint venture, had been calculated. By his pleading, Joyce denied the conversation.

46 Sunland's pleaded case was that, by reason of the statements that had been made in documents and discussions up to and including 29 August 2007, Joyce and Reed made the three representations to Sunland set out at [5] above.

47 Soon after 12 September 2007 the parties moved from discussing a joint venture arrangement to a different arrangement.

48 On 12 September 2007, Brown emailed Reed after he had received a call from Brearley and Marcus Lee (both at DWF). Brown told Reed, amongst other things, that Brearley and Lee were concerned that DWF's marketing people were likely to try to sell the plot and that they, Brearley and Lee, would have no control over the marketing people should they do so. According to Brown's report of the conversation, Brearley and Lee suggested that 'we immediately "put our foot on the Plot" to secure it'. To do so, Brown recommended to Reed, 'we need to sign a Sale and Purchase Agreement', and he set out some proposed terms. He further recommended that, in the first instance, Sunland should negotiate with DWF and purchase plot D17 using a Sunland subsidiary as purchaser then, later, transfer the land to a new company (presumably to be jointly owned by the parties). This email came to be known at trial, and on appeal, as the 'put your foot on it' email.

49 Reed responded to Brown by email the following day telling Brown to 'go for it'.

50 The revised structure of the transaction, prompted by the expressed need for urgency, resulted in a flurry of revisions to the then proposed MOU. Out of this process emerged a completely different proposition.

51 On 16 September 2007, at Abedian's suggestion, Brown telephoned Reed, said 'this is all getting too hard', and proposed that Sunland simply pay Prudentia AED 20 million for Prudentia to 'walk away' to allow Sunland to buy the land in its own right. Prudentia was amenable to that proposal. Thereafter the negotiation turned to finalising an arrangement of the kind proposed by Brown. Because, at the same time, it became possible for Sunland to obtain an even more favourable price for the land than the price that had been previously discussed (at AED 120/sqft rather than AED 135/sqft), and it was also to obtain some bonus land, Sunland agreed to pay Prudentia an additional fee of AED 24 million, taking the total fee to AED 44 million.

52 After several drafts and re-drafts of its terms, on 19 September 2007 Sunland and Prudentia executed an agreement. On 26 September 2007, Prudentia's solicitor requested that, for structuring purposes, Sunland discharge the agreement with Prudentia and execute a materially identical agreement with Hanley. Later that same day, Sunland and Hanley executed their agreement. A central provision of the agreement (clause 2) was in these terms:

In consideration of payment of the Consultancy Fee [AED 44,105,780], 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 [DWF].

53 Sunland alleged that it was induced by the pleaded representations, first to negotiate the proposed joint venture with Prudentia then, secondly, to enter the Hanley agreement, buy plot D17 from DWF, and pay the consultancy fee. However, as will be seen, the different nature of the joint venture concept and the 'premium' as contemplated pursuant to that arrangement, on the one hand, and, on the other, the Hanley agreement and the 'consultancy fee' payable under it, assumed importance in submissions at trial, and in the trial judge's conclusions, on the question of reliance (ie causation).

54 SWB settled its purchase of plot D17 from DWF on 1 October 2007, the same day it provided Hanley with a cheque for AED 44,105,780, being the fee payable under its agreement with Hanley.

55 Certain events occurring after 1 October 2007 arguably had some bearing on the findings to be made about the events that preceded that date. We will describe those events now.

56 There was a body of evidence, referred to as the 'money trail' or 'money flow' evidence, which concerned the distribution of the AED 44 million after it was paid to Hanley, and some other evidence which might explain that distribution. We will briefly explain the nature of that evidence, but will need to return to it when we discuss the first question, viz 'What was Sunland's case at trial?'.

57 Documents were in evidence before the trial judge suggesting that one half of the Hanley fee (ie approximately AUD $7 million) was ultimately paid for the benefit of Joyce. Sunland wished to use that evidence as a basis from which to infer the existence of a covert arrangement between Reed and Joyce, made before negotiations with Sunland even commenced, that Joyce would be paid by Prudentia for deals he introduced or assisted with.

58 If that were so, Sunland contended, such a payment was relevant to the issues that had to be decided by the court. For a start, it argued that such a payment would be relevant to the cause of action in deceit. In particular, it would be relevant to the pleaded allegation that Joyce and Reed had the joint purpose of inducing Sunland to enter an agreement with Prudentia in relation to plot D17. Additionally, Sunland contended, such evidence was relevant to establishing an intention on the part of Joyce that Sunland should rely upon the representations he made, which intention could assist Sunland prove that it did in fact so rely. That is, it was also relevant to Sunland's case on misleading and deceptive conduct. [34]

59 Fourteen months after the transaction settled, on 1 December 2008, Brown was asked to attend an interview with prosecutors in Dubai concerning Sunland's purchase of plot D17. He spoke to Mohammed Mustafa Hussein Mohammed Kamel ('Mustafa'), the director of the Financial Audit Department of the Emirate of Dubai. That commenced an investigation which, so far as Sunland was concerned, lasted well into 2009. The investigation of Sunland was, for a time, of serious concern. The investigators told Brown that the investigation was a criminal investigation into bribery and that, in their opinion, the transaction Sunland had entered into regarding plot D17 was a bribe. Brown's passport was taken by the authorities in January 2009 and not returned to him until 21 July 2009.

60 As a result of that investigation, Brown (and Abedian) made statements to the Dubai authorities, corresponded with them, and made notes and reports internally for Sunland and its lawyers. Those documents were in evidence.

61 Brown's accounts of the plot D17 transaction and of his dealings with Reed and Joyce (and other DWF officers), given both to the prosecutors and to Sunland provided a substantial body of evidence against which to test the account he gave to the trial judge; likewise for Abedian.

62 As a consequence of the investigation by the authorities Joyce, was charged with bribery and was, for a time, imprisoned, and then later held under house arrest in Dubai awaiting trial.[35] One of the submissions the respondent parties have made in this case, at trial and on appeal, was that Brown tailored his account to the authorities of what occurred in the transaction to protect his and Sunland's interests. That submission has been repeated on appeal as a means of supporting the trial judge's conclusions on the credit of Brown and Abedian as witnesses.

63 The investigation, and the various accounts given by Brown and Abedian in the course of it, featured in the trial judge's conclusions on the credit of Brown and Abedian, and in his findings generally. We consider it useful to set out the course of the investigation in further detail.

64 On 21 January 2009 Brown was interviewed for about seven hours at police headquarters. He was locked in, and his mobile phone was taken away. Brown was allowed to leave after signing a statement written in Arabic and surrendering his passport and entering into a bail bond. He was told the transaction was 'unlegal' as Reed did not own the site. Brown wrote a statement the following day describing Reed as saying that 'he had a plot at Waterfront' and, through discussions with Nakheel, Sunland understood 'that [Sunland] had to have an arrangement with Angus Reed to be able to develop the plot together.'

65 On 26 January 2009 a search warrant was issued pursuant to an authorisation by the Dubai authorities. Brown was present at the search and had a discussion with Mustafa and another man. He was again told that the authorities considered the transaction illegal as Reed did not own the site, that Brown was lucky to be out and that Lee and Joyce were 'frozen' which Brown assumed to mean under arrest or having their passports held also. Brown was told he should try to remember everything and withhold nothing or it would be bad for him. Brown told Mustafa that their 'contacts at Nakheel were Lee, Joyce and Brearley and they backed up Reed's claims in so far as they knew, a group from the US was involved and Reed was the spokesperson for the group.' Brown was asked again who the contacts were in Nakheel that had put Reed in touch with Brown. Brown said that he did not know, but assumed Reed had got their contact details from someone in Nakheel.

66 To this point, no mention had been made of the role of Joyce in introducing Brown to Reed, or that Joyce had asserted that Reed or Prudentia held some right over plot D17.

67 On 1 February 2009 Brown received confirmation that Lee and Joyce had been arrested and on 2 February spoke to a person from the Sunland Board, providing them with a signed statement.

68 Brown provided a document entitled 'Brief to Prosecutors - 15 February 2009' to the Dubai prosecutors. There are some differences between this version and an earlier draft. In particular, the draft version of the document did not make any mention of Joyce and gave no indication of why Reed chose to contact Brown. The final version of the document is amended in that it inserts a new dot point and rewrites the dot point beneath. It states:

• In mid August 2007, Matt Joyce called us and said that we [sic] there was a gentleman who controlled a site behind our D5B, and that this man had a relationship with Lend Lease and Och-Ziff in the States. Matt said we should expect a call and meet with him to discuss the property.
• A few days later, we were telephoned by an Australian, Angus Reed, who told us he represented a Group who controlled a plot at Waterfront. This was corroborated by people at Nakheel. Reed had a company in Melbourne Australia and he flew over to meet with us.

69 Under cross-examination Brown accepted that saying 'Matt said we should expect a call and meet with him to discuss the property' was highly incriminating in relation to Joyce's position, if true, and that it indicated Joyce knew Reed or knew what was going on.

70 On 16 February 2009 Brown was interrogated at the Public Prosecution Headquarters. Brown described occasions where he asked Joyce about any lots adjacent to plot D5B that also overlooked the sea and was told that none were available. Brown said that Joyce introduced him to Reed, that Joyce contacted him and described Reed as having the plot Brown was seeking. Brown denied contacting Joyce initially about obtaining plot D17 because it was adjacent to plot D5B. Brown said that Reed called a few days later and said that he owned a lot and offered an investment in it. Brown said that Reed told him that he had strong relations with Och-Ziff, good relations with Nakheel management, and he could obtain privileges from them for this lot, including a discount on price, which was in fact obtained.

71 Brown stated that they later met and Reed offered plot D17 on the understanding that it was his. Brown said that when Reed showed him the map which Joyce had showed him, he claimed he was owner of the new plot. Brown also said that Reed spoke to him as if he had control and jurisdiction over the plot and acted as if the plot belonged to him. Brown added that Reed offered to renounce the plot in return for payment of consultation fees. Further, Brown said that he told Lee that Sunland wanted to purchase the plot from Prudentia and that Reed offered Brown the plot. He also said that he purchased the plot from Reed.

72 According to Brown, Joyce informed him that he they could not obtain the plot without reaching an understanding with Reed, that Reed needed to renounce the plot, and that Joyce repeatedly said that the plot belonged to Reed. Brown said that Lee encouraged him to get the plot from Reed. He also said that he felt Joyce and Lee were helping Reed to finalise the sale of the plot to Brown and were pushing him to purchase or obtain the plot from Reed.

73 Brown added that it would amount to fraud against him if the land did not belong to Reed or was not reserved in his name.

74 Brown was advised on 29 April 2009 that he was only to be a witness in the case. However, his passport was not returned, although he was told that it would soon be released. He was also told that without his cooperation the prosecutors would not have been able to prove the charges against Joyce.

75 It is clear from at least this stage onwards that Sunland was keeping the Dubai authorities informed and continuing to cooperate with them while simultaneously considering civil action in Australia.

76 Brown met with the prosecutor again, on his own instigation, on 17 May 2009. The prosecutor revisited the issue of why Sunland paid the money when Reed did not have rights to plot D17. At that meeting Brown sought an update on the investigation against Joyce and Lee and was told the prosecutor's job was to deliver a conviction. Brown offered to assist in any way possible. Brown also told the prosecutor that Sunland was considering commencing legal proceedings in Australia and they wanted to check it was supported. He was told that it was supported, that it was recommended they start as soon as possible and that the prosecution would appreciate a copy of documents involved in the case. Brown was unable to obtain any certainty about when his passport would be returned and was told he might have it returned in two weeks.

77 On 18 May Brown sent an email to Soheil Abedian and Sahba Abedian (Soheil's son, and at that time Sunland's managing director) about the meeting, copying it also to Sunland's lawyer, Ron Eames at DLA Phillips Fox. Brown suggested that Sunland prepare a report that could be given to the prosecutor covering their strategy for starting civil proceedings in Australia against Reed and Brearley.

78 Brown's story, as it had evolved to that point, is more or less reflected in the DLA briefing paper, written by Eames, provided to the prosecutor on 31 May 2009. That paper, which Brown participated in creating, states, inter alia: that Joyce offered to introduce Sunland to Reed; that Joyce said Reed had the right to purchase D17; and, 'Joyce advised Sunland that it had to come to an arrangement with Prudentia before Dubai Waterfront would enter into a Sales and Purchase Agreement with Sunland.' It also said that Joyce confirmed Prudentia 'controlled' plot D17.

79 The paper said that Reed made a representation that he had development rights over plot D17. It says that 'Sunland was lead [sic] to believe and it is the case that if Prudentia truly held the development rights for plot D17 then it would not have been possible for Sunland to purchase it without first coming to an agreement with Prudentia to acquire the development rights from it.' It also says that '[a]fter making the payment Sunland discovered that Prudentia did not have a reservation contract or any rights in relation to plot D17' and that Reed's statements were false as 'Prudentia did not have any enforceable rights under UAE law in relation to plot D17' (our emphasis).

80 When the paper was given to the prosecutor at a meeting on 31 May 2009, he asked for a translation as soon as possible. At that meeting the possibility of issuing proceedings in Dubai was also discussed as well as a status update as to the prosecutor's case. Another request was made for Brown's passport, on the basis that he would need to travel to Australia regarding Sunland's case. The prosecutor was recorded as respecting this need and saying it could be returned in a week or so. It was noted that the meeting was very positive, the prosecutor was keen to finalise the case and that Sunland's co-operation would play a key role in supporting the proceedings.

81 Thus, across time, Brown's version of the events in 2007 changed. At first it was that Reed merely held himself out to have development rights or a right to develop or acquire through Och-Ziff. It later evolved to Reed having said and acted as if the plot belonged to him and that Brown was under the impression that the land belonged to Reed or was reserved in his name or that Reed had some enforceable right under UAE law.

82 Brown's version of events also changed so that the corroboration provided from Nakheel about Reed's rights became more concrete. In addition, Joyce became more involved, ultimately being the one to introduce Reed to Brown and to confirm that Brown needed to come to an arrangement with Reed to obtain plot D17 and even confirming that Reed owned plot D17.

83 Much of this story was ultimately not Brown's evidence before the Court. When cross-examined about the differences between the version of events in evidence before the court and that which was told to the Dubai prosecutors, Brown responded that it was his recollection at the time and he did not intend to mislead. He said he had access to his diary at the time. He also commented that some of the translations were wrong, although he made no attempt to correct them or the facts conveyed in them until July 2010. Brown generally denied that the visit to the prosecutor on 17 May 2009 was a tactic and that the giving of the report on 31 May was a lever to assist his own position and to obtain his passport. He claimed that the report was not prepared solely for the benefit of the prosecutor but rather that was only one of its purposes.

84 Sunland sent letters of demand to Brearley, Reed and Prudentia on 4 June 2009. Joyce was charged on 16 July 2009. Brown's passport was returned on 21 July 2009. Sunland issued an ASX and Media Release stating that the Dubai authorities has finished their investigations, Brown had his passport returned and Sunland was investigating civil remedies. It also said Brown was a witness in the Dubai investigations and was never investigated or detained.[36] This was followed by a 17.2% increase in the second appellant's share price. The Australian proceedings were issued on 10 August 2009.

What was Sunland's case at trial? [37]

85 We return to the first issue which arises on the appeal, namely Sunland's complaint that the trial judge did not properly consider its case theory as advanced in its pleadings and at trial. It has several components as we have set out above.[38]

86 We first consider the issue of whether the trial judge wrongly confined Sunland's representation case to one requiring it to establish that Reed or Prudentia had held themselves out as having a legally enforceable right to acquire plot D17.

87 It is correct to say that His Honour ultimately concluded that the case Sunland set out to prove was one involving a representation concerning a legally enforceable right to acquire the land:

...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.[39]

88 Nevertheless, his Honour did address arguments based upon a case involving a representation concerning a lesser 'right', although, for reasons which we will explain we do not think it was strictly necessary to do so. The question is, what was the case his Honour was bound to consider.

89 After alleging the identity and characteristics of the relevant parties to the proceeding in its Second Further Amended Statement of Claim ('SFASOC'), Sunland pleaded a series of oral and written statements made to Brown by officers of DWF and by Reed, first between 15 August 2007 and 29 August 2007,[40] and then between 12 September 2007 and 26 September 2007.[41] As we have already mentioned, the statements made up to and including 29 August 2007 were said to found the three critical representations upon which Sunland alleged it relied in various respects. The representations were alleged in these terms (with our emphasis):

1. The premises pleaded above amounted to representations ('the Representations') made by Joyce (namely paragraphs 9, 12, 14 and 18) and also made by Reed (namely paragraphs 13, 15, 16 and 17) that:

19.1 Reed or Prudentia or both of them had a right to acquire Plot D17 or the land on which Plot D 17 was located;

19.2 Dubai Waterfront could not, without the agreement of Reed or Prudentia or both of them, sell Plot D 17 or the land on which Plot D 17 was located, or any rights in connection with the development thereof, to Sunland; and

19.3 If Sunland wishes to purchase Plot D17 or the land on which Plot D17 was located, or acquire any rights in connection with the development of Plot D17 it had to negotiate and make a contract with Reed or Prudentia or both of them. [42]

90 As we show below, the evidence led by Sunland in support of the 'premises' referred to in the opening words of para [19] demonstrated that the only 'right' in respect of plot D17 that Reed or Prudentia held themselves out has having, was a preferred right to negotiate for its purchase. It was a commercial position, not a legally enforceable right to acquire.

91 Whether or not it was true that Reed or Prudentia did enjoy such a commercial position with respect to the land is one thing. Another is whether Sunland's case concerning the representations that were made to it, and upon which it relied, extended to a representation that Reed or Prudentia enjoyed a position of that kind. For it is only if it did that the trial judge was called upon to consider the truth or otherwise of such a representation, or the question whether Sunland relied upon such a representation, in entering the Hanley agreement and paying the fee.

92 On this issue, the respondents' primary arguments on appeal were that Sunland's case at trial was confined to Joyce and Reed having held Prudentia out as having a legally enforceable right to acquire the land, that is, not merely a commercial bargaining position.

93 Thus the question arises: what was the nature of the right that Sunland alleged was the subject of the representation made to it? We address that question upon the pleadings and upon the arguments put at trial.

94 A valuable collection of the principles concerning the significance of pleadings in a case where a dispute arises about the nature of the case being put forward, is to be found in the judgment of Austin J in ASIC v Rich.[43] There his Honour recites a number of propositions, including that:

• a properly pleaded statement of claim ensures the basic requirement of procedural fairness that the opposite party has the opportunity of meeting the case against him or her, defines the issues for decision, and enables the court to ascertain the facts forming the ingredients of the cause of action;[44]
• particulars define the scope of evidence to be lead in support of the material facts alleged;[45]
• permission to depart from the pleadings is a matter for the discretion of the trial judge, having regard to the interests of justice;[46]
• when litigation is large and complex, with serious consequences for the defendants if the plaintiff succeeds, and the parties are required to incur very substantial costs, the imperative to hold the plaintiff to its pleaded case is strengthened.[47]

95 In our view, it is fair to say this litigation was large and complex: on appeal there were 13 volumes of appeal book, and his Honour's reasons in his primary judgment ran to 295 pages. Millions of dollars were claimed in damages, and there were other potential serious consequences at stake for Joyce, in particular, with the Dubai criminal proceedings, involving the same matrix of facts, hanging over his head. Doubtless the parties have been required to incur very substantial costs.

96 These principles remind us why pleadings are important. So what did Sunland plead?

97 Nowhere in the paragraphs alleging the statements and conduct from which the representation was concluded does Sunland allege that Joyce or Reed ever used the particular expression 'right to acquire'. Nor, as our analysis of the evidence will show, did Sunland prove that those words were used before 29 August 2007. So the words used in the formulation of the critical representation must be words intended to capture the sense of what Sunland contends was actually said, albeit using different words. What is in issue is therefore an interpretation or imputation to be derived from the use of other words. In order to assess whether the phrase 'right to acquire' is a fair description or summary of what was conveyed by the use of different words, it is critical to be precise about what Sunland meant by 'right to acquire'.

98 One of the criticisms the trial judge made of Sunland's case - fairly in our view - was its inability to identify what it meant by its own pleading. His Honour described Sunland as having 'floundered in describing the basis of its case'.[48]

99 In our view, Sunland's pleadings, taken as a whole, show that Sunland set out to establish a representation as to a legally enforceable right to acquire the land.

100 It first should be observed that in formulating the first representation Sunland chose to use the expression 'right to acquire'. Sunland might have chosen 'opportunity', or 'valuable prospect', or some other description of a chance to acquire unambiguously falling short of a legally enforceable right. But it chose 'right'. Other than a moral right, the use of the word 'right' generally connotes legal enforceability. That is what is distinctive about a 'right' compared with other notions of expectations or entitlement. Particularly is that so when the word is used in conjunction with the acquisition of land in a commercial setting. The further prohibitive and imperative phrases in paras [19.2] and [19.3] of the SFASOC (emphasised above), in conjunction with the use of the phrase 'right to acquire', reinforce the idea of legal enforceability.

101 The second indication from the pleading that it carries the notion that Reed or Prudentia held themselves out to have a legally enforceable right to acquire the land, is the particulars given of the falsity of the alleged representations. Paragraphs [21.4], [21.5] and [21.6], containing those particulars, are collectively directed to there being no record of Prudentia possessing some form of ownership of the land. Those particulars allege as follows (with our emphasis):

Particulars of bases for asserting the Representations to be false

21.4 On 1 December 2008 Brown met with the director of the Financial Audit Department (an organ of the Emirate of Dubai), Mohammed Mustafa Hussein Mohammed Kamel ('Mustafa') at the offices of the Ruler's Court and Mustafa said to Brown words to the effect that 'Our 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'.

21.5 On 21 January 2009, Brown was interviewed at Dubai Police Headquarters by Khalifa Mohammad and Khalifa Mohammad said to Brown words to the effect that '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'.

21.6 On 26 January 2009, Mustafa and a number of officials who did not reveal their names attended at Sunland's Dubai office and conducted a search of Sunland's computer system and paper files and during the course of that search, one of the said unnamed officials spoke to Brown and during the course of that conversation said to Brown words to the effect that 'the transaction was illegal because Reed did not own the site'.

102 So, on Sunland's case, the fact that neither Reed nor Prudentia owned the site falsified the representation that they or one of them had a 'right to acquire' it. These particulars strongly support the view that Sunland was alleging that Reed or Prudentia held themselves out to have a legally enforceable right to the land, tantamount to ownership.

103 On appeal Sunland submitted that the particulars should be construed as only demonstrating the falsity of the second and third representation, and not the first. We do not see why that is so. If that is so, there were no particulars to demonstrate the falsity of the first representation. The heading to the particulars refers to 'the Representations' without distinction. Additionally, as we will come back to shortly, the better view is that all three representations formed a coherent set of cumulative propositions that stood or fell together.

104 The third sign from the pleadings which helps interpret the meaning of the critical phrase in the first representation is to be found in the later pleadings of Prudentia, and Sunland's reply to them.

105 In answer to the allegation that the first representation was false because neither Reed nor Prudentia had a right to acquire the land, Reed and Prudentia admitted that at no material time did they hold 'an enforceable right in the nature of a conveyance or option or other legal interest in plot D17'.[49] But, they said, 'at all material times ... Prudentia's interest in plot D17 was as a preferred negotiator with Dubai Waterfront for the right to purchase and develop plot D17'.[50] By their particulars of that assertion, Reed and Prudentia went further to explain their position, saying

'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'.[51]

106 In reply, Sunland denied Reed's and Prudentia's allegation that Prudentia had the interest of a preferred negotiator and re-asserted its contention that Joyce and Reed 'had made the representations pleaded in paragraph 19'. Furthermore, in written submissions at trial, Sunland argued that Prudentia's plea that it had an interest as preferred negotiator, in response to the allegation that the representations were false, was 'not responsive to the allegations of falsity of the pleaded representations'.

107 If all of that is so, it seems that the pleaded representation about Prudentia having a 'right to acquire' the land must mean something which does not include the interest of a preferred negotiator. That inference must follow because, as Sunland would have it, the assertion of such an interest does not prove the existence of the 'right to acquire' (and therefore the truth of the representation). In other words, a preferred right to negotiate does not answer the description of a 'right to acquire', the subject of the first representation.

108 In short, the pleadings alone provide a combination of considerations which support the conclusion that Sunland's case was that Reed or Prudentia misled and deceived it to believe that one or other of them had an enforceable legal right to the land, namely:

• in the context of a land transaction, that is the usual sense in which the expression 'right to acquire' is understood;
• it was an interest of that kind which the particulars of falsity pointed to; and
• Sunland's denial that the existence of a preferred negotiator right (ie a commercial negotiating position) proved the truth of the representation, seemed to exclude the contemplation of something less than a legally enforceable right.

109 In final written submissions at trial Sunland addressed the question of how its pleaded representations were to be understood. It submitted:

Contrary to the submissions of [Joyce], the plaintiffs' case does not require the finding that the representation was to the effect that there existed a formally binding contract entitling Reed or Prudentia to the Plot. However, as will be seen, the representation was that there was an agreement which conferred upon Prudentia a 'right' which was capable of transfer to Sunland.[52]

110 A right which was less than a formally binding contract but yet was capable of transfer plainly connoted some species of legal or equitable right.

111 The argument was further clarified in the oral submissions of Sunland. After submitting that it was not necessary for Sunland to go so far as to establish a representation with respect to a formally binding contract, Sunland's counsel continued:

But in any event as your Honour will see the written representations relied upon do go that far and so we 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 [subparagraph 19.1 of the SFASOC].[53]

112 However, on appeal, Sunland sought to sidestep the position it had advanced at trial. In written submissions on appeal it argued:

A representation by a party that he has "a right" is capable of inducing error without any need for the recipient to consider and form a view (if he is even capable of doing so) as to the legal nature, source and enforceability of that right. A statement that a person has "a right" is capable, objectively considered, of inducing the recipient to believe that he must deal with that person if he wishes to acquire an interest in the subject matter of the alleged right. To suggest that the recipient could only arrive at that conclusion by turning his mind to the source or legal nature of the right and forming a view as to its enforceability, is erroneous.[54]

113 As Joyce pointed out on appeal, Sunland's submission ignores the fact that the evidence did not establish that Joyce ever used the word 'right'. Nor did Reed. Sunland's witnesses struggled to identify what they understood the notion of 'right' meant, bearing in mind it was not a word actually used by the representors. The trial judge listed some of the inexact descriptions given in evidence of what Sunland witnesses perceived the representations meant, including 'some right', 'some control' and 'some sort of contract'.[55]

114 We are not persuaded that it was irrelevant, as Sunland would have it, what was the legal nature, source and enforceability of the right said to be the subject of the representation.

115 One must bear in mind the legal and forensic context in which the issue arises. Sunland alleges certain conduct and asks a court to evaluate that conduct to ascertain whether it was misleading or deceptive. To constitute statutory misconduct, such conduct, in the circumstances, must lead, or be capable of leading, a person into error.[56] Where the conduct is the speaking of words, it is necessary that they be proved - and by necessary implication pleaded - with a degree of precision sufficient to enable the court to be reasonably satisfied they were in fact misleading in the circumstances in which they were uttered.[57] The test for determining whether conduct does contravene the statute is objective, and the court must determine the question for itself.[58] And while an objective test excludes from consideration subjective matters (knowledge, intention) not known to the parties,[59] reasonable inferences, reasonable assumptions and reasonable expectations arising objectively from the circumstances will be in the constructive knowledge of the parties.

116 In view of those principles, and having regard to the business sophistication and experience of Brown and Abedian, experience which specifically included previous transactions with DWF, we reject Sunland's argument that the bald representation of a 'right' in those circumstances could be capable of inducing error without any need for the particular recipient to consider or form a view as to its nature. This may look like a consideration more relevant to whether a proven representation was misleading, or whether reliance was placed upon a particular representation as a matter of fact. We will turn to those issues below. But for now, that same consideration reinforces our conclusion that the trial judge was correct in interpreting Sunland's case in the manner in which he did, and confining Sunland to that case.

117 On appeal Sunland argued that even if its case was confined to the allegation of a representation concerning a legally enforceable right, there is (at least in Australian law) the notion of a legally enforceable right to negotiate. In this regard we were referred to the decision of Coal Cliffe Collieries Pty Ltd v Sijehama Pty Ltd.[60]

118 In that case the New South Wales Court of Appeal held that, provided it is supported by consideration, a promise to negotiate in good faith may, in particular circumstances, be enforceable. The recipient of such an enforceable promise would, presumably, have a corresponding 'right' to negotiate. We put aside the question whether any such 'right' could ever be transferable. But identifying this species of 'right' as a possible right the subject of Sunland's pleaded case only serves to underscore the need for precision in the context of an asserted representation which a party says was capable of inducing error (and thus misleading), was false, and was in fact relied upon.

119 Not only did Sunland fail to identify such a 'right' as the right it was asserting, either in pleadings or in argument below, but it went perilously close to denying that is was a 'right' of that kind it was relying upon. That is, it denied that Reed or Prudentia had a preferred right to negotiate and, in effect, said that any such 'right' was not of the kind it was asserting in its case.

120 In conclusion on this issue, it is our view that the trial judge correctly held that Sunland's case at trial, both on its pleadings and upon its argued case, was founded upon an essential contention that it was misled into believing that Reed or Prudentia held a legally enforceable - and, we would add, transferable - right to acquire plot D17. It was that case, and that case alone, that the trial judge had to determine.

121 The next complaint made by Sunland concerning the judge's alleged failure to deal with the case it put at trial was that the judge failed to deal with each of the representations separately.

122 In particular, Sunland complained that the trial judge failed to adequately consider the second and third pleaded representations, separately from the first. It argued that each of the representations stood alone, and could be made out upon the evidence and considered independently of the others. On the appeal this issue was discussed in terms of whether the representations could be 'disaggregated'.

123 In our view, the logical reading of the pleaded case is that each succeeding representation was to be understood as being cumulative upon the preceding representation. Thus, so read, it was alleged that Reed or Prudentia represented themselves to hold a legally enforceable right to acquire the land; because of that, DWF could not, without their agreement, sell the land to Sunland; and so it followed that if Sunland wished to purchase the land from DWF it would first have to negotiate with Reed or Prudentia.

124 Not only does that understanding flow logically, but it is reinforced by the fact that all the representations are alleged to be derived from the same undifferentiated statements, and by the use of the conjunction 'and' between the second and third pleaded representation. Further, as already stated, the particulars of their falsity are stated collectively rather than individually. Lastly, in terms of reliance, Sunland claims it relied upon 'the Representations' without ever differentiating that it relied upon one rather than another, or in the alternative to another, at any given stage.

125 It followed, in our view, that it was correct to view the three representations as following logically one upon the other, with each founded upon the preceding assertion. Since Sunland was unable to establish its first allegation, concerning the representation of a 'right to acquire', the need to focus at length on the remaining representations was largely disposed of.

126 Nevertheless, Sunland did argue at trial that the second and third representations were independently made out by Joyce's email to Brown of 16 August 2007.[61] Not only did the judge specifically record that argument,[62] his Honour dealt at length with that email.[63] He concluded, adversely to Sunland, that the email did not convey the prohibitive or imperative connotations Sunland asserted,[64] and that neither Brown nor Abedian relied upon the email for the representations as asserted (or at all).[65]

Sunland's scheme case: the 'money trail' and other evidence

127 The final way in which it was alleged the judge failed to deal with Sunland's case concerned the evidence relating to the distribution of part of the Hanley fee to Joyce, the issue of joint purpose, forged or false documents, and Prudentia's internal communications.

128 It will be recalled that Sunland pleaded causes of action against Joyce and Prudentia both in statutory misconduct and the common law action of deceit. The statutory misconduct claim was pleaded in paragraphs up to [41] of the SFASOC. Thereafter, Sunland pleaded its case in deceit as follows:

• Joyce knew the representations were false or was reckless as to their truth or falsity, [66] and he intended that Sunland would act in reliance upon them;[67]
• Reed knew the representations were false or was reckless as to their truth or falsity,[68] and he intended that Sunland would act in reliance upon them;[69]
• Joyce and Reed both knew the representations had been made by each other and had the joint purpose that each would make them to induce Sunland to enter an agreement with Prudentia in relation to plot D17;[70] and
• Joyce and Reed were therefore liable to Sunland for the tort of deceit as joint tortfeasors with each other.[71]

129 Particulars were given of the common knowledge and joint purpose alleged against Joyce and Reed in [46] of the SFASOC. Those particulars were that:

• Joyce and Reed were friends, and had been friends since attending Geelong Grammar School together;
• Joyce and Reed did not disclose their friendship to Brown;
• the representations were made by each of them individually on separate occasions;
• Joyce and Reed both knew the representations were false, or were reckless as to their truth or falsity;
• Joyce and Reed each gave Brown identical particulars of the payment terms said to apply to Reed's purported acquisition of plot D17; and
• the use by Reed of the identical draft reconfiguration plan as shown to Brown by Austin.

130 Other than that allegation of common knowledge and joint purpose, in those terms, there was no further allegation in connection with the deceit claim of any relationship, commercial or otherwise, between Joyce and Reed (or Prudentia). Neither was there any allegation of a specific relationship or association for the purpose of pleading the misleading and deceptive conduct claim.

131 Three days before the trial was scheduled to commence Sunland made an application to the trial judge to amend its pleading. It sought to make an amendment to introduce further particulars of the alleged common knowledge and joint purpose of Joyce and Reed. In substance those particulars alleged, were that:

• on 18 January 2006 Reed (for Prudentia) and Joyce entered an agreement whereby Joyce would be paid a fee if he identified suitable properties in the Middle East for Prudentia to buy and if Prudentia bought such properties;
• some time before 19 September 2007 Reed and Joyce agreed that Prudentia would pay Joyce a secret commission being half of any amount Prudentia obtained from Sunland by entering the Prudentia agreement [which became the Hanley agreement];
• in furtherance of that joint purpose, in about November 2007 Prudentia or Hanley, at the direction of Joyce, caused AED 22,052,890 to be transferred to a Jersey bank account; and
• neither Joyce nor Reed disclosed those matters to Brown.

132 Sunland submitted to the trial judge that the amendment was only sought out of an abundance of caution. It argued that it would be permitted to cross-examine Joyce in respect of those matters in any event because Joyce himself had addressed the subject in a witness statement filed on his behalf. Sunland claimed that these were matters which would not take anybody by surprise.

133 Unsurprisingly, the respondents (defendants at trial) vehemently objected to the late introduction of an allegation of a secret commission, a criminal offence. Furthermore, those opposing the amendment submitted that the proposed new particulars radically altered the characterisation of joint purpose and common knowledge compared to the existing version of the case.

134 As debate progressed, it emerged that the documents upon which the allegations were founded had been in the possession of Sunland for well over twelve months. Because of the lateness of the allegation being made, Joyce argued that he would suffer substantial detriment. At that time, Joyce was still in detention in Dubai awaiting a criminal trial. Any adjournment of the trial was likely to cause him significant prejudice but, equally, he was not in a position to then secure the attendance of the necessary witnesses he would need to meet the new allegations were the trial to proceed as scheduled.

135 In the result, his Honour refused the amendment application taking the view that the new matters amounted to a substantial new allegation of fraud. Procedural fairness to the defendants would require an adjournment of the trial but for a variety of reasons adjournment of the trial was simply not a practical option. Given the delay on the part of Sunland in making its application when it had the ability to make the application well in advance of the trial, his Honour refused the amendment. Sunland did not appeal that decision.

136 It is nevertheless apparent that many of the documents concerning the 'money trail' did in fact become evidence in the trial despite his Honour's ruling. This is largely explained by the regime adopted by the judge in relation to the tender of documents. His Honour explained:

It was made clear at the commencement of the trial, and reaffirmed on a number of occasions during the trial, that the documents contained in the Court Book would stand as evidence in the case without the need to undertake any formal, specific, tender process but that I would have no regard to any documents contained in the Court Book unless they were referred to and relied upon, specifically, in the closing submissions of one or more of the parties. It was made clear that this arrangement was subject to the right of any party to object to any particular document or documents being treated as part of the evidence on this basis.[72]

137 Such a regime, or variants of it, are not uncommon in cases conducted in the Commercial Court. As, however, the experience in this case reveals, a practice such as the one used in this case may not be desirable. His Honour's regime reveals the possibility of documents having uncertain status. On the regime as formulated, all documents in the Court Book would 'stand as evidence' but some the judge would have regard to, some the judge would not have regard to, and some would not be 'treated as part of the evidence', depending upon whether they were the subject of submission or objection.

138 The same documents which Sunland said gave rise to its secret commission allegations, disallowed by the trial judge, were nevertheless in the Court Book and referred to by Sunland in its closing submissions. They were referred to in support of an argument that a 'scheme' was carried out between Prudentia and Joyce. Although both Prudentia and Joyce argued that Sunland should not be permitted to rely upon such a scheme, apparently no formal objection was taken to the documents being 'treated as part of the evidence' under the regime that his Honour described.

139 The so called 'scheme' contended for by Sunland was described, in substance, as follows:

(a) on 13 August 2007, three days before Reed had any conversation with Brown, Reed sent an email to Prudentia's solicitors both in Dubai and in Melbourne stating:

We will need to create a deed of Exclusivity and Confidentiality for my dealing with the potential on-sale of the property to a third party so the third party will only deal with me and via there [sic] dealing with me I will consent for the vendor to be able to deal with the purchaser once I have agreed terms with the third party for the on-sale of the Site subject to acceptable terms;

(b) that email described a scheme which was formulated before any communication had occurred between Reed and Brown, and was precisely the scheme that was ultimately carried into effect in the dealings between Prudentia, Reed and Sunland with respect to plot D17;

(c) the 'money trail' documents showing the distribution of the Hanley fee (AED 44,105,780) showed that one half of it was paid to Joyce and this was powerful evidence of a motive on the part of Joyce, fortifying the conclusion that he was party to the representations and involved in a joint purpose to mislead Sunland into making the payment;

(d) Joyce's motive for making the misrepresentations to Brown was to receive a share of the money paid to Prudentia/Hanley.

140 His Honour alluded to Sunland's scheme argument at several points in the judgment.

141 At one point, his Honour was considering the character of the consultancy fee payable under the final Hanley agreement and Sunland's argument that the fee was a manifestation of a 'premium' which Sunland alleged Reed and Joyce had devised to extract from it. As well as expressing the view that Sunland incorrectly conflated the notion of 'premium', as called for under the proposed joint venture agreement, and the 'consultancy fee' paid under the Hanley agreement, his Honour continued:

Additionally, I am of the view that the Sunland submissions seek to rely on selective email communications that purport to reinstate the "secret commission allegation" under the guise of an unpleaded alleged "scheme". The "scheme" for which Sunland contended is one "which had been devised to extract a premium from Sunland".[73]

142 At another point, his Honour was dealing with Sunland's pleading that the monies paid to Hanley were ultimately paid to Hanley's solicitors in Dubai.[74] In that connection his Honour noted that the fee was received by Clyde & Co, Prudentia's Dubai solicitors, on 3 October 2007, but continued:

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.[75]

143 And finally under the heading of 'Other Matters' towards the conclusion of his Honour's judgment, his Honour said in respect to both the misleading and deceptive conduct claim and the deceit claim:

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.[76]

144 A serious allegation of a covert payment of money to Joyce amounting to a secret commission (whether so identified or not) - either as evidence of joint purpose for the deceit claim or as evidence to aid a conclusion that Sunland was misled or deceived - had to be pleaded with adequate particulars.[77] For whatever purpose it might have been deployed, such an allegation was an allegation of fraud. It was not pleaded. Sunland attempted to amend its pleadings so as to properly raise the allegation, but it failed. It could not be reintroduced under another guise. Joyce and Prudentia were entitled to conduct their defence on the basis that the allegation was not to be the subject of evidence. Neither called any witnesses at trial. Joyce claimed, during the argument on Sunland's amendment application, that if Sunland's new case was to be admitted he would wish to call witnesses to meet the allegation. We cannot speculate what evidence he might have called. But the judge was correct not to consider the so-called 'scheme' and 'money trail' evidence given the facts that we have outlined.

145 We therefore stress that the issue of whether or not Joyce received any of the Hanley fee, or if so, why, was not a question the trial judge had to resolve. Quite properly he did not resolve that issue, nor did he discuss any evidence concerning the issue.

146 We do not, however, agree with the proposition that if Joyce was paid a secret commission by Prudentia for introducing Sunland to the plot D17 transaction, or somehow facilitating that transaction, that fact would necessarily have been irrelevant or immaterial to Sunland's case on breach of s 52 of the TPA. If that is what the trial judge meant by his remarks under 'Other Matters' extracted above,[78] we respectfully disagree.

147 First, it has been said a number of times that although it is not necessary to prove an intention to mislead or deceive to make out the statutory contravention,[79] courts might more readily find that a defendant has engaged in misleading conduct where an intention to mislead can be inferred.[80] Moreover, where a representor intends to induce a representee to rely upon a representation, and the representee enters the contract or takes the relevant step which the representation was intended to induce, then a court may more readily infer that the representee did so in reliance upon the representation.[81] In this case, if Joyce received half the Hanley fee, and he was paid that fee pursuant to a pre-existing arrangement for facilitating a transaction under which Sunland would pay Prudentia a fee to take over a plot purchase, then that could constitute relevant evidence from which an intention to mislead might potentially be inferred.

148 But, wherever the truth lay, Sunland forewent any opportunity to advance a case based upon its alleged 'scheme' or by following the 'money trail'. Neither Joyce nor Prudentia had the opportunity, nor the need, to meet such an argument.

149 By referring to evidence of the 'scheme' and 'money trail', we include not only the evidence of how the Hanley fee was disbursed after the transaction was concluded, but also other pieces of evidence of events from January 2006 onwards that allegedly supported the scheme hypothesis put forward by Sunland.[82] Included among those pieces of evidence are two categories we wish to mention specifically.

150 The first is evidence said to show that documents were forged, in particular the letter of 10 August 2007 purportedly from Brearley to Prudentia's Dubai lawyers.[83] Sunland had an array of arguments why the letter was a fabrication. If so, Sunland argued, the letter demonstrated that someone - inferentially Prudentia and/or Joyce - was intent on creating a false impression that Prudentia had secured a legitimate and valuable interest in plot D17 in the form of preliminary approvals for a proposed development on the land. This, it argued, could and should have been used, with other evidence, in reasoning to a conclusion that Prudentia was laying a subterfuge to pretend it had something that it did not have - ie, some right or interest in the land - and that therefore it had an intention to deceive Sunland.

151 The second category was a body of evidence - mainly snippets of internal communications within Prudentia (including to its lawyers) - said to betray elements of the wider, alleged scheme with Joyce.[84]

152 Each of these categories of evidence was one that the trial judge eschewed discussing.[85] His Honour gave two reasons for not discussing that evidence. The first was that each concerned evidence that was intrinsically part of and put forward to establish the so called 'scheme' which had been disallowed as an issue when the amendment application was refused just prior to trial. In our view the judge was justified in having no regard to the evidence on that ground.

153 A second reason given, particularly in relation to the evidence of internal Prudentia communications, was that the identified communications had no capacity to 'impact' Sunland and thus no capacity to mislead or deceive it.[86] For reasons we have already given, to the extent that such evidence of internal communications might have given rise to an inference of an intent to mislead, it might plausibly have been relevant to the question whether Sunland was in fact misled.

154 But apart from the two reasons relied upon by the judge, both categories of evidence were of questionable forensic weight. The evidence of fabrication of the 10 August letter was somewhat equivocal; made even more so by the fact that on 14 August, by an unchallenged email, DWF sent Prudentia a draft contract of sale, rather blunting the argument that Prudentia was concocting a recognised position vis-à-vis the land. Further, much of Prudentia's internal communication that Sunland claimed was incriminating was either ambiguous or arguably supported the proposition that, within Prudentia, there was a genuinely held belief that it occupied a valuable negotiating position with DWF with respect to plot D17.

155 Furthermore, we add that the asserted evidence of intention, to be derived from these various sources, could only have supplied indirect, inferential evidence of reliance or of misleading conduct. For the reasons we give below, the direct evidence on each of those subjects was so powerfully against Sunland's case, it is difficult to see how any indirect, inferential evidence could have had any significant bearing upon the analysis.

156 In the result, we do not think the judge failed to consider the case that Sunland was entitled to advance at the trial. To the extent that the judge failed to consider or discuss certain aspects of the evidence, or arguments in favour of the case that Sunland was entitled to advance, such failure was justified or, at the least, of no material consequence.

157 Having addressed, and rejected, Sunland's contentions that the trial judge failed to address its 'case theory', we now turn to consider its complaints concerning the trial judge's analysis and findings on the evidence lead at trial. The first of these issues is: what representations did Sunland prove?

158 The applicable principles in relation to assessing whether conduct was considered misleading and deceptive (or likely to mislead or deceive) are well established and were not in dispute. The conduct must induce or be capable of inducing error[87] which is to be assessed objectively by the court in light of all relevant surrounding circumstances.[88] As such, the court must evaluate what a reasonable person in the position of the representee would have understood the conduct to have meant.[89]

159 Where the impugned conduct is or includes oral statements, the court must be properly satisfied as to the content of such conduct. As McLelland CJ observed in Watson v Foxman:[90]

Where the conduct is the speaking of words in the course of a conversation, it is necessary that the words spoken be proved with a degree of precision sufficient to enable the court to be reasonably satisfied that they were in fact misleading in the proved circumstances. In many cases (but not all) the question whether spoken words were misleading may depend upon what, if examined at the time, may have been seen to be relatively subtle nuances flowing from the use of one word, phrase or grammatical construction rather than another, or the presence or absence of some qualifying word or phrase, or condition. Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.

160 The SFASOC pleads a series of specific statements as the basis of Sunland's claims.

(a) statements allegedly made by Joyce to Brown during a telephone conversation on 15 August 2007;[91]

(b) statements allegedly made by Reed to Brown during a telephone conversation on 16 August 2007;[92]

(c) an exchange of emails between Brown and Joyce on 16 August 2007;[93]

(d) statements allegedly made by Reed to Brown at Sunland's Dubai office on 19 August 2007;[94]

(e) an email and draft implementation agreement forwarded to Brown by Reed on 23 August 2007;[95]

(f) a telephone conversation on 29 August 2007 in which Joyce allegedly said Sunland should come to an agreement with Reed as soon as possible;[96]

(g) a telephone conversation between Brown and Reed on 16 September 2007 concerning terms on which Sunland might purchase from DWF;[97]

(h) a telephone conversation between Reed and Brown on or about 17 September 2007 concerning a reduction in price Reed had negotiated with DWF;[98] and

(i) an email from Prudentia's solicitor to Brown of 26 September 2007 attaching a draft agreement between Hanley and Sunland in respect of a consultancy fee relating to the acquisition of plot D17.[99]

162 When analysing the evidence concerning each of these specific statements we will, as necessary, return to and recapitulate relevant events summarised earlier.[100]

Immediate context of the first alleged representations

163 On 14 August 2007 Brearley, the in-house lawyer employed by DWF, had forwarded a draft SPA for proposed plot D17 to a solicitor acting for Prudentia in Dubai.

164 At that time, plot D17 had not been created as a separate title with specific development rights.

165 The following day Austin told Brown that the master plan for the Dubai Waterfront was to be reconfigured so as to create proposed plot D17 adjacent to a waterfront plot already owned by Sunland and known as plot D5B.[101]

166 The SFASOC alleges that at a meeting at Sunland's Dubai office on that day Austin:

• showed Brown a draft plan for the reconfiguration of existing vacant plot to create plot D17;

• told Brown that no title plan had been prepared for plot D17 because the redesign of the existing plot was not yet complete;

• said to Brown words to the effect that 'plot D17 is already taken by Angus Reed'; and

• gave Reed's Australian mobile phone number to Brown.[102]

167 The agreed summary of facts states Austin gave Brown the name of Andrew Angus Reed who was said to have had a 'hold on the plot' and that Brown did not ask Austin what that meant. The phrase 'a hold on the plot' is recorded in Brown's notebook. This was a workbook in which he recorded important information. In evidence he said that he used his notebook 'to record conversations and meetings, have to do lists so I wouldn't forget things, so I could plan my day' and agreed that generally he 'made the notes in [his] workbook contemporaneously [and] normally during a meeting or a phone call, I'd be writing down at the same time.'

168 Brown said that he kept his notebooks in a drawer behind his desk in his office in Dubai; thus the notebooks were readily accessible to him at all relevant times.

169 The trial judge was correct to conclude that it is significant that the notebook does not record Austin used the words alleged in the SFASOC that 'plot D17 is already taken by Angus Reed.'

170 In cross-examination, Brown agreed that he was shown recently prepared confidential plans for the reconfiguration of the plot behind D5B, including the proposed plot D17. The plans were headed 'Increasing Development Value and Improving the Effectiveness of Open Space Provision in the Centre of Precinct D: DWF Valuation Creation Exercise August 2007'.[103] The plans bear an annotation, 'Site D17 and D18 created to maximise value'. The plans described the area of the proposed plot D17 (169,114 square foot), the built-up area (1,607,052 square foot), the floor area ratio (9.5), potential maximum height of development (228 metres) and proposed price of AED 216,952,020, being equivalent to a price of AED 135 per square foot of built-up area. Brown said he was shown the plans because although they were confidential Sunland had just finished a design exercise for DWF on the foreshore and Austin had admired their design work. When he showed Brown the plan his first question was, 'What do you think of it?' The plans included two areas of public open space, six proposed plots, two new roads, a kindergarten and a utility area.

171 There are five incidental aspects of this immediate context which might be thought to inform the assessment of the evidence as to the subsequent discussions between the parties:

(a) it was Austin, not one of the defendants, who first contacted and advised Brown about plot D17, precipitating Brown's subsequent actions;

(b) contrary to the evidence, Brown subsequently repeatedly maintained to Dubai prosecutors in 2008-9 that he was introduced to Reed by Joyce;

(c) Austin established a context in which further conversations with Joyce and Reed occurred. In particular, he provided the proposed development parameters of the plot but also made clear the redesign was not yet finalised;

(d) Austin advised Brown of the proposed price of the plot which was plainly stated on the plan describing its development parameters;

(e) at the time of Austin's contact DWF was in fact dealing with Prudentia in contemplation of a proposed sale of plot D17 (although Brown did not know of the draft SPA);

(f) the terms of the reference to Reed by Austin alleged in the SFASOC were not proved. In particular, the words a 'hold on the plot' are not equivalent to 'already taken' and do not necessarily convey more than a de facto commercial negotiating position.

172 On the same day, 15 August 2007, Brown telephoned Joyce and spoke to him about plot D17.

173 As mentioned above,[104] and as Brown agreed in cross-examination, in June 2007 there had been something of a falling out between Joyce and Brown in connection with a prospective joint venture between Sunland and DWF relating to the development of plot A10C. Brown's witness statement of 6 October 2010 describes Joyce as 'unhappy' and in an email of 24 June 2007 to Brown, Joyce had said that the situation 'has caused us major embarrassment'. [105]

174 The SFASOC pleads the communication between Joyce and Brown on 15 August 2007 as follows:

1. Later in the day on 15 August 2007, following the meeting referred to in paragraph 10 above, Joyce telephoned Brown and during that conversation said to Brown words to the effect that:

12.1 'a man named Reed is the contact for Plot D17';

12.2 'although I will need to check this with Anthony Brearley, Reed's company will be paying Dubai Waterfront AED135 sq/ft to purchase Plot D17' (namely 135 United Arab Emirates dirhams ('AED') per square foot of built up area ('BUA'));

12.3 'the terms of payment are more favourable than the standard terms, being 5% on execution of the contract, 10% at handover which is scheduled to take place 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, and 15% at 36 months after handover'; and

12.4 'a property speculator would be likely to pay about AED175 sq/ft to purchase Plot D17'.[106]

175 From Sunland's point of view there is a series of difficulties both with this pleading and the evidence concerning the underlying facts:

(a) as Brown conceded in evidence, he telephoned Joyce, not the other way around;

(b) nevertheless Brown agreed in cross-examination that he had (incorrectly) repeatedly told the Dubai prosecutor Joyce telephoned him. His witness statement of 6 October 2010 states he cannot recall if he called Joyce or Joyce called him; [107]

(c) in oral evidence Brown stated that Joyce confirmed what Austin had told him but Joyce also said he would need to check the price with Brearley;

(d) the pleading conveys the impression that it was Joyce who first advised Brown of the proposed price details whereas in fact they had already been provided by Austin. The combination of the omissions in the pleading with respect to the information supplied by Austin[108] and the positive allegations with respect to the subsequent conversation on the same day between Brown and Joyce[109] is thus fundamentally misleading;

(e) a statement that Reed was 'the contact' for plot D17 was, as the trial judge concluded, not one which would amount to a statement that Reed or Prudentia 'controlled' plot D17 or had some reservation or right in respect of the plot;[110]

(f) Brown's witness statement confirms the use of the phrase 'the contact for' but in cross-examination he said at various points that Joyce said that Reed 'had a plot behind our site D5B' or used words to that effect. He could not recall exactly what Joyce said.[111] Not surprisingly the trial judge was not persuaded of what precise words were used;

Joyce said a man named Andrew Reed was the contact for plot 17 and that Reed's company was partners with [sic] Och Ziff ('Och Ziff') and had done projects with Lend Lease. Joyce suggested I should contact Reed if Sunland was interested in a joint venture. Joyce mentioned that Reed and Och Ziff had projects in India. I recall that I discussed with Joyce my meeting with Austin.[112]

The failure to plead any reference to Och Ziff or the prospect of a joint venture robs the pleading of material elements of the conversation. As the trial judge noted,[113] it would be obviously true that Reed was the contact for joint venture purposes;

Joyce said to me that the plot had favourable payment terms spread over 30 months and the 'contract price is AED135/sqft' but that he would check this with Brearley. He explained the payment schedule for this site in comparison to the standard terms and I recorded it at page '.0097' of my Notebook as follows:

This to me indicated that there was some sort of contract in existence and that terms and prices had already been negotiated. He said that Nakheel would like a proven developer such as Sunland to be involved. He suggested that Reed was an investor who needed a developer partner like Sunland who could deliver the project for him. I understood from this discussion that Joyce wanted Sunland involved in the project because he wanted buildings to be built, and not have more land speculators who would just sell the land for a quick profit.

During that phone call, he said "Reed is likely to sell to another speculator at AED175/sqft". This reaffirmed to me that Reed controlled the land;[114]

(i) the proposition that there was 'some sort of contract in existence' (as was the fact, namely the draft provided by DWF to Prudentia on 14 August 2007) did not necessarily imply that the contract had been concluded. Nor did it imply that more had occurred than negotiation of some proposed terms. Indeed, the fact that Austin had advised the design was not 'complete', that Brown was aware no SPA had been signed and that the possibility of a joint venture was discussed demonstrated no contract had been concluded;

(j) there is nothing improper in the motive attributed to Joyce, namely a desire to have Sunland involved to facilitate actual development;

(k) the assertion in the witness statement that Joyce said 'Reed[115] is likely to sell to another speculator at AED 175/square foot', is not pleaded. Nor is it recorded in Brown's notebook. The note is simply:

Contract is 135/ft2 BUA (checking Anthony)

Likely to sell to another speculator at 175/ft;

Brown's own typed up version of this note records this part of the conversation as:

He said the site is likely to sell to a speculative investor around AED175/ft2 if it was on the open market.

This tends strongly to confirm Joyce did not say Reed was likely to sell to a speculator. In cross-examination Brown agreed that what he recorded in his typed notes was, in other words, simply that if the site were on the open market you would get AED 175 per square foot for it;

(l) Brown's witness statement omits additional information recorded in his notebook concerning the conversation with Joyce:

Side deal 65 m up-front and hand over contract to purchaser.

And enter into consultancy to avoid transfer fee and stamp duty.

Agreement with Nakheel;

Brown gave evidence that he did not refer to this in his witness statement because he did not fully understand what it meant. The trial judge recorded:

It was submitted that Brown's evidence was not credible and that his omission of any discussion of this part of his file note makes it clear that during this conversation with Joyce, Brown had a thought about a side deal whereby Sunland would make a payment up front to Reed in order to step into his shoes. This, it was submitted, was supported by Brown's own admission to Mr Mustafa of the Dubai authorities that no-one at Nakheel or DWF ever asked him to pay a commission or premium. It is unclear whether Brown made this offer to Joyce or whether Brown merely noted it down in his notebook. It was submitted that Brown's failure to disclose this in his witness statements and his denial of it in cross-examination wholly undermines his evidence regarding this conversation. Brown's evidence was that he did not refer to this in his statement because 'I didn't fully understand what was meant by those words and I presumed that it was related to a premium figure, but it was all the very first conversation and so he didn't elaborate on that'. Brown denied that he had deliberately chosen not to include this material in his statement, but did admit that he had also not mentioned any 'side deal' to the Dubai prosecutor;[116]

(m) his Honour further concluded that, viewed in the context of the evidence as a whole, the submissions made on behalf of Joyce as to the significance of the conversation of 15 August 2007 should be accepted.[117] Viewed overall, Brown's evidence indicates Sunland's confusion in relation to what it says was being represented to it with regard to Reed or Prudentia's 'right' in relation to plot D17.[118]

(a) the phone call of 15 August 2007 was instigated by Brown and not Joyce. The pleading (and repeated statements by Brown to the Dubai prosecutors) imputed a moving role to Joyce which he did not take;

(b) the pleading does not acknowledge Austin had provided details of proposed price;

(c) the pleading does not acknowledge that Joyce explicitly suggested Brown should contact Prudentia 'if he was interested in a joint venture';

(d) discussion of some negotiated contract terms and/or of a draft proposed contract did not imply a concluded agreement had been reached with Prudentia;

(e) a statement that Reed was the contact for the plot did not imply Reed or Prudentia had a vested right in the plot;

(f) Brown's witness statement exaggerates the reference Joyce made to the open market value of plot D17. The evidence does not support the view that Joyce said Reed was likely to sell to another speculator;

(g) Brown's witness statement omitted reference to any conversation with Joyce concerning a 'side deal', or contemplation by him of any side deal at this point in time, in circumstances where the nature and propriety of any side deal was at the heart of Sunland's case; and

(h) the evidence did not establish that Joyce said to Brown that Reed had a 'hold' on plot D17, that Reed 'controlled' plot D17, or that Reed had a 'right' to or had 'reserved' plot D17 (noting that none of these allegations were pleaded).

Brown's conduct after the conversation of 15 August 2007

177 The trial judge summarised the evidence as to Brown's conduct after the conversation of 15 August 2007:

The evidence indicates that Sunland had very significant interest in purchasing Plot D17, particularly having regard to the fact that it was immediately behind Plot D5B, which one of the Sunland entities already owned. Brown discussed his conversation with Joyce with Abedian later on 15 August 2007 and the latter was 'quite interested in the possibility of a new project'. Continuing, Brown's evidence was that Abedian suggested that he prepare a draft feasibility for the plot because 'we wanted to understand whether the plot would be an appropriate one for Sunland to pursue'. Brown's evidence was that Sunland generally looks for a return on development costs of 20% or more. Feasibility revision three, dated 15 August 2007 discloses a 29.26% return on development cost. Sunland's interest was also demonstrated by its production of a series of design sketches which were shown to Austin a few days later, together with a new proposal which increased the three plots behind Plot D17 to five plots. The evidence of Brown indicated that this involved a series of design proposals that would improve the efficiency of land used by deleting the road and increasing the size of the park areas. The result would be that the net built up area ('BUA') of the new plots behind Plot D17 would increase by 12% and each plot would have a park frontage, thereby improving their value. He said that this represented a monetary increase of some 12% for the additional plots created and added around AED 10 million to the land values. Later, in August 2007, Brown said that he and Mr Cameron McLeod (then a member of the Sunland design team) met with Austin to discuss their further design ideas. [119]

178 The fundamental premise of the design work Brown undertook makes clear that he understood the terms of purchase for plot D17 were not finalised.

179 The day after Brown's conversation with Joyce concerning plot D17 Brown telephoned Reed. The SFASOC alleges:

1. On 16 August 2007, Brown telephoned Reed on Reed's Australian mobile phone number (referred to in paragraph 11.4 above) and during that conversation Reed said to Brown words to the effect that:

13.1 'I am in Melbourne and will be flying into Dubai on Sunday';

13.2 Prudentia was his company;

13.3 through Prudentia 'I have the right over' or 'I control' Plot D17; and

13.4 he would be willing to negotiate with Brown about undertaking a joint venture with Sunland for the development of Plot D17.[120]

On 16 August 2007, I called Reed on his Australian mobile phone, told him who I was and told him that I obtained his details from either Austin or Joyce. I told him that I wanted to talk to him about Plot D-17. During that phone call, I discovered that his name was 'Angus' not 'Andrew' (which was the name Joyce had told me). I corrected this name in my Notebook. He introduced himself and his company Prudentia Investments Pty Ltd (Prudentia). He said that he was in Melbourne and that he would be arriving in Dubai on Saturday and suggested we meet on Sunday. He said to me words to the effect of either "We have the rights over that land" or that "Prudentia controlled that land". I cannot recall the precise words. I understood them to mean that Prudentia had control over Plot D17. A record of this conversation is contained at page '.0099' of my Notebook. This tied in with what Joyce had told me the day before.[121]

181 The witness statement acknowledges Brown cannot recall Reed's precise words.

182 His notebook does not record the words 'right' or 'control' or any similar terms.

183 His type-written summary of the relevant part of his notes was to the following effect:

I received a call from Angus Reed from Melbourne, Australia. He told me he had a company called 'Prudentia Investments' and that he was arriving in Dubai on Saturday 18th August, and he would like to talk to us about a plot at Waterfront. This indicated that Matt Joyce wasn't sure of the contact as he thought his name was Andrew.

184 Once again, this nominates someone other than Brown as the instigator of the conversation when the evidence makes entirely clear that it was Brown who called Reed.

185 Indeed the witness statement is directly contrary to a number of statements made to the Dubai prosecutors:

During cross-examination, Brown admitted that contrary to the evidence in his witness statement in this proceeding, he had told the Dubai prosecutor in an email dated 3 December 2008 that '[w]e were initially contacted by Angus Reed', and this was Brown's 'memory at the time'. Brown's witness statement is also inconsistent with the agreed transcript of his interview, conducted under oath, with the Dubai prosecutors on 16 February 2009 where Brown is recorded as giving evidence to the prosecutor that _'_in August 2007 I received a call from the accused Matthew Joyce, who told me an Australian called Angus Reed has relations with Och-Ziff and will discuss with me land lot on the Waterfront Project'. [122]

186 The reference in the typed summary diary note which we have quoted above, relating to lack of sureness on Joyce's part as to Reed's name, is also difficult to understand when Brown had himself noted on the previous day that Austin told him Reed's name was 'Andrew Angus Reed'.

187 More critically however, the typed note also fails to record any use of words whatsoever of the type alleged relating to 'right' or 'control'.

188 In cross-examination Brown said that what he did remember was that the words used by Reed were 'exactly consistent' with what Austin and Joyce had told him. Brown also said that Reed used words 'consistent with' having a 'hold on the land'.[123] Once again it should be noted that this is not what the SFASOC alleges Joyce said.

189 Brown said he did not ask Reed to provide any documentary evidence of an interest in the land because Brown knew that the land 'was being created'.[124] Brown knew that there was no affection plan that is, a plan showing the dimensions, development rights and ownership of the land.[125] Brown knew Prudentia had not purchased the plot. When asked whether Brown asked Reed how he came to have any entitlement to the plot Brown said, 'It was quite clear that it was through one of their partners,' and then said Reed explained Och-Ziff was his partner.[126]

190 At [142] of his witness statement however, Brown referred to Reed's statements concerning Och-Ziff in substantially more speculative terms as follows:

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.

191 The trial judge found Brown's answers in cross-examination concerning the basis of his impression of a relationship between Reed and Nakheel less than persuasive.[127] More critically, perhaps, 'reasonable guesses' made by Brown cannot sensibly found Sunland's claim.

192 Brown's witness statement relating to 16 August 2007 continues after the passage which I have quoted above:[128]

Reed said that he knew what Sunland was doing in Australia and Dubai. He asked whether Sunland would be interested in doing a joint venture in Dubai and I said that it would be interested. Reed said to me that Prudentia would put the land into a joint venture (JV) for AED 175/sqft and would be looking for a consultancy fee of AED 60M. I was surprised by this as it was higher than the price that Joyce had mentioned. I did not argue with him about this on the phone, as I knew JVs often start with big demands, and the terms usually change. Reed also gave me his email address, which was 'reed@pinv.com.au'.

Reed said to me during this telephone conversation that he had a leisure lifestyle vehicle in Australia and was partners with a large American hedge fund. I understood this to be a reference to Och-Ziff, because of what Joyce had told me on 15 August 2007.[129]

(a) Brown did not depose to words used by Reed with any precision;

(b) neither his notebook, nor the typed summary of the notebook contains a note of words to the effect alleged, namely that he had 'the right over' or 'controlled' D17;

(c) ultimately, Brown's evidence was that what Reed said was consistent with what Austin and Joyce had said. This begs the question of what was previously said. If it be accepted that at best it was proven to amount to no more than a statement Reed was the contact for the plot for the purpose of a joint venture, then it falls far short of the statements alleged. At its highest, Brown's evidence might justify a finding that Reed confirmed he had a 'hold on the land';

(d) Brown made a series of untrue statements to the Dubai prosecutors about this conversation. In particular he repeatedly advanced the proposition that Reed was the instigator of it;

(e) on any view of the evidence, the trial judge could not be satisfied anything said conveyed to Brown that Prudentia had a legal right to plot D17;

(f) read as a whole, Brown's witness statement did not support the view that Reed told Brown that Reed had high level connections with Nakheel. Whether guesses made by Brown in this regard were reasonable or not is not in point.

The email exchange between Brown and Joyce on 16 August 2007

194 As the SFASOC alleges,[130] late on 16 August 2007 Brown sent an email to Joyce which said:

We have spoken to the gentleman in Australia, and have a tentative meeting with him on Sunday. It was a very positive discussion.

195 Joyce emailed Brown back later that day and said:

Good luck, thanks. I thought they were based here? Anyway the issue for us is that you can come to an arrangement with them that allows you to deal directly with us.

If it does proceed please liaise with Anthony Brearley, our Legal Counsel on contract issues and Jeff Austin on Planning. I will make myself available as required.

I understood Joyce's statement that '[a]nyway the issue for us is that you can come to an arrangement with them that allows you to deal directly with us' to mean that in order for Sunland to develop (or buy) the plot, it would have to come to an arrangement with Reed before it could deal with Dubai Waterfront.[131]

197 As the trial judge observed, the email from Joyce must be read in the context of the circumstances at the time. [132] These included:

(a) Joyce had spoken to Brown about a potential joint venture with Reed the previous day;

(b) Brown had made the call to Reed in pursuit of a joint venture with Reed and it was this which was the subject of a 'very positive discussion';

(c) Brown had indicated that his discussions with Reed would continue 'on Sunday'; and

(d) according to Brown himself, Joyce had felt betrayed by Sunland in the earlier prospective joint venture between DWF and Sunland in connection with plot A10C.

198 On 22 January 2009 Brown made a 'clear statement of events' to the Dubai prosecutors which included the following:

We understood from Nakheel that we had to have an arrangement with Angus Reed to be able to develop the plot together.

Thus, the general tenor of the then prevailing circumstances was that there had been a 'positive' discussion between Reed and Brown about a future joint venture development and in this context the message from Joyce contained in the email pleaded by Sunland is therefore no more than invitational in that it suggests to Sunland an opportunity for it and Reed and Prudentia to work out themselves which party will negotiate with DWF on behalf of the proposed joint venture. In other words, if Sunland wants to take the negotiating seat, then they can come to some arrangement with the future joint venture partner to that effect.[134]

200 We respectfully agree with his Honour. Joyce had been advised by Brown of a 'very positive discussion' with Reed after a conversation the previous day in which, as Brown put it in his witness statement, 'Joyce suggested I should contact Reed if I was interested in a joint venture.' The words of the email must be construed in this context.

201 The words 'if it does proceed', used in the email from Joyce, refer to the proposed joint venture.

202 The words of the email are facilitatory. They do not purport to exclude Sunland from dealing with DWF in the absence of Prudentia. They simply invite further joint dealings.

203 We further accept the submission made on behalf of Joyce:[135]

Sunland's case of deceit and misleading or deceptive conduct against Joyce really boils down to this one email. Although it is not even clear who the 'they' is a reference to[136] it is apparent that the words used do not convey a representation that Prudentia held any 'right' in respect of plot D17 or that DWF was otherwise constrained in selling Plot D17 to Sunland. The email is consistent with Prudentia (or its funding partner, Och-Ziff), rather than Sunland, simply being the party to whom DWF intended to sell Plot D17 - as was its prerogative. The judge found that 'a master developer, such as DWF, might well choose not to negotiate with every person who expressed an interest in a particular piece of land and might generally try to negotiate instead with an interested party, such as Prudentia, if that party was an experienced developer which the master developer wanted in the project'. As the judge found, the email is equally consistent with DWF desiring that there be a single point of contact between it and any joint venture between Sunland and Prudentia/Och-Ziff. In one of his early emails to the Dubai authorities, Brown himself said that he asked Brearley, Joyce and Lee whether they knew about Reed, Prudentia and Och-Ziff and '[a]ll they knew was that there had been discussions at a high level about the plot, and Oxiff [sic] was involved'.

204 The trial judge further addressed the evidence as to Brown's own understanding of the email at the time including the 'clear statement' of 22 January 2009 provided to Dubai prosecutors to which we have already referred:[137]

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 ...'.

205 We respectfully agree that these conclusions accord with the weight of the evidence and support the view that read in context Joyce's email of 16 August 2007 did no more than invite a joint venture proposal from Sunland.

206 If we are incorrect in this conclusion, there is a further substantial issue as to the reliance (if any) of Sunland upon the email. We shall come to this shortly.

207 Prior to the meeting which Brown had arranged with Reed, Brown prepared a series of feasibility calculations estimating the potential yield which could be derived from redevelopment of plot D17. The final such calculation showed a potential profit of 26 per cent.

208 He also sent a number of emails to Reed including one in which he said he would have an offer ready when Reed arrived. Brown's witness statement indicates the meeting took place at Sunland's Dubai office at about noon on 19 August 2007. Reed had flown in that morning. Brown describes the meeting as follows:

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]

209 Brown also says both Joyce and Reed told him that no payments had been made on the plot to date and payment of five per cent would be made on execution of a SPA. In cross-examination Brown said he did not ask Reed for any documentary evidence of Reed's hold on the land because he knew the land 'was being created'.[140] He also agreed that Sunland was keen to be involved in a joint venture.[141]

210 The SFASOC focuses upon the request Reed made at this meeting for a premium as part of the joint venture proposal.

1. On 19 August 2007, Brown met with Reed at Sunland's Dubai office and during that meeting Reed said to Brown words to the effect that:

15.1 'the price in the area in which Plot D17 is located is as high as AED175 sq/ft';

15.2 'I can obtain a price of AED135 sq/ft from Dubai Waterfront';

15.3 'I want compensation of AED40 sq/ft as part of the terms of a joint venture'; and

15.4 'it would be more tax effective for the compensation to be paid as a fee to Prudentia for consultancy services'.

1. At the meeting on 19 August 2007 referred to in paragraph 15 above:

16.1 Reed told Brown the payment terms on which Reed was acquiring Plot D17;

16.2 the payment terms that Reed told Brown were exactly the same as those that Joyce told Brown on 15 August 2007, as pleaded in paragraph 12.3 above; and

16.3 Reed showed Brown exactly the same draft plan for the re-configuration of the land containing Plot D17 that Austin had shown Brown in their meeting on 15 August 2007, as pleaded in paragraph 11.1 above.[142]

211 The evidence as to what was said at this meeting raises a series of matters relevant to Sunland's case upon reliance but insofar as the case on representation is concerned:

(a) there is no allegation or evidence of an assertion by Reed of any legal right to plot D17;

(b) the allegations and evidence as to the request for a premium concern compensation for the difference in price which Reed asserted he could obtain below market price. On its face there is nothing inherently improper in seeking such a fee;

(c) nor does the basis of the request imply a legal right to acquire the land. The premise of the request is simply an asserted bargaining position.

212 Brown's evidence further established that the intention on Sunland's part was if any payment was payable to Prudentia it would come out at the completion of a joint venture development.

213 Following the meeting on 19 August 2007 Brown and Reed exchanged emails about the proposed joint venture. Whilst accepting that a premium of the type sought by Reed might be paid in principle, Sunland put forward its own model of joint venture. Reed rejected this proposal on 20 August 2007:

Firstly thank you for your proposal my intial [sic] comments is that a JV on these terms would hold little appeal as the money would be all be being provided by our side the basic approach I was proposing was that you valued the land as proposed below [in Brown's email] plus the 40 upliift [sic] and that this formed the equity amount for our side and that you put forward an equal amount of equity this covering the soft cost and land purchacse [sic] until the project pre sales reach an acceptable level for funding to be put in place and then if further equity is required beyond this to deliver the project then both parties contribute 50/50.

214 Reed sent a further email to Brown indicating amongst other things that he was talking to another party, but this was not 'his preferred approach' and he would defer any discussions with the other party until after Reed and Brown had met on 21 August 2007.

215 After receipt of Reed's emails, Brown emailed Abedian with the comment that Reed wanted 'us to put in 65m'. The evidence of Brown and Abedian was that they had a discussion about Reed's email and that Abedian's opinion was that the terms proposed by Reed were unacceptable to Sunland because they did not fit the Sunland joint venture model. Brown's evidence was that Abedian 'instructed me to respond to Prudentia that we could not proceed with the JV and to wish them luck' and that Brown responded to Reed to this effect. Brown sent an email to Reed stating 'unfortunately we cannot proceed on a joint venture based on the terms outlined in your email.' Brown also sent an email to Abedian noting that 'we will need to let Matt [Joyce] know tomorrow'. Reed responded to Brown's email indicating that he still wanted to meet with Brown and adding that 'his clear preference having slept on it is to find an approach that can work with Sunland'. Brown's evidence was that after this email he had a conversation with Reed and during the conversation Reed offered to move towards the Sunland proposal and they discussed 'the high level JV terms'.

216 After a further discussion between Brown and Abedian, Brown sent a further email to Reed stating:

Based on our discussion I can confirm the following JV proposal-

• The Site will be transferred to a SPV comprising a 50/50 Shareholding for each Partner, and a JV Agreement will be signed
• The first Land Instalment payment of 5% Deposit will be paid by Sunland
• All the other conditions of our previous email will stand.
• In the event that our JV Partner fails to fulfil the payment obligations for Land as required by DWF, Sunland has the right to take over the JV and make the other Land Payments
• Under this scenario, the JV would be at an end, and the Partner's shares in the JV would transfer to Sunland, with no Premium payable.
• Soft Costs through to the stage of adequate Presales will be funded equally by both parties

We understand that there are no Transfer Fees applicable to the JV.

If these terms are acceptable, we can meet with you at 10am and show you the Feasibility

At this point I am not in a position to show you our Design Concept ...

217 Brown's evidence was that at this point in the joint venture negotiations Abedian and Brown were prepared to show Reed their preliminary thoughts as to feasibility studies but were not prepared to show him any design drawings because Brown knew he was talking to other parties.

218 Later that day (20 August 2007) Brown again met Reed at Sunland's Dubai office and they agreed a program for developing the proposed joint venture over the next three to five weeks:

137.1 The parties would agree to joint venture headlines and prepare a MOU;

137.2 There would be a due diligence period including planning and design discussions with Dubai Waterfront;

137.3 Subject to finalising the MOU, Sunland would become the negotiating party with Nakheel;

137.4 If Prudentia and Sunland could not agree to a joint venture agreement then Sunland could step into Prudentia's shoes and buy the site at the pre-agreed rate of AED 135/sqft;

137.5 The target date for signing a joint venture agreement would be 30 September 2007;

137.6 Achieve site handover between 31 January 2008 and 31 March 2008;

137.7 Commence construction work within 12 months of site handover.[143]

The evidence that 'Subject to finalising an agreement, Sunland would become the negotiating party with Nakheel' is consistent with the arrangement referred to by Joyce on 16 August 2007 as being one by which Sunland would be authorised to speak to DWF on behalf of the joint venture. [144]

220 Brown also said in his reply witness statement that at this second meeting on 20 August 2007 with Reed, it was agreed Brown would negotiate with Austin on technical planning and design matters, and that Julianne Stringer[145] (then General Counsel of the Dubai branch of Sunland) would negotiate the final terms of the SPA with Brearley (then the Senior Legal Counsel for DWF). Brown said Sunland was to have no role in relation to the terms of the actual purchase and the price as Brown understood that Reed and Prudentia controlled the land and that the price of AED 135 per square foot and the instalment schedule had already been agreed. The trial judge observed:

This evidence is inconsistent with his earlier evidence that Sunland would conduct negotiations with Nakheel and is also inconsistent with his dealings with Brearley and Lee on 12 September where a price of AED 120 per square foot was discussed with respect to Plot D17.[146]

221 After the second meeting on 20 August 2007, Brown sent an email to Sahba Abedian which provided Reed's email details to him and stated in part, 'Angus has foot on the site behind our Waterfront Plot, and we are negotiating a potential JV with him.'

The draft implementation agreement of 23 August 2007

222 Sunland next pleads an email from Reed to Brown sent on 23 August 2007:

17 On 23 August 2007, in an email Reed sent to Brown:

17.1 Reed attached a draft document prepared by Freehills solicitors in Melbourne on behalf of Prudentia, entitled 'Implementation Agreement';

17.2 Reed referred to the attached Implementation Agreement and then stated that he 'did read it through last night and think it reflects our understanding';

17.3 The attached Implementation Agreement:

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

17.3.2 provided in clause 3(a) of the operative part that 'Prudentia agrees to introduce Sunland to [Dubai Waterfront LLC] and allow Sunland to negotiate the acquisition of [Plot D17]'; ...[147]

In paragraph 1 of the 'Background' the draft agreement [referring to the Implementation Agreement] stated 'Prudentia has reached agreement with the Seller to acquire and develop the Property'. I understood this to mean that Prudentia had a right to acquire and develop Plot D17, which further reinforced Joyce, Austin and Reed's comments that Prudentia controlled the plot.[148]

224 When reference is made to the implementation agreement as a whole it contained the following relevant statements (emphasis added):

1. Prudentia has reached agreement with the Seller to acquire and develop the Property.

1. Sunland has proposed to Prudentia that it could develop the Property into 2 residential towers and other ancillary uses. It is proposed that the residential towers will comprise 71 floors and 45 floors respectively (Development).

1. Sunland has agreed to provide further information regarding the proposed Development subject to the terms of this agreement.

1. This Implementation Agreement records the arrangements agreed between the Parties and serves as a basis for the Parties moving forward in good faith.

The Parties agree that:

(a) Prudentia will allow Sunland to negotiate to negotiate [sic] the acquisition of the Property;

(b) the Parties will act reasonably and in good faith in an endeavour to negotiate and agree upon the form of a joint venture agreement in respect to the development of the Property;

(c) in the event that the parties are unable to negotiate and agree on the form of a joint venture agreement in respect to the development of the Property and 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, Sunland has agreed to pay to Prudentia the sum of AED 64,282,080.

(d) the Covenantor has agreed to guarantee to Prudentia the payment of the consulting fee by Sunland, subject to, and in accordance with, the terms and conditions set out in this agreement.

3 Sunland to negotiate acquisition of the Property

(a) Prudentia agrees to introduce Sunland to the Seller and allow Sunland to negotiate the acquisition of the Property.

(b) Prudentia is entitled to receive full details of all relevant information obtained by Sunland in the course of its negotiations with the Seller.

(c) Sunland must, at its cost, promptly:

(1) give Prudentia any report and information reasonably required by Prudentia from time to time; and

(2) on becoming aware of any information of importance, forward a copy of it to Prudentia.

(d) Sunland must, during working hours and on reasonable notice to Sunland, give Prudentia full rights of access to and inspection of all information under Sunland's control relating to the Development.

(a) The Parties must act, and must procure that their lawyers act, reasonably and in good faith in an endeavour to negotiate and agree upon the form of a joint venture or other form of agreement acceptable to the Parties for the development of the Property (Formal Agreement).

(b) The Formal Agreement must contain those matters referred to in Schedule 2.

(c) The Parties agree that the precise structure and terms of the Formal Agreement are to be advantageous from a financing corporate governance and asset protection perspective.

(d) The Parties shall use their best endeavours to execute the Formal Agreement by 30 September 2007.

Within 5 Business Days of the date of this agreement, Sunland must at its cost provide Prudentia with the following information concerning the Development:

(a) Sunland's design concept for development of the Property

(b) a budget of soft costs to enable the Parties to launch the Development;

(c) a full feasibility for development of the Property;

(d) a development timeline highlighting key milestones for the Development including dates for achieving desired presale targets, project delivery targets and construction milestones;

(e) a detailed cash flow analysis for the Development based on Sunland's feasibility;

(f) a marketing budget and timeline; and

(g) any other information reasonably requested by Prudentia relating to Sunland's proposal for development of the Property.

(a) A control group will be established as soon as practicable by the Parties and will comprise two representatives of each of Prudentia and Sunland. Representatives may be replaced at the discretion of the nominating Party. Representatives may nominate alternates to attend meetings of Joint Venture Discussion Group at their discretion.

(b) The Parties acknowledge that the initial members of the Joint Venture Discussion Group are:

Prudentia representatives: Angus Reed and John Roysmith

Sunland Representatives: David Brown and [#]

(c) Quorum for a meeting of Joint Venture Discussion Group shall be the attendance of at least one representative (or alternate) nominated by Prudentia and at least one representative of Sunland.

(d) The tasks of Joint Venture Discussion Group are to determine the terms and conditions of a joint venture arrangement between Prudentia and Sunland for the development of the Property.

(a) In consideration of Prudentia permitting Sunland to negotiate with the Seller for the acquisition of the Property, 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 with the Seller (Acquisition Agreement) and the Parties have not entered into the Formal Agreement, Sunland must, at the election of Prudentia:

(1) pay to Prudentia the sum of AED 64,282,080; or

(2) provide Prudentia with a credit note in the sum of AED 64,282,080, on the date that Sunland enters into the Acquisition Agreement as a consultancy fee for services provided by Prudentia to Sunland in introducing Sunland to the Seller and assisting in negotiations between the Seller and Sunland.

(b) The Covenantor guarantees to Prudentia the payment of the consulting fee by Sunland.

...

The Parties agree that, except as expressly contemplated in this agreement, they will not, either alone or with any other entity, participate or be involved in the acquisition or development of the Property.

10 Duration of exclusivity and confidentiality obligations

The Parties must observe the obligations of exclusivity and confidentiality expressed in this agreement for 3 years from the date of receipt of the Confidential Information, notwithstanding termination of this agreement.

225 Schedule 2 of the draft agreement (referred to in clause 4 of the operative part set out above) included the following (emphasis added):

1 Overview

(a) Prudentia will incorporate or acquire a new special purpose company to hold the freehold interest in the Property (LandCo).

(b) The Parties will incorporate a new special purpose company to undertake the development of the Property (NewCo).

(c) Prudentia and Sunland will each hold a 50% interest in New Co.

(d) LandCo will enter into a development agreement with NewCo granting NewCo all development rights over the Property. LandCo would make the land available as security for the land acquisition and construction facilities.

(e) Prudentia would be responsible for all land payments due under the sale and purchase agreement with the Seller except for the deposit of AED 10,847,601 which would be payable by Sunland.

(f) Prudentia will seek to finance payment of the land payments from third party debt financiers and the cost of finance shall be treated as a joint venture cost.

...

Prudentia is to be paid a premium of AED 40 for the land based on a developable area of 1,607,052 square feet.

6. Distribution of Profits

Profit is equally shared, with the distribution of moneys at Project Completion as follows-

(a) Senior Debt repaid

(b) Mezzanine Debt repaid

(c) Land and Premium repaid

(d) Profit Share distributed

226 Sunland submitted that para [1] of the 'Background' recitals to the draft agreement constituted an unambiguous representation that Prudentia had reached a clear agreement with the seller of plot D17 and that it was an agreement to acquire and develop the property. It further submitted that the provisions of the agreement which referred to Prudentia 'allowing' or 'permitting' Sunland to negotiate reinforced the representation.

227 The trial judge rejected this submission because other provisions of the draft made it clear that the agreement was merely the transfer of something in the nature of an opportunity to negotiate with DWF in Prudentia's shoes. He did so, secondly, because subsequent events, communications and the evidence as to Sunland's understanding of the nature of the position of the Prudentia parties with respect to plot D17 supported the proposition that there was no misrepresentation inherent in the draft or, to the extent that there may have been, there was no reliance upon it on Sunland's part.[149]

228 Clauses 2, 3 and 7 of the draft implementation agreement make clear in our view that the parties understood the terms of the acquisition of the property and any formal joint venture agreement had yet to be negotiated. If no joint venture agreement was entered, Sunland could buy the property for itself alone and the consultancy fee which was contemplated in those circumstances was payable 'for services provided by Prudentia to Sunland in introducing Sunland to the seller and assisting in negotiations between the seller and Sunland.' Alternatively, if the land could be purchased and a joint venture agreement was concluded, Prudentia was to receive a different amount (called a 'premium') out of the joint venture profits at the conclusion of the development. The agreement as a whole demonstrates that the parties understood that Prudentia had not reached a final agreement with DWF to acquire and develop plot D17.

229 As we have said, one of the points of agreement between Reed and Brown on 20 August 2007 was that: 'Subject to finalising the MOU, Sunland would become the negotiating party with Nakheel.' The implementation agreement directly reflected this agreement in principle. In cross-examination Brown maintained that his understanding was that Reed remained in charge of negotiations with DWF in respect of price but Sunland was intended to be in charge of negotiations in terms of legal terminology and technical and design issues.[150] This is not a distinction drawn either in the points of agreement reached on 20 August 2007 or in the draft agreement.

The Sunland submissions with respect to paragraph 1 of the recitals, or background, to the draft Implementation Agreement or MOU or their final executed emanations in the form of the Prudentia agreement or the Hanley agreement are inconsistent with the express and unambiguous operative terms of the agreement and also inconsistent with the admissible surrounding circumstances known and understood by Brown and Abedian on 30 August 2007 when Brown returned the draft Implementation Agreement the MOU with marked up changes to Reed; when Sunland procured Prudentia's agreement to stand in the shoes of both Prudentia and Sunland to secure Plot D17 for their proposed joint venture; and in the particular circumstances leading to the offer and acceptance of a "walk away" fee which was proposed, unilaterally, by Abedian in terms which cut across entirely and unexpectedly the then agreed progress of the parties' [sic] towards a joint venture. In any event, the significance which Sunland sought to accord to paragraph 1 of the recitals is inconsistent with longstanding authority which is to the effect that if there is any ambiguity in a recital to an agreement and its operative clauses are clear and unambiguous, then the latter, the operative clauses, prevail in the construction of the agreement or instrument.[152]

231 In our view, it is sufficient to say that the statements made in para [1] of the 'Background' recitals in the draft agreement must be read in the context of the further provisions of the draft agreement. For the reasons we have explained, when the document is read as a whole, we do not accept that it could be understood to represent that Prudentia had finalised an agreement to acquire and develop plot D17.

1. On 29 August 2007, Joyce telephoned Brown and during that telephone conversation said to Brown words to the effect that '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'.[153]

1. Joyce said to me that Sunland should come to agreement with Reed as soon as possible at a premium of AED 40/sqft for Plot D17 as there were other buyers around who might offer Reed AED 220/sqft or more for the land. Joyce mentioned the name of a group called 'Patalli', who he said were a Russian group, and said words to the effect of 'they have been pressing Dubai Waterfront for Reed / Prudentia's names. They only need to go to the sales department and will get his name and talk to him'. This indicated to me that the sales team were keen to have an SPA finalised and signed on this plot and if they could introduce one of the Russian buyers to Reed / Prudentia who could be Reed / Prudentia's JV partner the transaction could be concluded faster. My concern was that this could make Reed keener to work with a group like Patalli rather than Sunland as he may be able to obtain a higher premium from that group.
2. Joyce said to me that these groups were not proven developers and are probably speculators but Reed might increase the price if Sunland did not lock in the premium quickly.[154]

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. ...

235 We respectfully agree with this last conclusion.

236 Sunland alleges that the statements pleaded by it to which we have already referred 'amounted to representations':

1. The premises pleaded above amounted to representations ('the Representations') made by Joyce (namely paragraphs 9, 12, 14 and 18) and also made by Reed (namely paragraphs 13, 15, 16 and 17) that:

19.1 Reed or Prudentia or both of them had a right to acquire Plot D17 or the land on which Plot D17 was located;

19.2 Dubai Waterfront could not, without the agreement of Reed or Prudentia or both of them, sell Plot D17 or the land on which Plot D17 was located, or any rights in connection with the development thereof, to Sunland; and

19.3 if Sunland wished to purchase Plot D17 or the land on which Plot D17 was located, or acquire any rights in connection with the development of Plot D17 it had to negotiate and make a contract with Reed or Prudentia or both of them.[157]

237 We have already explained why the trial judge was correct in treating:

(a) the first pleaded representation as the assertion of a representation as to a legally enforceable (and transferable) right to acquire plot D17; and

(b) the three representations as a rolled-up whole, each building logically from the preceding proposition and all dependent upon the first.

238 Remembering that the court's task was to evaluate what a reasonable person in the position of Brown and Abedian (for Sunland) would have understood the relevant statements to mean, assessed in the light of all the surrounding circumstances, in our view the trial judge was correct to conclude that:

(a) none of the oral or email statements of Joyce or Reed amounted to representations that Reed or Prudentia had a right to acquire plot D17. In particular the weight of the evidence supported the following conclusions:

• an initial statement by Joyce on 15 August 2007 that Reed was the 'contact for' plot D17 as alleged in the SFASOC would not amount to a statement Reed or Prudentia had a right to acquire D17;

• Brown's evidence was that he was aware from the outset that the design was not complete and no SPA had been signed;

• Brown's evidence was that Joyce referred to Reed specifically in the context of a potential joint venture;

• the evidence as to what Reed first said to Brown when Brown rang him on 16 August 2007 does not support the conclusion Reed conveyed to Brown that Prudentia or Reed had a right to acquire plot D17;

• the email from Joyce of 16 August 2007 was sent in the mutually understood context of a proposed joint venture and did not impliedly represent Reed or Prudentia held a right to acquire plot D17;

• the discussion between Reed and Brown at Reed's office on 19 August 2007 did not involve or amount to an assertion on the part of Reed or Prudentia of a right to acquire plot D17.

(b) para [1] of the 'Background' recitals to the draft implementation agreement coupled with cl 3(a) did not amount to a representation of a right to acquire plot D17 when read in the context of the document as a whole or in the light of the parties' clear mutual understanding that no agreement for acquisition of the land had in fact been finalised.

(c) none of the statements relied upon amounted to representations that DWF could not without the agreement of Reed or Prudentia sell the land proposed to be comprised in D17. In particular no statement was made by Reed remotely suggesting this. No oral statement was made by Joyce to this effect and the email of 16 August 2007 when understood in context does not represent this.

(d) no statements were made by either Reed or Joyce to the effect that if Sunland wished to purchase plot D17 or the land on which plot D17 was located, or acquire any rights in connection with the development of plot D17 it had to negotiate and make a contract with Reed or Prudentia or both of them.

239 Sunland next alleges that two officers of DWF (not joined as defendants) told Brown on 12 September 2007 that plot D17 might be sold on the open market.

1. On 12 September 2007, Marcus Lee ('Lee'), the Project Control Group Director at Dubai Waterfront, and Anthony Brearley ('Brearley'), the Senior Legal Counsel at Dubai Waterfront made a joint telephone call to Brown during the course of which:

24.1 one or both of them (Brown cannot now recall which) said to Brown words to the effect that they had attended a meeting on the evening of Tuesday 11 September 2007 with Dubai Waterfront's marketing department;

24.2 one or both of them (Brown cannot now recall which) said to Brown words to the effect that 'I am concerned that the marketing people will try to sell Plot D17 and we will have no control over this'; and

24.3 one or both of them (Brown cannot now recall which) said to Brown words to the effect that 'you should immediately put your foot on the plot'.[158]

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]

241 The best evidence of what was said to Brown by Lee and Brearley is the email quoted above which he first forwarded in draft form to Julianne Stringer, in her capacity as General Counsel of Sunland's Dubai branch, on the day of the phone call.

242 As the trial judge found, the plain meaning of that email was that Brown was advised that following finalisation of the redesign of the plot the 'marketing people' at DWF might sell the plot and neither those in Joyce's office nor Brearley would have any control over this.

243 The suggestion that 'we immediately put our foot on the plot' to secure it is only consistent with the view that Prudentia and Sunland had not at that point secured the plot. The statement that it would be necessary to sign a SPA to do this is only consistent with the absence of any existing SPA or other entitlement to purchase the land on the part of Prudentia. The trial judge summarised the effect of Brown's oral evidence concerning the 'put your foot on it' email as follows:

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]

244 The trial judge also referred to Sunland's submission that the reference to securing the plot 'at the terms and conditions you have already agreed' demonstrated a continuing belief on Brown's part that Prudentia had already acquired the plot. In our view, the trial judge was correct to reject this submission as contrary to the plain tenor of the email, as a whole, that the plot had not been secured and that critical terms of the agreement such as price had not been finalised. The dot points contained in the email set out what might be done in order to secure the plot.

245 On 13 September 2007 Brown received an email from Reed responding to Brown's email of 12 September 2007:

On 13 September 2007, I received an email from Reed that responded to my email of 12 September 2007. A copy of that email is now shown to me. This email said:

Hi Dave,

I agree with your approach go for it

I have attached a marked up document for your review which I feel covers of all the issue if you can review this and if as I hope it covers all the issues lets sign it today

I will facilitate communication of this agreement with our Indian partner and have him contact his people in Dubai on the matter please confirm your agreement on above and let's move forward.[161]

246 Later that day Brown sent an email to Lee and Brearley.

We have had a number of discussions with Angus Reed over the last 2 days, and have reached agreement on the terms for a Joint Venture MOU.

Angus has agreed in principle that Sunland can enter into a Sale and Purchase Agreement with DWF using 'Sunland JV Development (BVI) Ltd', and that we will transfer the land to the Joint Venture Company at a later date. Julianne can provide you with the documents on the Sunland Entity now.

Angus has prepared a detailed advice document for you Anthony, which he will forward in the next day or so. Please prepare the SPA Documents, in anticipation of receiving his confirmation ...

Thanks for the update Dave. Good news. I'll speak to anthony to see what he needs. I think he already has the contract prepared

Should be able to go through sunday am [sic]

248 Sunland relied on Brown's email of 13 September 2007 as demonstrating Brown still believed Reed's consent was necessary for Sunland to enter into an SPA. The trial judge rejected this submission:

The further email from Brown to Lee dated 13 September 2007 upon which the plaintiffs' [sic] rely draws attention to the misconceptions attending Sunland's case. The words 'in anticipation of receiving his confirmation' which appear in the 13 September 2007 email refer to confirmation from Reed that Sunland may enter into a SPA with DWF. I accept that whilst this might support a belief by Brown that Reed or Prudentia had some kind of non-legal influence with respect to Plot D17, this falls far short of any basis for believing that Reed or Prudentia had any legal or other right with respect to the land; hence has nothing to do with Sunland's case in this proceeding. [162]

249 Ultimately his Honour concluded:[163]

In my opinion, the position argued for by Sunland is, in the context of the evidence in relation to the 12 September 2007 conversation between Brown and Lee and Brearley and the 'put your foot on it' email, simply implausible in all the circumstances. Additionally, the text of the email is Brown's and it is entirely possible that the latter part of the second [last] dot point is either his assumption or a general reference to the previous discussions he had had in relation to the likely price per square foot that DWF would accept for Plot D17. There is no evidence that Lee or Brearley used these words and, even if they did, this explanation for these words still holds good. As to the 13 September 2007 email from Brown to Reed and the email to Mr David Sinn (in his capacity as a partner of Freehills, the Australian legal advisers to Prudentia) ('Sinn') of the same date, I am of the view that, in the circumstances of the communications between the parties at that time, they are consistent with Reed or Prudentia having agreed that, in the context of proposed joint venture arrangements, Sunland would take over negotiations for a SPA with DWF and that this was in train.[164]

251 His Honour further observed that the evidence demonstrated no basis upon which Reed would have had any reluctance to enquire of Lee and Brearley what was the nature of Sunland's 'hold' if any upon plot D17.[165]

252 His Honour rejected Brown's evidence as to his understanding of the 'put your foot on it' email.

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]

253 His Honour also rejected Abedian's evidence in this regard.[167]

254 Moreover, as was put to Abedian in cross-examination, the terms of the 'put your foot on it' email are plainly inconsistent with the existence of a reservation agreement.[168] Brown's evidence was that he received the 'go for it' email from Reed on 13 September 2007 after they had had a telephone discussion during which Reed said 'I think I can get the property more cheaply than 135'.[169] Brown agreed he knew that at this point no fixed price had been negotiated by Och-Ziff or Prudentia. He also agreed that at this time his impression was that the land could be obtained more cheaply.[170] On 13 September 2007 Brown sent an email to Reed enclosing a further draft of the implementation agreement which included as a key point a 'put option', namely a provision for Sunland to transfer its shares in the joint venture to Prudentia in the event that agreement could not be reached on the final joint venture terms and a further provision for Prudentia to repay Sunland with the initial deposit.

255 Brown received a further email from David Sinn (of Freehills, Prudentia's Australian lawyers) on 13 September 2007, copied also to Reed, advising that the revised implementation agreement terms 'appear acceptable' and seeking confirmation that the implementation agreement 'is now in a form acceptable to Sunland'. On 14 September 2007 Brown sent an email to Sinn noting that 'we have been through the SPA process already with DWF (Nakheel), their suite of documents is well known to us, and we expect the process on this plot to be quite straightforward.' Brown describes the usual process in his witness statement as follows:

A Sale and Purchase Agreement (SPA) is the form of land purchase contract commonly used when buying from a master developer. The SPA sets out the land area, the Built up Area (BUA) and the land price, which is usually calculated as a UAE Dirham rate (AED) multiplied by the BUA. All of the SPAs that I have seen set out payment plans over a number of years.

In Dubai, the price of land is usually based on the square footage price of BUA, which means the price is calculated on the size of the building you can build, not on the size of the land. Normally the BUA on each plot is fixed by the Master Developer as it relates directly to the demand on infrastructure services required in a development precinct. The Master Developer engages consultants who design the utility services (power, water, sewer) based on the aggregate BUA of all the plots in the Master Plan. [171]

256 As his Honour found,[172] Brown's knowledge of the SPA process reinforces the view that he understood that neither Prudentia nor Reed had any enforceable right or interest in plot D17 at any relevant time. On 15 September 2007 Brown received an email from Sinn that set out a response to the 'put option' proposal:

Further to my email last night, I have received comments from our American partners and the board members of Prudentia and the revised draft. As you are aware the put option was only inserted on Thursday and was not previously proposed.

As you are aware it was originally proposed that Prudentia and Sunland would enter into the MOU, use best endeavours to negotiate a JV agreement and then finalise an agreement with the Master Developer for the acquisition of the Property.

As the programme has now been accelerated and it is proposed that Sunland will enter into an agreement with the Master Developer without Prudentia having an interest, our American partners are concerned about Sunland's ability to put the property back to Prudentia in its absolute discretion when Prudentia has not been provided with your feasibility and plans for the development.

Accordingly, I have been instructed that Prudentia can only accept the put option on the basis it has received Sunland's feasibility and other information and has confirmed that it is prepared to proceed on the basis of this information. Attached is a revised draft reflecting the proposed wording for your review and comments.

257 Brown accepted that this was not an unreasonable request.[173]

258 Sunland next pleads elements of continuing negotiations between Brown and Reed and collateral negotiations between Brown and Lee of DWF:

1. In reliance on the Representations and on the telephone conversation pleaded in paragraph 24 above [ie 12 September 2007], Brown proceeded to negotiate with Reed whereby with the consent of Prudentia, an entity related to Sunland would proceed to an expedited purchase of Plot D17 from Dubai Waterfront, and hold the land pending the agreement of joint venture terms between Sunland (or an entity related to Sunland) and Prudentia.
2. On 14 September 2007, Sunland (by email sent from its General Counsel Julianne Stringer to Joyce, Reed and Brearley) informed Dubai Waterfront, Prudentia, Joyce and Reed that the legal entity that would acquire Plot D17 would be SWB.
3. On 16 September 2007, Brown telephoned Reed and in the course of that telephone conversation:

27.1 Brown said words to the effect that 'due to our inability to agree terms and the fact that Dubai Waterfront wants an agreement signed, Sunland offers to purchase Prudentia's rights to Plot D17 for a flat fee of AED20 million'; and

27.2 Reed replied to Brown's said offer with words to the effect that 'I will talk to Nakheel and attempt to negotiate the land price down from AED 135 sq/ft, and if I can, any benefit will be a ''land uplift fee" that must be paid to Prudentia in addition to the AED20 million flat fee'.

1. On or about 17 September 2007, Reed telephoned Brown and in the course of that telephone conversation said words to the effect that 'I succeeded in negotiating a reduction of 15 dirhams per square foot in the price for Plot D17'.
2. On 18 September 2007, Brown (on behalf of Sunland and SWB) met with Lee and Brearley (on behalf of Dubai Waterfront) and relying on the Representations and the matters pleaded in paragraphs 27 and 28 above, made an agreement that:

29.1 if Sunland or SWB agreed with Prudentia to pay Prudentia a fee of AED 20 million plus 15 dirhams per square foot of BUA in return for Prudentia permitting SWB to acquire Plot D17 from Dubai Waterfront at AED120 sq/ft; and

29.2 if SWB agreed to acquire Plot D17 from Dubai Waterfront at AED120 sq/ft; then

29.3 Dubai Waterfront would compensate SWB for the 15 dirhams per square foot payment to Prudentia (being approximately AED24 million), by permitting SWB to construct an additional 200,881.5 square feet of BUA on Plot D17 at a purchase price of AED120 sq/ft (being approximately AED24 million), with payment of the said purchase price being waived by Dubai Waterfront if SWB completed construction of its development on Plot D17 within 4 years of the handover date for Plot D17.[174]

259 It can be seen on the face of the pleading that:

• it was plain that the price payable to DWF for the land had not been finalised at this point in time;

• both Reed and Brown negotiated with DWF as to the pricing arrangements potentially available to the joint venture partners; and

• Brown negotiated with DWF as to additional development rights if the land were purchased by Sunland in conjunction with a collateral agreement to pay Prudentia a fee.

260 On 16 September 2007 Brown forwarded Sinn's email of 15 September 2007 to Stringer and said:

The proposed changes are not acceptable as they require Sunland to pay AED 72m if Prudentia decide not to proceed.

To avoid this requirement, we must have them in from the start.

This requires a Purchase Entity as a JV.

Please review this option and advise the quickest way to proceed.

At this point it was getting very difficult to get a deal with Prudentia as we seemed too far apart in our respective positions.

In a conversation on 16 September 2007, Soheil suggested to me that perhaps Sunland offer an AED 20M premium to Prudentia to obtain the rights to Plot D17. It is not unusual for a buyer to pay a premium to a seller in Dubai in order to secure a site from them.

Accordingly, I called Reed on that date to discuss this. I believe that this was a call to an Australian mobile phone from a Sunland office phone. I said to Reed words to the effect of 'this is all getting too hard. How about we buy your development rights for AED20M and you walk away'.

Reed was interested in what I had to say, but did not appear to be convinced by this offer and said to me that he would talk to Nakheel and see if he could negotiate down the land price. Reed advised that if he could negotiate with Nakheel a better land price than the AED 135/sqft already discussed, any benefit would be considered a 'Land Uplift Fee' that would add to the AED 20M Sunland had just offered to Prudentia. ...

In the following days Reed called me back and advised that the land price would be AED 120/sqft and that he wanted the difference in additional premium. This meant that Sunland would pay Prudentia a further AED 24M. This was calculated by the difference between AED 135/sqft to AED 120/sqft multiplied by the BUA of 1,607,052 sqft.[175]

262 The trial judge considered the evidence as to breakdown in the joint venture arrangements and concluded as follows:

In summary, the evidence establishes that Abedian gave Brown the idea of paying Prudentia a lump sum to remove it from the transaction. This meant that the idea of paying Prudentia a one-off fee in the short term, as opposed to it receiving a payment out of a joint venture some time after 2013, was an idea that came from Sunland and not from Prudentia. In response to this proposal, Reed told Brown that if Reed could negotiate with Nakheel, a better land price than AED 135 per square foot, a fee corresponding to the difference between AED 135 per square foot and the better land price would be payable to Prudentia in addition to the AED 20 million that Brown had just offered. Although he did not say as much to Reed, Brown knew from his conversation with Lee and Brearley on 12 September 2007 that the price of Plot D17 would be AED 120 per square foot. Under Reed's counter-proposal, the total Consultancy Fee payable to Prudentia was the AED 20 million proposed by Sunland plus another AED 24 million (approximately) based on the difference between a land price of AED 135 per sq/ft and AED 120 per sq/ft. [176]

263 On 18 September 2007 Brown met with Lee and reached agreement that DWF would compensate SWB by permitting additional built-up area on plot D17 at a purchase price of AED120 per square foot (being approximately AED 24 million) to offset the premium demanded by Prudentia for the lower price of AED120 per square foot which Reed had negotiated. Brown's evidence in cross-examination was that:

[w]e were communicating with Marcus Lee regularly on what was going on and we told him that we had reached an agreement with Reed and explained that we were paying a premium and that he had to negotiate the final price and that there would be an extra fee based on the difference from 135 down to whatever the figure was, and once Reed told us what that figure was, we communicated that to Lee.[177]

264 Brown's evidence was that Lee offered to compensate the land uplift fee by additional BUA and said he would confirm this in writing subject to discussing the letter with Brearley.[178]

265 Contrary to Sunland's case, Brown admitted in the course of cross-examination that he told the Dubai prosecutor[179] that Lee offered the additional BUA free of charge provided Sunland built up the whole lot and developed it within five years.[180] Brown also admitted that this statement was 'not entirely correct, no'.[181] Brown also admitted that he had told the Dubai prosecutor that the additional BUA was offered because of the design work Sunland had done on the site and that this was 'not exactly' reflected in the draft letter concerning the BUA offer and 'not complete information'.[182]

266 On 17 September 2007 Brown sent an email to Jason Mahoney (a Sunland employee) copied to Sahba Abedian and to Soheil Abedian and attaching a feasibility calculation based on Sunland buying the site itself and paying Reed an 'Introduction Fee of AED 44m, and they walk away.' The estimated return based on getting bonus floor area for AED 24m of the introduction fee was 26 per cent with AED 590 million profit plus normal fees.

267 The notion of an introduction fee is ordinarily fundamentally different from a fee payable for the acquisition of an interest in the land.

268 Stringer subsequently described the fee in similar terms as a '"spotter's fee" premium ... for the guys that introduced this deal.' Brown prepared a further feasibility study for D17 dated 18 September 2007 which showed that with the extra BUA, even allowing for a 'consultancy fee' payable to Prudentia, Sunland had a potential return of 37.3 per cent. He conceded in cross-examination that this was a 'phenomenal' return.[183]

1. In reliance on the Representations, and the matters pleaded in paragraphs 27 to 29 above:

30.1 on 19 September 2007, SWB executed an agreement with Prudentia ('the Prudentia Agreement') which:

30.1.1 was signed on behalf of Prudentia by both Reed and Nigel Wimble Sharp (who at that time was a director of Prudentia);

30.1.2 Prudentia's solicitor David Sinn ('Sinn'), a partner of Freehills solicitors in Melbourne, had forwarded to Brown by email for execution;

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

30.1.4 provided in clause 2 of the operative part that '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 [Plot D17] with [Dubai Waterfront LLC]'; and

30.1.5 defined the total Consultancy Fee as being AED44,105,780.

30.2 Sunland and SWB negotiated with Dubai Waterfront the remaining terms (that is, other than the price already agreed as pleaded in paragraph 29 above) on which Plot D17 would be purchased; and

30.3 Sunland made arrangements for the payment to Prudentia of approximately AED44 million.[184]

270 For like reasons to those we have given with respect to the recital contained in the previous draft agreements, the recital contained in the 'Background' introduction to the agreement quoted above could not have been understood as representing that Prudentia had a right to acquire plot D17. Indeed the September negotiations had made manifestly clear that Sunland understood Prudentia had no such right.

271 On the appeal, Sunland emphasised the terms of cl 2 of the operative part of the agreement. In our view, the trial judge was correct to conclude that the reference to 'its right to negotiate and enter into a plot sale and purchase agreement' read in context was a prospective right relating to future dealing and did not imply an existing right to purchase. In turn the provisions of cl 2 were buttressed by an exclusivity condition. Clauses 5 and 6 provided:

5 Exclusivity

The Parties agree that, except as expressly contemplated in this agreement, they will not, either alone or with any other entity, participate or be involved in the acquisition or development of the Property. Notwithstanding this clause the parties acknowledge that provided Sunland has paid Prudentia the Consultancy Fee in Clause 3 Sunland shall be entitled to develop the property.

6 Duration of exclusivity and confidentiality obligations

The Parties must observe the obligations of exclusivity and confidentiality expressed in this agreement for 3 years from the date of receipt of the Confidential Information, notwithstanding termination of this agreement.

272 The total consultancy fee was calculated as follows:

Consultancy Fee the sum of AED 20 million plus an additional fee of AED 24,105,780, calculated as the difference between AED 135/Ft2 and AED 120/Ft2 (i.e. AED 15/Ft2 times the BUA of 1,607,052 Ft2) which will be the price in the Plot Sale and Purchase Agreement between Sunland and the Master Developer. The total Consultancy Fee is AED 44,105,780.

273 Brown sent an email to Reed after receiving the following comments from Abedian seeking to clarify the basis of the consultancy fee:

DAVID, CLAUSE 3 IS NOT CORRECT SINCE IT READS THAT SUNLAND SHOULD PAY THE CONSULTANCY FEE + ANY AMOUNT THAT IS NEGOTIATED FROM THE ORIGINAL PRICE OF AED135 PSFT. ALSO IN AN EARLIER CLAUSE IT STATES THAT THE CONSULTANCY FEE IS AED44M. THIS MEANS THAT WE HAVE TO PAY AED44M + THE DIFFERENCE BETWEEN AED136 PSFT TO AED120 PSFT.

CLAUSE 3 SHOULD READ ...THAT THE CONSULTANCY IS CALCULATED BASED ON AED20M BASE FEE + ANY AMOUNT NEGOTIATED DOWN FROM AED135DHS PSFT.

274 Brown then exchanged a number of emails and had a series of telephone conversations with Reed regarding the payment of the proposed consultancy fee. It was eventually agreed Sunland would deposit a fee in the trust account of its Dubai lawyers who would hold it in escrow until the transaction was finalised. On 19 September 2007 Prudentia's solicitor confirmed this arrangement by email and forwarded a copy of the implementation agreement executed on behalf of Prudentia. Brown and Abedian then signed the agreement.

275 Fundamentally, the agreement required Prudentia to withdraw its interest in plot D17. As already noted, in an internal company communication on 17 September 2007, Brown referred to the payment of an 'introduction fee' for Prudentia to 'walk away' and on 19 September 2007 that Stringer referred to the payment as a '"spotter's fee" premium ... for the guys that introduced this deal'.

276 The trial judge concluded, after referring to this and other evidence of the manner in which those associated with Sunland had described the payment, as follows:

In light of this evidence, I am of the view that Abedian's agreement during cross-examination that Sunland had 'paid to remove Prudentia from the transaction', is an accurate statement of the position, which was that given the profit potential of the Plot D17 development, Sunland wanted the project for itself and was prepared to pay Prudentia simply to 'go away'. Further, it was prepared to allow this to happen, and hoped that this would happen, without any thought of consideration flowing from Prudentia (or ultimately, Hanley) in terms of anything in the nature of a legal or other right with respect to Plot D17, proprietary, contractual or otherwise. It was quite simply a payment made by Sunland to Prudentia in consideration of its agreement to 'go away' - regardless of whatever connection or rights it may have had to or with respect to Plot D17, matters which Sunland then regarded as irrelevant. The commercial driver for this is clear when Brown's projected rate of return - even factoring in the payment to Prudentia - on the development of Plot D17 is considered. [185]

277 For reasons set out at [209]-[211] of his judgment, his Honour rejected the Sunland submission that the use of the word 'premium' in email correspondence between Reed and Brown and in other documentation justifies the inference that Reed and Prudentia regarded their interest in plot D17 as more than something in the nature of a preferred negotiating position. We agree that the use of the term 'premium' must be understood in the context of the transaction as it is otherwise evidenced and that, so understood, it does not support the inference contended for.

278 On 17 September 2007 Brearley sent an email to Stringer attaching a draft SPA for plot D17.[186] Brown's evidence was that this was a standard agreement and constituted 'the first step in finalising the terminology.'[187] Brown was 'on the way to securing D17 on Sunland's behalf.'[188]

1. On or about 26 September 2007, Hanley also retained Sinn and instructed him:

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]

280 The Hanley agreement, containing the terms alleged, was executed by SWB on 26 September 2007. The full terms of the 'Background' recitals were:

1. Hanley has reached agreement with the Master Developer to acquire and develop the Property.
2. Sunland has proposed to Hanley that it could develop the property into two residential towers and other ancillary uses.
3. This Implementation Agreement records the arrangements agreed between the Parties regarding the assignment of the development rights for the property from Sunland to Hanley.

281 No documentation was executed purporting to transfer a right of any kind from Prudentia to Hanley. Nor, importantly, did Sunland ask for any evidence of such a transfer. As the trial judge accepted, the circumstances of the substitution of Hanley demonstrate that the parties understood that Hanley had not in fact reached agreement with DWF, nor had it in fact acquired a right to purchase plot D17 from Prudentia. The terms of paras [2] and [3] further demonstrate the fictional character of the background described. What was contemplated was not that Sunland would acquire development rights but that Sunland would be placed in a position to negotiate the acquisition of plot D17 without interference from Prudentia. Further, the reference to an assignment from Sunland to Hanley exemplifies the confusion and artificiality of the recitals. The Hanley agreement was again relevantly expressed in the operative part as being that 'in consideration of the payment of 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 [DWF].'

282 Once again, the agreement was one to give Sunland a right to negotiate a purchase, not one to transfer a right to purchase. It was a right to future dealing. Once again, it was supported by exclusivity provisions in like terms to the concluded Prudentia agreement.

283 In summary, following the initial draft implementation agreement forwarded on 23 August 2007:

(a) DWF officers made clear to Brown on 12 September that plot D17 might be sold on the open market to a party other than Prudentia or Sunland;

(b) Brown's 'put your foot on it' email makes clear that he understood neither Prudentia alone nor Prudentia and Sunland as joint venture partners had secured plot D17 and that to do so they needed to sign a SPA;

(c) there was no bar to Sunland making further enquiry of DWF as to the status of Prudentia;

(d) it was Sunland that terminated the joint venture negotiations and put the proposal for the immediate payment of a fee to Prudentia upon Prudentia walking away from the deal;

(e) the fee payable was in substantial part based on a reduction negotiated by Reed in the price per square foot of plot D17;

(f) this component of the fee was offset by a collateral arrangement Brown negotiated with DWF for increased development rights;

(g) the fee was contemporaneously characterised by Brown as an 'introduction fee' and a 'consultancy fee' and by Sunland's in-house Dubai counsel as a 'spotter's fee';

(h) the 'Background' recitals of the Prudentia agreement and of the Hanley agreement are not to be read as representations that Prudentia had a right to acquire plot D17; and

(i) the iterations of the Prudentia agreement and of the Hanley agreement embody an agreement to transfer exclusive rights to negotiate and enter into a future purchase of plot D17. They do not reflect an agreement to transfer an existing right to acquire plot D17 to Sunland.

284 Our conclusion accords with that of the trial judge. Sunland's case at trial was that Joyce and Reed represented to it that Reed or Prudentia had a legally enforceable right to acquire the land. Yet the evidence Sunland adduced failed to establish any such representation. Nor did the evidence establish any representation that DWF could not, without the agreement of Reed or Prudentia, sell plot D17 to Sunland or that, if Sunland wished to purchase the plot, it first had to make a contract with Reed or Prudentia or both.

285 Accordingly, Sunland's statutory misleading and deceptive conduct and false representation causes of action,[190] all founded upon proof that the pleaded representations were made, fell at the first hurdle. Similarly, Sunland's cause of action in deceit, founded upon proof of the same representations, also fell.

286 Those conclusions are enough to dispose of the appeal. But it is desirable to deal with the arguments on falsity and reliance for at least two reasons. First, as a matter of completeness and out of respect to Sunland's submissions on these points. Secondly, because doing so helps expose a wider, unpleaded case that Sunland sought to advance at trial and which the trial judge determined, albeit unnecessarily.

287 Sunland pleaded that the representations that it claimed had been made to it were false, as set out in para [21] of the SFASOC, in that:

21.1 neither Reed nor Prudentia had a right to acquire Plot D17 or the land on which Plot D17 was located;

21.2 Dubai Waterfront could (without the agreement of Reed and Prudentia or either of them) sell Plot D17 or the land on which Plot D17 was located, and the right to develop Plot D17, to Sunland or any other person; and

21.3 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.

288 Set out above[191] are the particulars which Sunland gave of the falsity of the alleged representations. We referred to those particulars earlier because they were a pointer to the true character of the 'right to acquire' the subject of Sunland's first pleaded representation.

289 As can be seen from the particulars, they purport to particularise a fact (namely, that neither Prudentia nor Reed owned plot D17, nor could they sell it) by reporting the oral assertions of various Dubai officials. No evidence was led at trial in support of the facts said to be asserted by those Dubai officials, either by calling them (assuming their evidence could have been admissible) or by any other means. Sunland argued it did not need to lead any evidence of the facts particularised, or otherwise, in relation to the falsity of its pleaded representations. That was because, so it said, it had the benefit of admissions made by the Prudentia parties, and by Joyce, which established falsity.

290 Once again, the need for precision as to what Sunland was asserting by its pleaded representations was exposed by this argument.

291 Prudentia and Reed answered Sunland's pleading of falsity in this way: they admitted each of paras [21.1], [21.2] and [21.3], subject to three qualifications. The first qualification was that, despite the admission, they denied there was any false representation made in respect of the matter alleged in each paragraph. Secondly, and specifically in respect of para [21.3], the admission was 'on the understanding that what is therein referred to is a concept of strict legal necessity as opposed to commercial and/or practical reality' (our emphasis). The third qualification was that each admission was made subject to para [21.4], which read as follows:

21.4. In further answer to the whole of paragraph 21, they say:

(a) at no material time did they 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;

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

(c) at all material times, the final reconfiguration by Dubai Waterfront of an existing vacant plot known as 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;

(d) at all material times, the fact was and Sunland Group knew, that Prudentia's interest in Plot D17 was as a preferred negotiator with Dubai Waterfront for the right to purchase and develop Plot D17. [192]

292 By para [21.4] of their defence, Reed and Prudentia emphasised that although they admitted they had no right to acquire the land, that DWF could sell it to Sunland without their agreement and that Sunland did not need to make a contract with them before purchasing the land, they never represented that they held any enforceable legal interest in the land. In other words, Reed's and Prudentia's pleading took the view of Sunland's pleading of the representations that we have affirmed to be correct.

293 On the analysis we have adopted, this defence was, until para [21.4(d)], directly responsive to the case brought by Sunland against them. That is, until para [21.4(d)] it responded only to the assertion that they had falsely held themselves out to have a legally enforceable right to acquire the land, one which constituted a legal impediment to DWF selling the land to Sunland without their prior agreement.

294 But because of the potential ambiguity in Sunland's pleading, Reed and Prudentia went further. Having denied that they held themselves out as having any legally enforceable right to acquire the land, they nevertheless asserted in para [21.4(d)] that Prudentia had an 'interest' in the land as 'preferred negotiator' with DWF for the right to purchase and develop it.

295 It is important to be clear about the status of this allegation. Reed's and Prudentia's denial of the representation that Sunland asserted was sufficient to put Sunland to its proof on that issue. Sunland has failed on that proof. Except by indirect means, the claim that Prudentia had the status of preferred negotiator did not bear upon the issue whether Prudentia held itself out to have a higher interest, or in fact held that higher interest. Reed's and Prudentia's admission of the propositions of falsity in para [21] of the SFASOC would have assisted Sunland had it been able to prove that the representations were in fact made. But those admissions were of no assistance given that Sunland did not prove the representations. And, as we have already noted,[193] Sunland itself argued that Reed's and Prudentia's asserted preferred negotiator status was simply not responsive to the claim that they held no right to acquire the land. In that respect, Sunland was quite correct.

296 By 'indirect means' we refer to the use made of the probability that Prudentia did occupy a commercially valuable negotiating position with DWF for plot D17 when determining what representations were proven. As we have shown, it was rightly taken into account as one of a number of contextual circumstances when assessing the way in which the written and oral statements, pleaded by Sunland, were objectively to be understood.

297 Joyce's response to Sunland's pleading of falsity was, in substance, similar to Reed's and Prudentia's, although pleaded in a distinct manner. He responded (with our emphasis) :

21. As to paragraph 21, he:

(a) admits that:

(i) Dubai Waterfront wished to select the purchaser of Plot D17 based on whether the purchaser would facilitate construction activity on the site and it was, at all material times, a matter for Dubai Waterfront to decide to whom it wished to sell Plot D17;

...

(ii) Dubai Waterfront could (without the agreement of Reed and Prudentia or either of them) sell Plot D17 or the land on which Plot D17 was located, and a right to develop Plot D17, to Sunland or any other person;

(iii) he was not aware of any legal necessity 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 D17.

(b) says further, however, that Joyce and Dubai Waterfront were concerned as a matter of ethical business practice and commerciality to avoid:

(i) 'gazumping' or the appearance of 'gazumping' by Dubai Waterfront and would rarely consider it appropriate for Dubai Waterfront to negotiate with another secondary developer once preliminary development and planning approval and a draft sale and purchase agreement had been given to a particular secondary developer; and

(ii) becoming embroiled in any dispute between Sunland and Prudentia that might arise if the joint venture negotiations between those parties, or their related parties, were to break down;

(c) otherwise denies the allegations therein.[194]

298 Once again, Joyce's pleading contains some qualified admissions of Sunland's propositions which it claimed showed that the pleaded representations were false. The main qualification is seen in para [21(a)(iii)] where Joyce admits he was not aware of any legal necessity for Sunland to first reach agreement with Reed or Prudentia before buying the land from DWF. But the balance of his pleading, again, points to something falling short of a legal impediment to dealing with Sunland, namely a commercial and policy restraint upon DWF dealing with another secondary developer (for example, Sunland) after preliminary development and planning approval had first been given to a different developer (namely, Prudentia).

299 The trial judge dealt with the question of falsity in a way that reflects the confusion created by the ambiguity and uncertainty in the case presented by Sunland. His Honour noted Sunland's submission that it did not have to prove falsity because of the admissions made by the defendants.[195] After setting out the qualified nature of the admission made by Reed and Prudentia, the judge continued:

On this basis, and for the reasons discussed elsewhere, the Sunland submission that "it is uncontroversial that neither Reed nor Prudentia had any 'right' in relation to Plot D17" 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" does not survive proper analysis of the pleadings.[196]

300 The judge's observation in the first sentence is, with respect, correct in answer to a submission that neither Reed nor Prudentia enjoyed any 'right', assuming that phrase could encompass something as broad as the status of preferred negotiator. There, the judge was responding to a submission about any 'right', rather than a 'right to acquire'. The proposition in the second sentence is a little more difficult to follow, although the difficulty may be a consequence of the clumsiness of the submission his Honour was responding to. If the submission meant that having the status of preferred negotiator does not contradict the proposition that neither Reed nor Prudentia had a right to acquire the land, the submission was correct. And it was correct for the reasons we have explained before: the right to acquire was a legally enforceable right, not the mere status of preferred negotiator.

301 But the submission was expressed clumsily. And it is not so clear that his Honour understood it in the way we have just surmised.

302 As we have explained, we agree with his Honour's ultimate conclusion that it was necessary for Sunland to establish a representation with respect to a legally enforceable right to acquire plot D17.[197] Neither Joyce nor Prudentia themselves suggested that they had such a right; in fact, they admitted they did not. Thus, we do not think the judge was correct if he is to be taken as saying that the respondent's admissions were not sufficient to establish the falsity of the pleaded representations.

It was for Sunland to prove that Prudentia or Reed had no "right" over Plot D17. ... 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.[198]

304 Although each of those statements is correct, it did not follow from them that Sunland had failed to establish the falsity of the representations. The pleaded representations, correctly understood, were admitted to be false so Sunland was not required to call evidence on that allegation. Sunland's real problem, as we have said, was that it failed to prove the representations at all.

305 However, despite his Honour's ultimate conclusion as to the narrow case to which Sunland was confined, he nevertheless did address a wider case. That is, he went on to consider whether Reed or Prudentia falsely held themselves out to have a 'right' in relation to plot D17 falling short of a legally enforceable right to acquire the land.[199] Some potential for confusion is introduced by this discussion. But we think the proper analysis is that his Honour was addressing the unpleaded, wider case in the event a different view could legitimately be taken of the case Sunland was advancing. So much appears clear from his view that 'for Sunland to establish its case it was necessary for it to establish the Representations with respect to a legally enforceable right', and then continuing that '[i]n any event the only non-enforceable "right" ("contractual" or otherwise) which Sunland's case conceivably established...was that of a "right" to negotiate or a "preferred negotiating position"'.[200]

306 In any event, as we have remarked, the question of whether Prudential occupied a commercially valuable negotiating position had some contextual relevance to the issue of what representations were made; and it was also relevant, as will be seen shortly, in the trial judge's reasoning on the question of reliance.

(a) referred to Reed's and Prudentia's further and better particulars[201] which claimed that as 'preferred negotiator' Prudentia occupied a commercial position in negotiating for plot D17 in precedence to that occupied by Sunland;[202]

(b) adverted to the evidence called by Sunland from Duane Keighran, a solicitor admitted to practice in 2003 who began property law work in Dubai in March 2006. Keighran's opinion, which was admitted into evidence without cross-examination, 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';[203]

(c) set out Brown's evidence on the subject, namely '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';[204]

(d) found that the general tenor of the 'put your foot on it' email of 12 September 2007 was 'entirely consistent' with the limited nature of the 'hold' Reed or Prudentia possessed, a reference it seems to their claimed 'preferred negotiator' position;[205]

(e) found that the only 'right' the evidence 'conceivably established' as the subject of any representation was a right to negotiate or a preferred negotiating position which, as anticipated in the Prudentia and Hanley agreements, Sunland ultimately availed itself of when it was able to negotiate the purchase of plot D17 from DWF;[206] and

(f) concluded that Sunland had 'failed to adduce evidence which casts doubt on the apparent preferred negotiation position enjoyed by Prudentia in relation to plot D17', but instead that its case 'evidences that Prudentia did hold such a position in relation to plot D17'.[207]

308 The first of his Honour's conclusions summarised in (f) above is, on its face, somewhat curious. The judge was certainly aware of the opinion of Keighran and the evidence of Brown on the subject; he had set it out only a few paragraphs earlier. Further, his Honour had previously set out Keighran's evidence on the subject more fully together with extracts from a letter written by another legal practitioner with which Keighran agreed, concluding:

Thus, the evidence establishes that a master developer, such as DWF, might well choose not to negotiate with every person who expressed an interest in a particular piece of land and might generally try and negotiate instead with an interested party, such as Prudentia, if that party was an experienced developer which the master developer wanted in the project.[208]

309 His Honour may have intended to say that on the whole of the evidence, notwithstanding the opinion of Keighran or the evidence of Brown, he was persuaded that Prudentia did hold a position of a preferred negotiator in relation to plot D17. Such a finding, in our opinion, could have been readily justified. Indeed we ourselves concluded that what was passed under the terms of the Hanley agreement was a right to negotiate a purchase, not a right to purchase.[209]

310 Essentially, the question whether Prudentia occupied a negotiating position with respect to plot D17 in precedence to others was a question of fact for the trial judge to determine based upon all of the evidence. It is doubtful in our view whether Keighran's opinion[210] was either germane to that question or, if it was, that it contradicted Prudentia's claim. First, his proposition was initially couched in terms of 'under Dubai or UAE law', yet the negotiating position in question was not said to be one proceeding from any law. It is then not clear how the addition of the words 'either as a matter of commercial practice or as a matter of law' operates in conjunction with his first limitation. And his opinion is clouded further by his additional evidence. After referring to the 'very heated' property market in Dubai in 2007, and the problem of gazumping, Keighran continued :

As a matter of commerciality, it may be that a master developer may elect not to negotiate with another party. However, in my experience, in that situation the master developer would require a security deposit to be paid for the plot.

311 Several things flow from those further statements. First, they logically undermine the apparent clarity of his earlier statement that there was no concept of 'preferred negotiator'. If a developer elects not to negotiate with other parties, the practical result is a preference for the party it will negotiate with. Secondly, it confirms that the opinion is confined by Keighran's particular experience. In the end, his opinion can only be a statement to the effect that, in his experience, he has not observed or seen a preferred negotiating position without a payment of a security deposit.

312 Viewed in that way, it was not surprising that the trial judge assessed for himself, upon the evidence before him, the existence or non existence of a preference allowed by a particular seller to a particular suitor in the particular circumstances that existed, rather than have that issue determined or even largely influenced by an opinion of the kind given by Keighran. And as far as Brown's evidence was concerned,[211] it was at best evidence of his own conclusionary belief based upon the same facts that his Honour had before him. In those circumstances, although it would have been desirable that the trial judge explain how he was able to reach his conclusion despite the evidence of Keighran and Brown, we do not consider that his failure to do so amounts to error.

(a) although the respondents did admit the falsity of the representations that Sunland pleaded and tried to prove at trial, those representations were not proven to have been made;

(b) attention was given, out of an abundance of caution, to the proposition that Prudentia held a commercial position in precedence to Sunland as DWF's preferred negotiator for plot D17 in case the trial judge's the primary view of the meaning of Sunland's pleaded representation was not correct;

(c) as it turned out his Honour's primary view was correct;

(d) nevertheless the finding that it was not false to represent (had it been represented) that Prudentia held a right as preferred negotiator did not involve or disclose error.

314 We now turn to the issue of reliance and causation.

Did Sunland rely upon any false representation when paying the fee to Hanley?

315 Logically, if Sunland has failed to prove the representations it alleged were made to induce it to enter the Hanley agreement and thereby suffer loss, then its case on causation of loss (namely, reliance) must also fail. That is, having failed to prove the misleading and deceptive conduct or misleading representations in contravention of any of the statutory provisions it relied upon, it cannot sustain an argument that it suffered any loss and damage 'by' such conduct.[212]

316 Nevertheless, although the characterisation of the conduct and the question of causation is logically distinct, in practice there is an overlap in the resolution of these questions.[213] In this matter, a consideration of Sunland's case on reliance demonstrates the interconnectedness between it and the findings made in relation to the character of the conduct itself.

317 There is no real dispute about the principles applicable to the question of causation where the impugned conduct consists of a representation. The following principles apply:

(a) 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 loss;[214]

(b) if the representee believes any part of the representation, the representor 'does not escape liability because the representee did not believe the representation in full';[215]

(c) if the representee's desire to own what was for sale leads to him discounting 'doubts and suspicions' that might otherwise hold him back from acting, or giving some credence to the representation which would not otherwise have been given, the representee's self-induced gullibility is no defence to the representor;[216]

(d) it is no answer for the representor to establish that the representee acted carelessly or unreasonably in believing the truth of the representation,[217] or could have discovered the truth by making proper inquiries;[218]

(e) determination of the cause 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. For example, the representation may be disbelieved by the addressee;[219]

318 Sunland pleaded causation of its loss and damage in the following way:

(a) between 16 August 2007 and 12 September 2007, Brown relied upon the three pleaded representations to negotiate with Reed and Prudentia to undertake the joint venture to purchase and develop plot D17;[220]

(b) Brown relied upon the three pleaded representations and the telephone conversation preceding the 'put your foot on it' email (with Lee and Brearley) to negotiate with Reed the notion that Sunland would purchase plot D17 and hold it pending the joint venture agreement;[221]

(c) Brown relied on the three pleaded representations and his further telephone conversations with Reed on 16 and 17 September 2007 to agree with both Prudentia and DWF the necessary elements of the agreements they were soon to formalise;[222]

(d) in reliance on the three pleaded representations, the two telephone conversations and the agreements just mentioned, Sunland executed the Prudentia agreement on 19 September 2007;[223] and

(e) in reliance on the three pleaded representations and the other matters referred to in the preceding sub-paragraph, on 26 September Sunland discharged the Prudentia agreement, entered the Hanley agreement and entered the agreement with DWF to purchase plot D17, and on 1 October 2007 paid the consultancy fee to Hanley.[224]

319 Without going through their defences point by point, Reed's and Prudentia's case in answer to Sunland's allegations was, first, to deny that Sunland relied upon any of the three pleaded representations to take any of the steps alleged. Secondly, they pleaded that the transferred 'right' for which Sunland paid the consultancy fee under the Hanley agreement, was, as Sunland well knew, Prudentia's interest in plot D17 as DWF's preferred negotiator, as pleaded by Reed and Prudentia.[225]

320 Joyce similarly denied that Sunland relied on any of the three pleaded representations in the manner alleged. Additionally, he alleged that at all relevant times Brown and Abedian knew that Prudentia had not purchased plot D17; that they were aware that Nakheel and/or DWF could sell plot D17 to a purchaser other than Prudentia; that by 29 August they were concerned that Nakheel or DWF might sell plot D17 to a party other than Sunland and Prudentia; and that at all relevant times Sunland could have checked the legal and/or ownership status of plot D17 by making inquiries of DWF or the Nakheel sales department.[226]

321 Critically, on the topic of reliance, the trial judge made the following findings:

• Brown's 'put your foot on it' email of 12 September 2007 contradicted his account that he believed that Reed or Prudentia held or controlled the site; [227]
• Sunland refrained from making enquiries of DWF about Reed or Prudentia's hold over plot D17;[228]
• Brown was aware no price had been fixed for the purchase of plot D17;[229]
• neither Brown nor Abedian was concerned about whether the payment was made to Hanley or to Prudentia;[230] and
• it appeared Brown thought that whatever priority existed regarding plot D17, that priority lay with Och-Ziff;[231]

(b) second, and having regard to those findings, neither Brown nor Abedian thought that Reed or Prudentia had any binding agreement or legal interest in respect of plot D17;[232] alternatively, it was not important to Brown or Abedian that Prudentia or Reed had any such right;[233]

(c) third, Sunland paid the money to remove the Prudentia parties from the deal so they would walk away from plot D17 and not compete with Sunland to acquire it;[234]

(d) fourth, given the profit potential of the development of plot D17, it remained an attractive commercial proposition even after the payment of the Prudentia/Hanley fee;[235] and

(e) fifth, Prudentia's negotiating position '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'; [236] so that

(f) sixth, even if, contrary to his findings, the pleaded representations were made and were false, Sunland did not rely upon them to enter the agreements and pay the Hanley fee.

322 Sunland challenged his Honour's findings and reasoning in a number of ways. We have already affirmed a number of the trial judge's findings which meet some of Sunland's arguments: we affirmed the rejection of any continuing belief on the part of Brown, at 12 September 2007, that Prudentia had 'secured' the plot[237] or that, at 13 September 2007, Brown still believed Reed's consent was necessary for Sunland to enter into an SPA for the land;[238] and we endorsed the finding that at no relevant time did anyone at Sunland believe that Prudentia or Reed had a right to acquire or an enforceable interest in plot D17.[239]

323 We will list and briefly address a number of further specific arguments.

324 First, Sunland argued that the very fact of its entry into the Prudentia and Hanley agreements supported a finding that it relied, at least, upon the third pleaded representation, namely that if it wished to purchase plot D17 it first had to negotiate and make a contract with Reed or Prudentia, or both. It argued that no other plausible explanation for Sunland entering those agreements was advanced, nor was one accepted by the trial judge.

325 Allied to this, Sunland argued that the trial judge misconstrued the central clause in the Hanley agreement that stated that the consultancy fee was paid in consideration of Prudentia transferring to Sunland 'its right to negotiate and enter into a plot sale and purchase agreement' (our emphasis). Sunland argued that the trial judge's alleged misconstruction pervaded other aspects of his reasoning, such as his finding that the negotiating position of Prudentia with DWF was important and of great value to Sunland, and that it was that position, and nothing else, which Sunland contracted to obtain.

326 We reject these arguments. For reasons given above, we rejected the proposition that the third pleaded representation was ever made.[240] Further, contrary to Sunland's submission, the trial judge did advance reasons why Sunland entered the agreements other than under a belief that it could only purchase the plot by doing so. Those reasons are perhaps most succinctly expressed in a passage extracted above,[241] in which his Honour found that Sunland wanted the project for itself and was prepared to pay Prudentia simply to 'go away', driven by the prospect of a very substantial commercial return. We see nothing implausible in the explanation for the transaction as found by his Honour. And having already construed the central clause of the Hanley agreement as the transfer of a right to negotiate to purchase, and not a right to purchase,[242] we have disposed of the argument that the judge misconstrued the agreement.

327 Next, Sunland challenged the trial judge's characterisation that the consultancy fee was paid to Prudentia to secure Prudentia's (and Reed's) 'non competition' for the site. It argued that not only did that conclusion not reflect the plain language of the Hanley agreement, but it erroneously assumed that Prudentia was genuinely competing for the site. Sunland argued there was no evidence to support a conclusion that it was genuinely competing for the site; in fact there was evidence to the contrary which the trial judge failed to consider. That evidence consisted of the evidence of the money flow documents and of the forging of documents. A proper consideration of that evidence, so it was said, should have persuaded the judge that Prudentia's interest in the site was not genuine, but contrived to exact a payment from Sunland.

328 It can be seen that this argument takes issue with the finding just mentioned, namely that the fee was paid for Prudentia to 'go away'. In large measure, the argument is addressed by the chronological survey we have undertaken of the negotiations between the parties, and what they were seeking to achieve. Briefly, DWF sent Prudentia a draft SPA on 14 August 2007. It entered negotiations with Sunland for a joint venture to develop the land, exchanging drafts of an agreement for that purpose. It was still negotiating with DWF around 12 September for a reduction in the price of the land, while the joint venture negotiations were still on foot. Prudentia ceased being involved in the purchase when Sunland volunteered to pay it money to desist. Without more, these facts suggest that Prudentia was genuinely interested in purchasing the land.

329 Sunland's real attack on the 'genuine' nature of Prudentia's interest seeks to revive and utilise the failed 'scheme' hypothesis. We have already rejected any reliance upon that argument, and consequently reject its arguments based upon suggestions that Prudentia was pretending an interest in the land.

330 Sunland similarly relied upon an argument that the trial judge was wrong not to tackle the money flow documents and the allegations of forgery, in support of a separate challenge to the judge's reasoning on the question of reliance. It drew upon the principle that a court might more readily infer that a person was induced to act in reliance upon a representation if it can be shown that the representor intended that person to so rely and act.[243] Sunland's argument was that when assessing the issue of reliance the judge should have taken account of the 'scheme' and forgery evidence as evidence of an intention on the part of Reed and Joyce to induce Sunland to do the very thing it did.

331 There is no need to address this argument further, having already considered it at length.[244] For the reasons we have given the judge did not err, on the issue of reliance, by disregarding the so called 'money flow' documents or documents alleged to have been forged. Alternatively, if there was any error, it had insignificant consequence.[245]

332 In addition to the foregoing arguments, Sunland alleged that the trial judge's reasoning was infected by a number of errors:

(a) Sunland's inability to identify or articulate the nature of the right did not preclude a finding that it relied upon the representation as alleged;

(b) the importance to Sunland of a commercial return on its investment and the fact that it owned the adjoining plot to plot D17 did not negate a conclusion that it relied upon the representation;

(c) Sunland's failure to make independent enquiries about the nature of the right was both wrong in fact and misused by the trial judge in point of principle;

(d) the fact that Sunland knew there was no SPA and that no payment had been made by Prudentia or Reed on the plot did not preclude the possibility it may still have relied upon the existence of a 'right' - other legal rights existed in the absence of an SPA or payment, such as an option to purchase, a contractual right to negotiate or a promissory estoppel;

(e) the 12 September 2007 'put your foot on it' email did not dispel the effect of the later representation contained in the recitals to the Prudentia agreement;

(f) the substitution of Hanley for Prudentia as the contracting party did not dispose of the notion of Prudentia having control of or a right over plot D17; and

(g) a belief that Prudentia's control of plot D17 operated via Och-Ziff was consistent, not inconsistent, with the notion that Sunland relied upon the representations.

333 The judge considered the precise identification of the notion of control with respect to plot D17 to be an issue of critical importance. In turn, 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'.[246] Yet, his Honour found, there was an inability on the part of Brown and Abedian to identify exactly what it was that Prudentia had that gave it that 'control' or to identify the nature of the interest it held.[247]

334 Whatever it was, as Sunland knew, it did not involve the holding of an SPA; no payment had been made by Prudentia to DWF; the plot was not even created; no document was sighted evidencing any control, nor was one ever sought; and, as at 12 September 2007, it was evident the land was not 'secured' to Prudentia. The oral evidence of Brown and Abedian led the judge to conclude that they did not know the precise terms of the 'control', but 'merely speculated as to the nature of any arrangement involving Prudentia or Reed with respect to Plot D17'.[248]

335 Adding to the confusion, as the judge recited,[249] various Sunland personnel described the thing for which the Hanley fee was paid as, possibly, 'some limited right of negotiation', and the fee itself as a 'spotter's fee' or an 'introduction fee'.

336 All the while, it is to be borne in mind, Sunland and its personnel were commercially sophisticated property developers, with ready access to legal advisors.[250]

337 In this context, his Honour found that the failure on the part of Brown or Abedian to ask any serious questions, when confronted with the news on or about 12 September 2007 that the marketing people at DWF might sell plot D17 with there being nothing that Prudentia could do about it, to be telling against their asserted belief of a control over the land held by Prudentia. He said:

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. 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. 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". 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. 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. 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.[251]

338 The position was this. An experienced property developer claimed to believe that another person's 'right' or 'control' over the land stood as an obstacle to it pursuing the land itself. Known, objective facts excluded the common forms of right or control over land. Yet it was unable to identify with any precision the nature of the right or control it claimed to believe existed. Nor did it make any serious enquiries about the nature or existence of that right, notwithstanding that it had the opportunity to do so, still less did it sight any document that evidenced the right. We see nothing wrong in logic, principle or good sense in the trial judge regarding each of those matters as capable of undermining the credibility of the asserted belief.

339 One of Sunland's arguments was a recapitulation of an argument we addressed earlier in the context of discussing whether the judge properly considered its case theory as advanced in the pleadings and at trial. That is, that it did not matter what the nature of the right that Prudentia represented itself to hold was, but simply that it held itself out to have a right. In this context Sunland argued, in effect, that the judge was wrong to regard Sunland's inability to identify the nature of the right or control as mitigating against a finding that it relied upon the representation to pay the Hanley fee.

340 We disagree. What we said earlier is also apposite here.[252] But whereas earlier we were considering the objective issue of whether conduct was capable of inducing error, here we are considering findings of what actuated Sunland. Nevertheless in making a forensic judgment about what a party truly believed at a given time, it is legitimate for the trial judge, amongst other things, to examine closely the content of the asserted belief and to measure it against what was plausible and credible in all the circumstances. Those circumstances included the party's knowledge and experience; the consistency or otherwise of the terms in which they had expressed the belief; whether associated conduct was consistent with the asserted belief, etc. This the judge did. There was nothing wrong in his Honour's reasoning on this issue.

341 Sunland complains that the judge was wrong in concluding that it made no independent enquiries about the nature of the right, and misused that finding as a matter of reasoning. We have already addressed the reasoning process and find nothing wrong with the judge's use of the finding in principle. As to whether his Honour's finding was wrong, Sunland points to a paragraph in Brown's witness statement, apparently not challenged, to the effect that on 19 August 2007 Stringer informed him that she had telephoned Brearley to confirm that Prudentia had 'development rights' and that Brearley had confirmed it did.[253]

342 But it was Brown's and Abedian's failure to make enquiries on and around 12 September 2007 in respect of which the judge most particularly made his observations. And, at that time, Brown was dealing with the very officer (Brearley) who had apparently confirmed to Stringer Prudentia's 'development rights' two weeks earlier. Significantly, as the judge noted in the passage above, Stringer herself was involved in settling the 'put your foot on it' email. Still no enquiry was made. In our view, the judge did not err in first finding, and then having regard to, Sunland's failure to make pertinent enquiries about the right or control they claimed to believe that Prudentia possessed.

343 Sunland's contention that its knowledge of there being no SPA or payment made for the land did not mean that it could not still believe in the existence of some other kind of right, such as proprietary estoppel etc, has a degree of artificiality about it. Of course, it goes without saying that none of its witnesses claimed to believe a right of the kind now suggested was a right that Prudentia held. So, in substance, this argument is another manifestation of the point we have already addressed, namely, the proposition that it did not matter that Sunland's witnesses could not precisely identify the nature of the right or control. It did matter, for the reasons we have explained.

344 We reject the premise in the argument that the state of mind of Sunland revealed in the 'put your foot on it' email was superseded by, and could not alter the meaning of, the Implementation Agreement. In our view the premise reverses the correct reasoning process. As we have shown, the representations inherent in the Implementation Agreement had to be understood against the background of facts mutually known by both parties at the time they made it, including that Prudentia did not have its 'foot on the plot'.[254]

345 The complaints made concerning the judge's use of the substitution of Hanley for Prudentia, without any evidence of any transfer of rights between them, and of the evidence that Sunland believed Prudentia's right was held through Och-Ziff, both deal at the margins of his Honour's reasoning process. But we see nothing wrong with the way his Honour treated these facts. It was inconsistent with Sunland's asserted belief that Reed or Prudentia held certain valuable rights in the land, to display no concern about the lack of any chain of transfer of those rights from the party who actually held them to Hanley. The judge did not err in having regard to those issues, amongst others, in his reasoning process.

346 The judge did not rest his conclusion simply in the rejection of Sunland's claim that it was motivated by a belief that Prudentia or Reed held a right or control over the land when agreeing to pay the Hanley fee. His Honour delved further into what might have been the alternative motivation, addressing what was called 'the rhetorical question', posed by Sunland in submission:

... 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 ... [255]

I am of the view that Sunland paid the fee to "remove them [the Prudentia Parties] from the deal", so that they would "walk away" 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.[256]

348 He explained further the 'commercial imperative' as follows:

The Plot D17 transaction also needs to be assessed by reference to the feverish state of the Dubai property market in 2007. Further, having regard to the feasibility analyses which Brown had prepared for Plot D17, Sunland knew that its return on this plot would be "phenomenal", even taking into account the fee to Hanley. That fee was small compared to the premium Sunland paid on Plot D5B and considerably less than fees it later negotiated to receive from Likeitalot Investments Pty Ltd on Plot D17. 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".[257]

349 Sunland argues that the lure of profit did not, logically, negate the proposition that it also relied upon the representation it pleads. That may be true as a generalised proposition. But the judge's finding was multifactorial. No single finding was decisive. The judge's analysis of the facts and arguments was wide ranging, thorough and comprehensive. Upon the whole mix of facts, with an understanding that Sunland likely believed that Prudential occupied a negotiating position with DWF ahead of Sunland, and having regard to the credibility of the alternative proposition put forward by Brown and Abedian, the finding that the prospect of phenomenal commercial return was the reason Sunland was prepared to pay Prudentia (or Hanley) to 'go away' was entirely open and reasonable. We find no error in the judge's reasoning.

350 It follows from all of the foregoing that we reject Sunland's arguments on the issue of reliance.

Did Sunland suffer loss and damage in reliance upon the representations?

351 Sunland pleaded that as a result of entering the Prudentia agreement, then the Hanley agreement, and paying the fee of AED 44,105,780 it suffered loss and damage. That loss and damage was said to be the payment of the fee itself and 'loss of reputation by Sunland in Dubai for having been party to a transaction characterised by the Dubai authorities as illegal'.[258] Both heads of loss and damage were said to be the consequence of the statutory misconduct and false representations and the tort of deceit.

352 The grounds of appeal relating to loss and damage were broad:

1. The trial judge erred in holding that, if the appellants made out their allegations of misleading and deceptive conduct or deceit, they had failed to lead evidence that would enable the court to determine whether they had suffered any loss or damage.

61A The trial judge erred in finding that the appellants suffered no loss or damage by reason of the alleged misleading and deceptive conduct or deceit. The trial judge should have found that the appellants suffered loss or damage by reason of the alleged misleading and deceptive conduct or deceit.

353 His Honour held that Sunland had not established what its actual financial position was as a result of entering into the transaction with respect to plot D17.[259] Merely claiming damages in the amount of the Hanley fee on the basis that it would have withdrawn from buying plot D17 if it knew the true position, was, he said, too simplistic. Such a claim ignored the need for the court to determine Sunland's actual net financial position as a result of having acquired the plot.[260] Moreover, the judge said, if Sunland's position was that it would have negotiated to buy the land itself, without paying the fee, it had not provided or pointed to evidence that demonstrated it was likely to be able to do so.[261] Further, there was no evidence to show that the land could have been obtained at a price, and with the additional BUA Sunland ultimately received, putting it in an overall better position in the hypothetical than in reality.[262] Alternatively, Sunland might have negotiated some form of joint venture that put it overall better off, but again, it failed to lead evidence of the terms of any joint venture it might otherwise have entered.[263]

354 His Honour also held that the appellants had led no evidence to prove loss of reputation or which would enable the court to assess damages for such a loss.[264] Finally, his Honour held that it was inappropriate to fix some general, global award for damages when, apart from loss of reputation, those damages were quite capable of being quantified had Sunland led proper evidence in that regard.

355 Sunland's argument on appeal regarding loss and damage was, in the end, quite narrow. It did not take issue with the judge's finding that no evidence was led in support of the loss of reputation head of damage. Neither did it challenge, except by way of an aside, the judge's criticisms of its evidence concerning the alternative scenario it would have followed (ie transaction or no transaction) had it known that neither Prudentia nor Reed had a right to acquire the land or that Sunland did not need to come to an arrangement with them to be able to buy it. On appeal Sunland argued that the judge unnecessarily addressed questions of whether it was a 'transaction case' or a 'no transaction case'.[265] So it is not necessary for us to consider whether his Honour was justified in concluding, as he did, that the evidence of Brown and Abedian was internally inconsistent on that topic.[266]

356 In its written submissions on appeal Sunland concentrated only upon the 'transaction case' scenario. In particular, it challenged the judge's reasoning leading to his conclusion that Sunland failed to establish that DWF would have sold plot D17 to it rather than to Prudentia. It argued, again, there was no evidence that Prudentia was, in reality, ever negotiating with DWF to acquire the land or that it had the capacity to acquire it. Secondly, it argued that the judge's reasoning assumed that Sunland would have paid Prudentia an equivalent premium (ie AED 44 million or AUD $14 million) when there was no evidentiary basis upon which to make that assumption. Third, Sunland argued his Honour erroneously speculated in favour of the wrongdoer, contrary to the remedial purposes of the statute.

357 In oral argument Sunland concentrated on a submission that the judge failed to deal with its simple and straightforward claim for $14 million loss. Sunland contended that it was irrelevant to consider what might have happened, commercially, after it paid Hanley the $14 million fee: its primary loss was suffered at the point of paying the fee. The judge focused, Sunland argued, on the wrong transaction. Its loss was suffered because of its entry into the Hanley agreement, and the payment of the fee due under that agreement; not because of its entry into the SPA for plot D17 with DWF. Put broadly, Sunland argued that whatever other transaction Sunland might have entered (ie a purchase of the land by itself, or a new joint venture, or no transaction at all) Sunland would have been $14 million better off had it not been wrongly induced to pay the Hanley fee.

358 We will commence with Sunland's argument, made orally on appeal, that it ought to have succeeded on its claim for $14 million simply upon proving that it was induced by a misrepresentation to enter the Hanley agreement and pay the fee.

(a) compensatory damages for tort are measured by the monetary sum necessary to put a wronged party into the position it would have occupied but for the wrongful conduct;[267]

(b) to measure that sum requires a comparison to be made between the position the wronged party is in as a result of the tortious conduct (its actual position) with the hypothetical position it would have been in but for the wrongful conduct (the counterfactual position);[268]

(c) a necessary element of that equation is the value of the actual position. In Sunland's case, that required it to prove, as the party bearing the onus of proof of loss and damage, the financial position in which it was placed as a result of being induced to enter the Hanley agreement and pay the fee;[269]

(d) Sunland's true financial position, as a result of entering the Hanley agreement and paying the fee, was not measured by having regard only to the fee paid (the expense) but also, in the circumstances, by taking into account the benefit it received as a result of paying that fee;[270]

(e) there was limited, albeit incomplete, evidence led by Sunland of some of the financial gain it made after acquiring plot D17, including the retention of $14 million received from a joint venturer who later defaulted after entry into a joint venture agreement to develop the plot. But its evidence was not sufficient to enable the court to determine its actual net financial position;[271]

(f) in those circumstances the court could not carry out the task of comparing Sunland's actual financial position with its counterfactual position so as to be satisfied it suffered a loss - therefore it must fail.

360 Sunland's challenge does not so much take issue with this reasoning process. Rather, it seems, it limits its attack to a denial of the premise in (d); that is, denying that anything should be 'netted off' from the payment of the $14 million to determine whether Sunland suffered a loss by the misleading and deceptive conduct or the deceit. The gravamen of its argument was that one could and should disconnect Sunland's entry into the Hanley agreement and payment of the fee, on the one hand, and its entry into the plot purchase agreement and any benefits that accrued or would have accrued from doing so, on the other.

361 In our opinion such an approach would not deal with reality and artificially limits the assessment of the consequences of the so-called inducement to only one element of its true consequences.

362 The Hanley fee was paid as consideration to allow Sunland to step into Prudentia's shoes and negotiate the acquisition of plot D17. The chronology leading up to those two events, which we have already traversed, demonstrates that the one was not going to occur without the other. Upon the execution by Sunland of the Hanley agreement on 26 September 2007, on the very same day, Sunland met with DWF to sign the SPA for the plot and pay the deposit under the contract. The relevant negotiation of price and conditions had been undertaken between Prudentia and DWF, and between Sunland and DWF, leading up to 26 September so that the outcome of the negotiation for the acquisition by Sunland for plot D17 was known when it became bound to pay the Hanley fee. The payment by Sunland to Hanley of AED 44,105,780 on 1 October 2007 was coordinated with the receipt of DWF's executed part of the SPA. In short, Sunland's entry into the Hanley agreement and the SPA were logically, chronologically and commercially interlinked.

363 So understood, it was correct in our view for the judge to regard the relevant financial position of Sunland, as a consequence of the assumed wrongful conduct, to be the sum of both the expense paid and the benefit gained flowing from entering the Hanley agreement. And because the Hanley agreement and the SPA were linked in the way we have described, it was necessary for Sunland to establish what benefits it derived from purchasing the land. This it failed to do.

364 Accordingly we reject Sunland's argument that the judge misdirected himself or otherwise failed to deal appropriately with its 'simple' claim for $14 million loss. In our view the approach and method his Honour adopted was sound.

365 We then return to Sunland's arguments set out in its written submission.

366 Sunland's first argument concerned what it alleged was 'impermissible speculation' on the judge's part that, had there been no misrepresentation and inducement, Prudentia would nevertheless have bought the land and Sunland would have needed to pay a premium to purchase it from Prudentia.

367 Of course, any 'finding' concerning a hypothetical scenario involves the court deducing, as a matter of probability, what would have happened in circumstances that have not in fact occurred. One may accept that such an exercise could be called an exercise in speculation. But it is wrong in our view to describe that as 'impermissible' given the nature of the task. Moreover, it was not as if the judge in this case did not have a significant body of evidence from which to draw reasonable inferences as to what would probably have occurred if events had taken a different course.

368 So, taking each proposition in relation to which Sunland complains:

(a) first, that Prudentia would have negotiated to acquire plot D17. We have already found, contrary to Sunland's submission, that Prudentia was genuinely interested in purchasing the land so we see no reason why that conclusion involved any erroneous speculation;

(b) second, that Prudentia would have entered a contract (ahead of Sunland) to acquire plot D17. We have already affirmed the judge's conclusion that Prudentia occupied the position of preferred negotiator, in precedence to Sunland, and see no reason why the judge's inference on this element involved any erroneous speculation;

(c) third, that Prudentia would have sold plot D17 to Sunland. History shows that Prudentia was amenable to either entering a joint venture agreement to develop the plot or making an immediate return from it. Had Sunland been interested in acquiring plot D17, as it showed itself to be, there is no reason to think that it would not have purchased the land from Prudentia in the altered scenario under consideration;

(d) fourth, that Prudentia would have been able to extract a premium from Sunland in doing so:

• 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.

369 In summary, we do not find any of the propositions of which Sunland complains to involve an inference that was not reasonably open to his Honour on the evidence, or one that otherwise involved error.

370 What we have said in addressing the first of the errors alleged by Sunland in its written submissions also addresses the second (which attacked the assumption that Sunland would have paid Prudentia a premium of $14 million in order to acquire the land from Prudentia if necessary).

371 The third and final error complained of in written submissions was that the trial judge did not have proper regard to the remedial purpose of the TPA and wrongly 'speculate[d] in favour of the wrongdoer'. It cited the High Court's decision in Murphy v Overton Investments Pty Ltd,[274] generally, in support of its argument. We do not read that decision as saying anything that would suggest a court is not to approach the drawing of inferences of fact concerning causation or loss, in a case concerning a claim for damages under Part VI the TPA, differently from any other case. It said nothing about preferring inferences of fact to favour or not favour one party or the other. What the court stressed was that it was wrong to approach the operation of the provisions of the TPA which deal with remedies for contravention of the Act by attempting to draw some analogy with any particular form of claim under the general law.[275] We do not think that principle has any significant application in this case. In any event, in our view, the trial judge did not 'speculate' in favour of the respondents as Sunland's argument implies.

372 In conclusion we reject Sunland's argument that his Honour erred in making the findings he made on loss and damage.

373 A great many appeal grounds were directed at the trial judge's adverse credit findings concerning Brown and Abedian.[276]

374 His Honour did indeed make adverse findings regarding the credit of each witness. Regarding Brown he said:

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.[277]

...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.[278]

376 The trial judge's analysis and findings concerning the credit of Brown and Abedian are to be found in many places throughout the judgment, but his Honour collected much of it in the passages that follow each of the above extracts, discussing each of the listed topics in turn.[279] Elsewhere the judge also made adverse findings in relation to specific issues as he analysed them; for example in relation to their evidence about the 12 September 'put your foot on it' email.[280] We do not intend to refer to every place where his Honour discusses the witnesses' credit.

377 In Fox v Percy[281] the High Court's set out principles that guide an appellate court's approach to findings of a trial judge that depend, at least in part, on that judge's assessment of the credit of a witness. There, Gleeson CJ, Gummow and Kirby JJ, noted a series of decisions that reiterated:

..the need for appellate respect for the advantages of trial judges, and especially where their decisions might be affected by their impression about the credibility of witnesses whom the trial judge sees but the appellate court does not.[282]

If, making proper allowance for the advantages of the trial judge, they conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute.[283]

...In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.[284]

... In some, quite rare, cases, although the facts fall short of being "incontrovertible", an appellate conclusion may be reached that the decision at trial is "glaringly improbable" or "contrary to compelling inferences" in the case.[285]

378 Returning to the present case, the trial judge considered that Sunland's case failed even if he were to take the evidence of Brown and Abedian at face value, regardless of the veracity of their evidence.[286] Nevertheless it appears to us that his Honour's critical conclusions on issues such as reliance were at least influenced by his assessment of the credit of Brown and Abedian.

379 It is useful to set out some examples of passages from the cross-examination of Brown and Abedian, as extracted by the trial judge, which illustrate the kind of evidence that his Honour found discredited the witnesses. We bear in mind that an appellate court suffers 'natural limitations' compared to the trial judge in respect of the evaluation of witnesses' credibility and the 'feeling' of a case; limitations not fully overcome by reading the transcript.[287]

380 In relation to Brown, the trial judge extracted passages of cross-examination and made comments concerning Brown's participation in the Dubai investigation in 2008 and 2009, concluding that his evidence indicated he could not be taken to be a reliable witness of truth:

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]

381 Especially given that the trial judge has observed the witness's demeanour and tone, and had the benefit of the entirety of the evidence in which to place the evidence in context, answers of the kind set out in the foregoing passage seem to us to provide a foundation from which the judge might legitimately form an adverse impression of the witness.

382 Likewise in respect of Abedian, and given the same advantages enjoyed by the judge that we have just mentioned, the following passage seems to us to illustrate why an adverse view might legitimately be formed about that witness. Here the judge commented upon cross-examination of Abedian about the 16 August 2007 email in which Joyce had told Brown that the main issue was that he (Brown) come to an arrangement with Reed that allowed Sunland to deal directly with DWF:

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]

383 Reading the judgment as a whole, it is clear that his Honour's impression of the two primary witnesses for Sunland was the product of a combination of matters: for example, exchanges in cross-examination, comparisons of different accounts given of the same incident or issue by the same witness, analysis of behaviour set against what might reasonably have been expected in the circumstances, conduct when under investigation by the Dubai authorities, etc. It is not possible to identify the one piece of evidence from which the judge formed his impression: certainly his Honour does not identify a single piece evidence. Rather, it is evident that his Honour's impression was gained from numerous matters, each reinforcing that impression to one degree or another. And that impression was gained whilst enjoying the kind of advantages available to a trial judge, which an appellate court does not share, referred to in Fox v Percy.

384 So it was an inherently difficult task for Sunland to undertake to persuade us that his Honour's impressions were wrongly formed. In our view, the two examples of cross examination of Brown and Abedian set out above[290] represent, at least, solid starting points for a reasonably formed adverse impression of the credit of each witness. A piece by piece analysis of each of the findings that contributed to his Honour's overall impression was an onerous task; Sunland did not attempt it. Rather it selected and attacked some particular findings with the hope that by showing that some were made in error, that the whole impression should be held to have been reached in error.

385 But even if it could be shown that a particular finding here or there was wrong, or was debatable, there was so much material upon which the judge based his impression that the undermining of individual conclusions was hardly likely to overwhelm the whole. Further, the challenge to selected findings ran into some difficulty. For example Sunland challenged the judge's finding that Brown's claim that he thought it was Prudentia which held the 'development rights' over plot D17 was discredited by his statement made to the Dubai prosecutor in January 2009. His Honour extracted a passage from Brown's statement to Mustafa dated 22 January 2009 in which Brown referred to his belief that Och-Ziff had the arrangement with Nakheel for development rights:

"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] [291]

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.

387 Sunland took us to the relevant statement and complained that his Honour simply overlooked the fact that Brown had also spoken, in the same statement, of Reed saying that 'his company' had the development rights over the plot; meaning, Sunland argued, that Prudentia had the rights. Sunland argued that the judge had misused the statement to make an erroneous finding, and thus to wrongly discredit Brown. Much of the force was taken out of this argument when it was seen that the trial judge prefaced his quotation of Brown's reference to Och-Ziff with these words:

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,...[then setting out the passage taken from Brown's statement quoted two paragraphs above].[293]

Thus, his Honour's remarks were not only made with express reference to Brown's mention that Reed had told him Prudentia held 'development rights', but they were also more specifically targeted to the issue of the entity that supposedly 'controlled' the plot.

388 Certain other arguments advanced by Sunland to demonstrate that the judge's findings on the credit of Brown and Abedian were not justified can be disposed of by reference to other findings we have already made. For example, it argued the findings were wrong because they were based upon:

(a) an evaluation of their oral evidence against a misconstruction of the plain meaning of the contemporaneous documents. The documents Sunland referred to were the 16 August email, the recitals in the Implementation Agreement and the recitals in the Prudentia and Hanley agreements. Our findings on the meaning of these documents accord with those of the trial judge, and not with Sunland's contentions.

(b) an evaluation of their evidence against a case that Sunland was not required to meet. Contrary to Sunland's submission, we held that the case it had to meet was to prove it relied upon a representation that Prudentia or Reed had an enforceable legal right to plot D17.

(c) an evaluation of their evidence in circumstances where his Honour failed to consider internal documents of the respondents. Here Sunland refers back to the documents said to support the 'scheme' which, as we have previously held, his Honour rightly refused to entertain.

389 In conclusion, and for the reasons we have given, we reject Sunland's contentions that the trial judge erred in making adverse findings concerning the credit of Brown and Abedian.

Alleged errors in applying the principles of Browne v Dunn and Jones v Dunkel

390 Grounds of appeal 50 and 51 were factually and conceptually related. By ground 50 Sunland contended the trial judge erred in rejecting its submission that the rule in Browne v Dunne applied to the failure of the respondents to put to Brown contrary versions of the conversations that Sunland pleaded that Brown had with Reed and Joyce. By ground 51 it contended that the trial judge misapplied the law expressed in the rule in Jones v Dunkel when holding that no inference adverse to the respondents was open to be drawn in circumstances where they called no witnesses.

391 Neither ground was pressed in either written or oral submissions and we take them to have been abandoned. We say nothing further about them.

Jurisdiction: extra-territorial provisions of the TPA and FTA

392 Questions were raised at trial whether the prohibitions under Part V of the TPA, and like provisions under the FTA, applied to the conduct of Prudentia, Hanley, Reed or Joyce even assuming their conduct would otherwise have amounted to misleading or deceptive conduct or to have involved false representations. The issue was the territorial reach of the two statutes.[294]

393 Sunland alleged that Joyce made the representations that constituted the prohibited conduct in meetings in Dubai between March and September 2007,[295] a telephone call with Brown in Dubai on 15 August 2007,[296] an email to Brown (received in Dubai) on 16 August 2007,[297] and a telephone call with Brown in Dubai on 29 August 2007.[298] Hanley's conduct, on the other hand, was alleged to have been engaged in when it retained and instructed Freehills in Melbourne to prepare the Hanley agreement,[299] and when it caused Sinn (of Freehills) to email the Hanley agreement from Australia to Brown in Dubai.[300]

394 The conduct of both Hanley and Joyce was alleged to have contravened each of the following provisions of the TPA:[301]

(1) A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

A corporation shall not, in trade or commerce, in connexion with the supply or possible supply of goods or services or in connexion with the promotion by any means of the supply or use of goods or services:

...

(aa) falsely represent that services are of a particular standard, quality, value or grade;

...

(g) make a false or misleading representation concerning the existence, exclusion or effect of any condition, warranty, guarantee, right or remedy.

53A False representations and other misleading or offensive conduct in relation to land

(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; ...

395 It can be seen that each contravention, to be made out, requires that the conduct or the representation be engaged in or made 'in trade or commerce'. The expression 'trade or commerce' is defined in the TPA to mean ... 'trade or commerce within Australia or between Australia and places outside Australia'. It follows that conduct engaged in or representations made in trade or commerce that is neither within Australia or between Australia and places outside Australia will not fulfil an essential condition of each of the prohibitions relied upon.

396 Moreover, in addition to the territorial limitation inherent in the defined expression 'in trade or commerce', the trial judge rightly pointed to another principle of limitation:[302]

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.[303]

397 So, in summary, it can be seen that two separate principles of territorial limitation were under consideration: first, the requirement introduced by the condition 'in trade and commerce' that such trade or commerce be within Australia or between Australia and places outside Australia; and secondly, and separately, that unless there is clear indication to the contrary, the statute is presumed only to apply to conduct within Australia or to Australian nationals.

398 As to the second limiting principle, s 5 of the TPA does provide a clear indication to the contrary by providing:

1. Extended application of Parts IV, IVA, V, VB and VC

(1) Part IV, Part IVA, Part V (other than Division 1AA), Part VB and Part VC extend to the engaging in conduct outside Australia by bodies corporate incorporated or carrying on business within Australia or by Australian citizens or persons ordinarily resident within Australia.

399 In Bright v Femcare,[304] Lehane J brought together the two principles of territorial limitation, as extended by s 5(1), in this way:

Conduct, then, gives rise to a liability under, for example, section 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 section 5(1)); secondly, it is conduct in trade or commerce (including trade or commerce between Australia and a place outside Australia).[305]

400 The extended operation under s 5(1) is only available for a claim made under s 82 of the TPA with the consent of the Minister.[306] There is no dispute that the Sunland parties did obtain such consent. It follows that, subject to the conduct being 'in trade or commerce' as defined, the application of the relevant sections in Part V extend to conduct engaged in by Australian citizens (which would include Joyce) and bodies corporate carrying on business within Australia (which, Sunland contends, would include Hanley). Being a corporation registered in Singapore, Hanley did not qualify as an Australian body corporate.

401 His Honour first considered whether s 5(1) extended the operation of the TPA to Hanley's conduct. The critical question was whether Hanley was 'carrying on business within Australia'. His Honour found that Hanley was not, relevantly, carrying on business in Australia because:

• there was no evidence it engaged in any commercial activity in Australia on a continuous, repetitive or systematic basis;[307]
• there was no evidence it had engaged an Australian solicitor, or even if it had, the mere engagement of a local solicitor did not of itself mean that Hanley was carrying on business in Australia;[308] and
• the critical conduct, and aspects relevant to it, took place in or was located within Dubai and not Australia.[309]

402 Moreover, in relation to both Hanley and Joyce, his Honour found that the condition that the relevant conduct be 'in trade or commerce' was not satisfied. That is, he was not satisfied that the trade or commerce in the course of which their impugned conduct allegedly occurred, was trade or commerce between Australia and a place outside Australia.[310]

403 The judge identified a list of transaction features that he considered important, both for deciding that Hanley was not carrying on business in Australia and that the transaction was not, in truth, between Australia and Dubai.[311] Those features included:

• plot D17 was land located in Dubai;
• the vendor of the land was a limited liability company incorporated in the Emirates of Dubai;
• the proposed joint venture between Prudentia and the Sunland parties concerned a development to be carried out in Dubai;
• 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;
• the agreement that was acted upon by the parties was the Hanley agreement;
• the parties to the Hanley agreement were SWB (incorporated in the British Virgin Islands) and Hanley (incorporated in Singapore);
• Hanley was the company to whom the fee was paid;
• a governing law of the Hanley agreement was the laws of the Emirates of Dubai and federal laws of the UAE;
• payment of the Hanley fee was from the Dubai account of the Sunland parties' Dubai based solicitors to Hanley via cheque with the exchange occurring in Dubai;
• the evidence of Sunland was that it considered there to be no 'recourse' from their Dubai operations back to Australia because the management of the Dubai operations is controlled outside Australia.

404 Sunland challenged both conclusions, namely the finding that Hanley was not carrying on business in Australia and that its conduct was not in trade or commerce between Australia and Dubai.

405 In relation to the first, Sunland argued that the finding was wrong because:

• Hanley was the wholly owned subsidiary of an Australian company (Prudentia) that participated in a substantial transaction negotiated from Australia;
• The transaction was negotiated by Australian solicitors acting on its behalf and for its benefit;
• Hanley was, in effect, Prudentia's nominee and created for the purpose of receiving funds from Sunland;
• The conclusion that Hanley's commercial activities were not continuous, repetitive or systematic in Australia was not a proper basis upon which to support the finding.

406 We do not find Sunland's arguments on this issue persuasive. In deciding whether Hanley was a company carrying on business in Australia it is not to the point to categorise it as 'Prudentia's nominee' or simply attribute to it the limited purpose of 'receiving funds'. Hanley was incorporated to be the party that transacted with the vendor, to achieve taxation advantages on the basis that the sale and purchase between them was genuine and effective and occurred offshore from Australia.

407 Furthermore, even if Hanley itself retained Freehills to prepare and send the Hanley agreement - as to which we do not find it necessary to decide - we consider the trial judge was correct in not regarding that fact alone as being sufficient to show that Hanley was carrying on business in Australia.

408 Finally, the observation that the commercial activities of Hanley were neither continuous, repetitive or systematic in Australia was an appropriate finding and, in our view, a proper consideration, in combination with others, upon which to base the conclusion.

409 Turning then to the question whether the conduct involved trade and commerce between Australia and a place outside Australia, Sunland's written submission listed facts which it argued ought lead to the conclusion in its favour:

(a) Reed was ordinarily resident in Victoria; (b) Reed and Prudentia carried on business in Victoria; (c) Reed made misrepresentations in telephone calls that he made, and emails that he sent, from Australia; (d) Joyce was an Australian citizen; (e) Joyce made misrepresentations by emailing Brown through Sunland's email server located on the Gold Coast; (f) Joyce's communications with Reed in order to carry out their joint purpose were largely, if not entirely, conducted with Reed in Australia; (g) Melbourne solicitors, Freehills acted on behalf of Prudentia and Hanley; (h) the Prudentia parties made misrepresentations through documents prepared by solicitors in Australia; (i) Sunland's head office was in Australia, and its board members approved entry into the impugned transaction, in Australia; and (j) most of the funds paid to Hanley were funds sent from Australia.

410 It is evident from the foregoing list that Sunland seeks to assimilate Hanley's conduct with that of Reed and Prudentia for the purpose of its argument. In truth the Hanley representations (and thus its conduct) were of more limited compass.

411 But, in any event, the task for the judge was to decide as a matter of substance where the trade and commerce was occurring. In the context of considering the 'trade and commerce' constitutional head of power, the High Court said in W & A Macarthur Limited v Qld:[312]

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.[313]

412 Further, in ACCC v Global Prepaid Communications, Gyles J said:[314]

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.

413 Each party sought to characterise the transaction by highlighting a list of features designed to lead to the conclusion for which it contended. In our view, the character of the commercial activity in which the conduct of Hanley and Joyce occurred fell to be judged by its substantial nature and not simply by the enumeration of features, no matter how significant or insignificant, that bore a particular territorial connection. We are persuaded that the attributes upon which the trial judge relied demonstrated, as his Honour found, that the substantial nature of the trade and commerce in which the parties were engaged was trade and commerce in Dubai, not between Australia and Dubai.

414 Sunland also challenged his Honour's findings that the FTA also did not extend to the conduct of Hanley and Joyce. Sections 9, 12(b), 12(k) and 12(n) of that Act - each said to have been breached - proscribed the same or similar conduct as did ss 52, 53(aa) and 53(g) of the TPA. 'Trade or commerce' was not defined in the FTA in the same way as it was in the TPA; it merely provided that it included business not carried out for profit.

415 Section 6 of the FTA provided for its extraterritorial operation:

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.[315]

416 Essentially, Sunland relied upon the same factual arguments that it advanced with respect to the TPA to contend that his Honour was wrong in finding that the conduct of Hanley and Joyce lacked the requisite connection with Victoria. We agree with his Honour that although the provisions of the FTA do not mirror those of the TPA in terms of extraterritorial operation, the factual findings made in determining the question under the TPA were highly pertinent in resolving the related issue under the FTA.[316] Indeed, as we have said, Sunland essentially repeated the same factual arguments it put forward in relation to the TPA provisions to support its position under the FTA.

417 We find no reason for arriving at any different conclusion, as a matter of substance, in respect of the judge's findings under the FTA as we did in respect of his conclusions under the TPA. Accordingly we reject Sunland's grounds of appeal concerning the judge's findings on the application of the two Acts to the conduct of Hanley and Joyce.

418 In the result, Sunland has failed to persuade us that the trial judge erred by dismissing its claims for damages against the respondents, whether for breach of the various statutory provisions or in deceit. It follows that the substantive appeal must be dismissed.

419 In addition to pursuing its claims for misrepresentation and deceit at trial and on appeal in this Court, Sunland has also pursued what are in substance the same claims against Prudentia, Reed and Joyce in Dubai. Both proceedings arise out of the same factual matrix; both are based on misrepresentation and deceit; and both seek substantially the same relief. In this appeal, Sunland Group, the second appellant in the substantive appeal and sole appellant in this appeal,[317] appeals the decision of the trial judge granting an anti-suit injunction to restrain it from continuing proceedings against Prudentia, Reed and Joyce in Dubai.

420 Sunland's claim was filed in the Federal Court on 10 August 2009 and was initially managed by Logan J, a judge of that court. On 3 November 2011, Logan J cross-vested the proceedings to the Supreme Court of Victoria pursuant to an application made by Joyce. The trial of the substantive proceedings commenced in the Supreme Court of Victoria on 29 November 2011.

421 On 16 July 2009, Reed (in absentia), Joyce and two other Australian citizens were charged with criminal offences under Dubai law arising from the transaction in relation to plot D17. Those charges proceeded in the Dubai Court of First Instance as penal proceedings 2130/2009 ('Dubai penal proceedings'). In those proceedings it was alleged, inter alia, that Reed and Joyce defrauded Sunland by falsely representing that they had a right to acquire plot D17.

422 After the commencement of the Dubai penal proceedings, Sunland filed a 'civil right' claim in Dubai against Reed and Joyce and others, and subsequently applied to join Prudentia to that claim. The claim was filed in August 2009 and the relevant court fees paid in November 2009.

423 This kind of claim attaches to, and is heard in conjunction with, a penal proceeding. The claim was filed pursuant to art 22 of the UAE Criminal Procedure Code, issued under Federal Law No. 35 of 1992, which provides:

[w]hoever sustained a direct personal prejudice from the crime is entitled to claim from the accused his civil rights during the gathering of evidence, proceeding with the investigation or before the court examining the criminal case, at any stage of the trial up to the close of oral pleadings.

424 Also relevant is art 269 of the UAE Criminal Procedure Code, which provides that:

the conclusive criminal judgment rendered on the merits of a criminal action declaring innocence or guilt has res judicata and is binding on the civil courts in matters not yet settled by a conclusive judgement.

425 In the first of two applications brought by the respondents seeking anti-suit injunctions to prevent Sunland from bringing its claim in Dubai, Logan J heard expert evidence on how civil right claims are heard and determined. His Honour held that:

Strictly, a person who makes a civil right claim pursuant to Art 22 in a criminal proceeding is entitled actively to participate in that proceeding only in relation to that civil [right] claim. However, in practice, the distinction between the civil right claim and the criminal charge in the proceeding is often unclear such that a civil right claimant may be permitted, by the judge, to ask questions at the criminal trial and to liaise with and supply material to the public prosecutor. If there is a finding of guilt the judge can enter a finding as to interim compensation and then refer the civil right claim to the civil courts for final determination. Alternatively, the judge in the criminal proceeding could simply dismiss the civil right claim if the judge considers that course to be appropriate.[318]

426 In his reasons for granting the anti-suit injunction, the trial judge in the Supreme Court drew on Logan J's discussion of the nature and procedural aspects of the civil right claim.[319] In addition, his Honour examined the expert evidence on the application of UAE law filed in the application before Logan J and also the evidence of Diana Hamade, an expert retained by Sunland, filed in the proceedings before the trial judge. His Honour accepted the evidence of Abdulraham Juma, an expert retained by Sunland, that in determining a civil right claim, the criminal court may itself make an award of damages for all or part of the amount claimed, or may refer the assessment of the quantum of the civil right claim to the civil courts.[320] His Honour concluded that:

Consequently, it does seem a fair generalisation in relation to the Dubai proceedings that a civil claim made in the circumstances of the present Dubai proceedings will, in effect, rely on the fact-finding in the criminal proceedings. In spite of some of the expert evidence before the Federal Court suggesting that Sunland would be constrained in its ability to participate in the criminal proceedings, this is contrary to evidence heard during the trial of this matter, which indicates that Sunland has the ability, and has, taken a more than merely passive role.[321]

427 On 15 June 2010, approximately 10 months after proceedings were commenced in the Federal Court, Dubai World (the government-owned parent company of Nakheel and DWF) filed its own civil right claim in the Dubai penal proceedings against Sunland and various other parties including the respondents in this appeal. Dubai World claimed damages of AED 151,600,000.

428 In December 2009, Reed and Prudentia applied to Logan J to restrain Sunland from pursuing its civil right claim in the Dubai penal proceedings. On 31 March 2010, Logan J dismissed the application.[322] It was conceded before Logan J that the mere fact that there was duplication of proceedings was insufficient to warrant granting the relief sought.[323] Critically, his Honour held that Sunland had a legitimate interest in pursuing its claim in Dubai:

That there may be forensic advantages in terms of law and practice in Dubai in the making of the civil right claim emerges from the expert evidence. The Sunland parties may well benefit from the amalgam of their own resources and those of the public authorities in Dubai in demonstrating that Mr Reed has committed fraud there.

...

All in all, the civil right claim in Dubai is "an obvious step to take in the circumstances" for the Sunland parties to protect their interests.[324]

429 On 13 and 14 December 2010, at the conclusion of the plaintiffs' evidence in the trial of the substantive proceedings in the Supreme Court, Prudentia, and separately Reed and Joyce, made further applications to prevent Sunland from pursuing its claim in Dubai. These applications were heard on 19 December 2011 and judgment was delivered on 25 January 2012.

430 The trial judge held that 'there is no suggestion that complete relief against the applicants is not available to Sunland in these "local" proceedings'[325] and held that Sunland did not have a legitimate interest in pursuing its claim in Dubai.[326] His Honour further held that in the absence of such an interest, commencing proceedings in the Supreme Court and pursuing them to near completion amounted to an election to pursue its claim in Australia rather than in Dubai.[327] His Honour concluded that 'in all the circumstances there is nothing to balance the vexation and oppression arising from the maintenance of the foreign proceedings.'[328]

431 On 27 January 2012 the trial judge granted the injunction, ordering that Sunland Group not:

1. prosecute the civil claim for compensation or civil remedy commenced by notice filed by the Second Plaintiff in Dubai criminal proceeding number 2130/2009 against the Third Defendant (civil proceeding);

2. press its application to join the First Defendant in the proceeding as a defendant in the civil proceeding; and

3. commence or take any step in relation to any other civil proceeding or proceedings against the First, Second or Third Defendants arising out of or in relation to the matters pleaded in the second further amended statement of claim filed in the proceeding herein and sought against the First to Third Defendants in this proceeding.

432 On 31 January 2012, Sunland withdrew its civil right claim.

433 The appeal against the decision granting the injunction was heard together with the appeal against the substantive judgment of the trial judge.

434 Sunland's notice of appeal lists 24 grounds of appeal. In its written submissions, Sunland submitted that the appeal should be allowed and the injunction dissolved for six reasons:

1. It is not prima facie vexatious or oppressive for a plaintiff to bring two sets of proceedings in respect of the same controversy in different countries;

2. The onus is on the applicant for an anti-suit injunction to show that there is vexation in point of fact;

3. There was no evidence to support a finding that Sunland had 'elected' to pursue its proceedings in Australia to the exclusion of Dubai;

4. There was no evidence to support a finding that Joyce, Reed and Prudentia were subject to oppression or vexation;

5. The finding that Sunland had no legitimate juridical advantage and no sensible commercial purpose in bringing its claim in Dubai was wrong; and

6. Sunland's claim in Dubai did not undermine the integrity of the processes of the Supreme Court of Victoria.

435 As well as relying on its written submissions, counsel for Sunland submitted that this was not an appropriate case in which to order an injunction for the reasons set out in the judgment of Logan J.

436 It may be noted that Sunland did not challenge the finding of Logan J that 'the substratum of facts in respect of the proceedings in this Court, the criminal proceedings in Dubai and the civil right claim in those proceedings are substantially the same.'[329] Nor did Sunland join issue with the trial judge's finding that there is no suggestion that complete relief against the respondents is not available to Sunland in these 'local' proceedings.[330]

437 For completeness we note that in terms of potential legal remedies this remained true despite the subsequent finding of lack of jurisdiction in respect of the misleading and deceptive conduct claims against Joyce and Hanley.[331] If the facts alleged by it were made out then Sunland was entitled to succeed in its claims for deceit. Both the claims in this Court and the criminal proceedings in Dubai involved allegations that the respondents knowingly deceived Sunland by way of false misrepresentations.

438 The authorities regarding the granting of anti-suit injunctions are well established and are discussed in detail in the reasons of the trial judge. The primary Australian authority is the High Court's decision in CSR Ltd v Cigna Insurance Australia Ltd.[332] In that case, the majority[333] identified two broad bases upon which the court may grant an anti-suit injunction.

439 The first is grounded in the court's inherent power to prevent its processes being abused and the correlative power to protect the integrity of those processes once set in motion.[334] The second is grounded in the court's equitable jurisdiction to make orders in restraint of unconscionable conduct or the unconscientious exercise of legal rights. The majority in CSR held:

One well established category of case in which an injunction may be granted in the exercise of equitable jurisdiction is that involving proceedings in another court, including in a foreign court, which are, according to the principles of equity, vexatious or oppressive. Thus, it was said in Carron Iron Company v Maclaren that '[w]here [there is] ... pending a litigation here, in which complete relief may be had, [and] a party to the suit institutes proceedings abroad, the Court of Chancery in general considers that act as a vexatious harassing of the opposite party, and restrains the foreign proceedings.'[335]

440 The majority cited with approval the statement of Robert Goff LJ in Bank of Tokyo Ltd v Karoon[336] that 'foreign proceedings are to be viewed as vexatious or oppressive only if there is nothing which can be gained by them over and above what may be gained in local proceedings'[337] and agreed that 'they are vexatious or oppressive if there is a complete correspondence between the proceedings or, in terms used in Carron Iron Company, if "complete relief" is available in the local proceedings.'[338]

441 In England, the principles upon which anti-suit injunctions are now granted were authoritatively stated by the Privy Council in Societe Nationale Industrielle Aerospatiale v Lee Kui Jak.[339] The leading speech was given by Lord Goff who set out the following test:

In the opinion of their Lordships, in a case such as the present where remedy for a particular wrong is available both in the English (or, as here, the Brunei) court and in a foreign court, the English or Brunei Court will, generally speaking, only restrain the plaintiff from pursuing proceedings in the foreign court if such pursuit would be vexatious or oppressive. This presupposes that, as a general rule, the English or Brunei Court must conclude that it provides the natural forum for the trial of the action; and further, since the Court is concerned with the ends of justice, that account must be taken not only of injustice to the defendant if the plaintiff is allowed to pursue the foreign proceedings, but also of injustice to the plaintiff if he is not allowed to do so. So the Court will not grant an injunction if, by doing so, it will deprive the plaintiff of advantages in the foreign forum of which it would be unjust to deprive him.[340]

442 As the learned authors of Nygh's Conflict of Laws in Australia[341] observe, the proposition set out in CSR that foreign proceedings are to be viewed as vexatious or oppressive only if there is nothing which can be gained by them over and above what may be gained in the local proceedings is framed in absolute terms, which is surprising given that the power to grant injunctions in respect of foreign proceedings which are vexatious or oppressive derives from equity. In our view, it would not be appropriate to interpret this statement of the court as laying down a strict rule; rather, as the majority affirms later in CSR, the limits of the jurisdiction are determined by the dictates of equity and good conscience.[342] This requires that both the injustice to the respondents if Sunland is allowed to pursue the foreign proceedings, and the injustice to Sunland if it is not allowed to do so, be taken into account.

443 In the trial judge's discussion of the nature of the vexatiousness or oppressiveness of parallel proceedings[343] his Honour drew on the High Court's decision in Henry v Henry.[344] This was not an anti-suit injunction case, but rather a case where parallel divorce proceedings had been commenced in Monaco and Australia and the wife applied to have the Australian proceedings stayed on grounds which included forum non conveniens. In that case, the majority held that:

It is prima facie vexatious and oppressive, in the strict sense of those terms, to commence a second or subsequent action in the courts of this country if an action is already pending with respect to the matter in issue. And although there are cases in which it has been held that it is not prima facie vexatious, in the strict sense of that word, to bring proceedings in different countries, the problems which arise if the identical issue or the same controversy is to be litigated in different countries which have jurisdiction with respect to the matter are such, in our view, that, prima facie, the continuation of one or the other should be seen as vexatious or oppressive within the Voth sense of those words.[345]

444 The trial judge, after setting out this passage from Henry, observed that:

On a more general level, it [Henry] affirms the notion that prima facie to have two proceedings in respect of the same controversy in different countries is vexatious and oppressive and that the court should do what it can to avoid that situation, for all the reasons to which reference has been made.[346]

445 Sunland submits that the trial judge erred in holding that it was prima facie vexatious or oppressive for a party to bring two proceedings in respect of the same controversy in different countries. It submits that the majority judgment in Henry, which predates the High Court's decision in CSR, is distinguishable and is not authority for the proposition put forward by the trial judge.

446 In our view, these submissions are based on a misreading of his Honour's reasons.

447 When read in isolation, the trial judge's statement suggests that his Honour held that the existence of two sets of proceedings in respect of the same controversy was sufficient, prima facie, to constitute vexation or oppression. However, consideration of his Honour's reasons as a whole shows that this is not case.

448 The trial judge accepted that, inter alia, the following principles can be derived from CSR:

...

(iv) foreign proceedings are to be regarded as vexatious and oppressive if, and perhaps only if, there is nothing which can be gained by a party conducting those proceedings over and above that which that party may gain in conducting local proceedings;

(v) the mere coincident or co-existence of proceedings in different countries is not, of itself, vexation or oppression; [347]

449 In addition, the trial judge cited the decision of Finklestein J in TS Production LLC v Drew Pictures Pty Ltd[348] as authority for the proposition that 'the existence of simultaneous proceedings does not, of itself, establish that an action is vexatious.'[349]

First, it was submitted that it is vexatious and oppressive, as a starting point, for a plaintiff to maintain two civil proceedings seeking the same relief in two jurisdictions. This position is sufficient to establish vexation and oppression on a prima facie basis, thus shifting the onus to the party maintaining the proceedings to justify its position. It was common ground that mere co-incidence of proceedings in different countries is not, of itself, vexatious or oppressive.[350]

451 These passages from his Honour's reasons are inconsistent with the view that the mere existence of parallel proceedings in respect of the same controversy in different countries is prima facie vexatious and oppressive. Rather, they make clear that the existence of two sets of proceedings would be prima facie vexatious or oppressive only in circumstances where both proceedings seek the same relief.

452 In his discussion of Henry, his Honour accepted that the power to stay proceedings and the power to grant an anti-suit injunction are governed by separate considerations, though they are related and draw on similar concepts. The trial judge was careful to distinguish Henry on its facts.[351]

At the outset of its consideration of the authorities, the High Court emphasised the distinction between the power of a court to stay proceedings and the power to grant anti-suit injunctions, noting, nevertheless, that in some cases the power to stay a court's own proceedings includes, as an aspect of that power, the power to grant an anti-suit injunction.[352]

454 Although the decision to refuse to stay local proceedings and the decision to injunct foreign proceedings fall to be determined on the basis of discrete factors,[353] the concepts of vexation and oppression are the touchstone of both. As the first and second respondents submit, it would be erroneous to argue that these concepts carry different meanings in these different contexts.

455 In our view, it was clearly open to his Honour to view the High Court's observations in Henry as informative of the concepts of oppression and vexation in the context of anti-suit injunctions. In light of the passages in the trial judge's reasons already referred to, Sunland's submission cannot be maintained. Rather, consistently with the High Court authority in Henry and CSR to which his Honour referred, his Honour held that proceedings would be prima facie vexatious or oppressive if a party sought the same relief in both proceedings.

456 There is no error in the trial judge's reasoning on this ground.

Onus and evidence required to establish oppression and vexation

457 The trial judge accepted that the onus is on the party seeking injunctive relief to establish prima facie vexation or oppression in terms of there being nothing to be gained by the party pursuing the foreign proceedings.[354] It is then for the party resisting such relief to establish that there is some juridical advantage to be gained or legitimate interest in bringing and pursuing the foreign proceeding.[355]

458 Sunland, relying on Finkelstein J's judgment in TS Production, submits that the onus is on the applicant to 'shew that there is vexation in point of fact.'[356] Sunland further submits that the respondents have failed to discharge the onus upon them since there was no evidence that Joyce had been put to any additional cost, expense or harassment beyond that involved in defending the criminal charges brought against him by the Dubai prosecutor. It submits that neither Reed nor Prudentia, having chosen not to appear in the Dubai penal proceedings, can be vexed by proceedings in which they not participating.[357]

459 It is true that existence of simultaneous proceedings alone does not establish vexation and oppression. Something more is needed. The passage from of Finkelstein J's reasons upon which Sunland relies states that the applicant must 'shew that there is vexation in point of fact that is to say, that there is no necessity for harassing the Defendant by double litigation'.[358]

460 Justice Gordon (with whom Stone J agreed) in her reasons in TS Production, also discussed what, in addition to the mere co-existence of proceedings, was required to constitute vexation or oppression. Her Honour observed:

In this case, the only "something more" to which the appellant could point to was the inefficiency and additional cost that would be incurred if both proceedings were allowed to go ahead. The presiding judge appears to have accepted this submission (see reasons of Finkelstein J at [35]-[37]); however, I cannot. It is not enough to observe that prosecution of the two proceedings may be, even would be, burdensome. The references to "unjustified" and "unfairly" are important. When it is understood that the rights and relief in issue in the two proceedings are different, and that "something ... can be gained by [the foreign proceedings] over and above what may be gained" in this Court, it is not arguable that it is either unjustified or unfair to maintain claims based on the US rights in the Illinois proceedings simultaneously with claims based on the Australian rights in the Federal Court.[359]

461 These passages support the view that the focus of the inquiry as to whether proceedings are vexatious or oppressive is not primarily on the additional expense and cost to the defendant, but rather on whether the bringing of a second proceeding in respect of the same controversy is unnecessary, 'unjustified' or 'unfair'. The authorities indicate that what is to be established in evidence is not primarily that the duplication of proceedings will lead to additional cost, expense, or harassment, but rather that there is nothing to be gained from the parallel proceeding; alternatively, that complete relief is available in a single proceeding. If there is a legitimate advantage that can be gained, the fact that the defendant will suffer additional cost and harassment is easily outweighed.[360] The authorities show that what is required is not a straightforward balancing exercise that weighs the cost and harassment incurred by an applicant (and presumably their ability to bear that cost and harassment) against the advantage gained by the party bringing the proceeding. Rather, as follows from the majority's reasoning in CSR, the balance is skewed heavily in favour of allowing a party to proceed when there is something substantial that may be gained in the foreign proceedings and is skewed heavily against so allowing when there is not. [361]

462 In our view, his Honour was correct in holding that once the applicant has established that a party is seeking to maintain two proceedings that seek substantially the same relief in two jurisdictions, the onus shifts to that party to show that maintaining the two proceedings is justified.[362]

463 The fact that there was no evidence that Joyce will be subject to extra expense and harassment given that he will defend himself in the Dubai penal proceedings in any event, and the fact that Reed and Prudentia have elected not to participate in the Dubai penal proceedings, does not preclude a finding that Sunland's pursuit of its claim in Dubai is vexatious or oppressive.

464 As was submitted before the trial judge, it is an important principle of civil litigation that once parties have had their contest they are generally entitled to assume that that is the end of the matter. Certainty is essential. This is supported by the principles that underpin Anshun estoppel[363] and res judicata. To deprive a party of this finality, without justification, will typically be sufficient to constitute oppression or vexation. Such oppression or vexation may be found in the extra cost and inconvenience, even harassment incurred by the duplication of proceedings, but may also be found if the additional proceeding undermines, without justification, the value of the cost and effort expended in the original proceeding by denying the defendant the opportunity to finally resolve the issues in dispute.

465 In our view, his Honour did not err in finding that it was prima facie vexatious or oppressive for Sunland to pursue its civil right claim notwithstanding that evidence of extra cost and harassment was not put before his Honour.

Sunland has not only commenced the present proceedings in Australia, but has pursued them to completion short of closing submissions, as indicated previously. As discussed further, below, the first, third and fourth defendants submit that this amounts to an election on Sunland's part to pursue proceedings in relation to the same subject matter in Australia, rather than Dubai. In the absence of some juridical or other advantage or "legitimate interest" for or in taking and pursuing the Dubai civil proceedings, as I have found and discussed below, I accept that Sunland has made such an election.[364]

467 The trial judge cited Lord Browne-Wilkinson VC, sitting in the Chancery Division in Australian Commercial Research and Development Ltd v ANZ McCaughan Merchant Bank Ltd,[365] as authority for the proposition that where a plaintiff seeks to pursue the same defendant in two jurisdictions in relation to the same subject matter, 'the plaintiff is required to elect which set of proceedings it wishes to pursue'.[366]

468 It is clear that if a party has made an election as to the forum in which they will proceed, equity may intervene to prevent them pursuing proceedings in relation to the same subject matter in another. In CSR, the majority held:

Thus, for example, it may be that the bringing of proceedings with respect to one claim is properly to be seen, in the circumstances of the case, as an election either not to proceed on another claim or not to proceed in another jurisdiction, thus giving rise to an estoppel by conduct such that it would be unconscionable for that other claim to be pursued or for proceedings to be commenced in another jurisdiction. In cases of that kind an injunction may issue in restraint of the subsequent proceedings.[367]

Another important category of case in which injunctions may be granted is where the plaintiff has commenced proceedings against the defendant in respect of the same subject matter both in this country and overseas, and the defendant has asked the English court to compel the plaintiff to elect in which country he shall alone proceed.[368]

470 Whilst an injunction may issue to prevent a party who has elected in which jurisdiction they will proceed from proceeding in another, it is important to bear in mind that the question of whether a plaintiff is required to make an election depends on the prior question of whether the plaintiff gains a legitimate juridical advantage by persisting with parallel proceedings. We accept the submission of Sunland that if there is such an advantage, no scope for an election arises.

471 We are not persuaded that it was open to the trial judge to find that, prior to 25 January 2011 (when judgment granting the anti-suit injunction was delivered), Sunland had made, or been compelled to make, an election. Though an application had been made in the Federal Court to injunct the Dubai proceedings, that application was refused on the basis that Sunland had a legitimate interest in pursuing its claims in both Australia and in Dubai. By making the application for an injunction in the Federal Court, it may be said that the applicants asked the Court to compel Sunland to elect the jurisdiction in which it would proceed. By holding that Sunland gained a legitimate juridical advantage by pursuing its claim in both jurisdictions, Logan J found that it was not required to make such an election. The fact that Sunland continued to pursue the Australian proceedings does not, without more, provide a basis for departing from the position determined by the Logan J that it was permissible for Sunland to pursue its claim in both jurisdictions. The observation in CSR suggests that the circumstances of the case may give rise to an estoppel by conduct such that it would be unconscionable to maintain a second proceeding. Given that Logan J dismissed the application, it could not be said, prior to the trial judge delivering the Anti-suit Reasons, that it was unconscionable for Sunland to maintain its claim on the basis that circumstances required it to make an election.

472 Nor, in our view, can it be said that circumstances after the trial judge delivered the Anti-suit Reasons required Sunland to make an election. The anti-suit injunction expressly prohibited Sunland from proceeding in Dubai, meaning that while the injunction was in force, Australia was the only jurisdiction in which it could proceed with its claim. Whilst Sunland could have abandoned its Victorian proceeding in favour of proceeding in Dubai at any time prior to and arguably after the issue of the injunction, but chose not to do so, the respondents' submission that Sunland's closing of its case and taking judgment in Victoria can be viewed as nothing less than an election overstates the case. It is, however, unnecessary for us to decide whether Sunland's conduct amounts to an election to proceed in Victoria to the exclusion of Dubai to dispose of the appeal.

473 Sunland submits it will obtain the following juridical advantages by proceeding in Dubai:

1. The benefit of obtaining a judgment enforceable in places where an Australian judgment is not enforceable;

2. The Dubai Court has documentary evidence and witness testimony available to it that was not available to the Supreme Court of Victoria at trial;

3. Sunland could obtain what Logan J described as 'inchoate benefits', including advantages for its reputation in Dubai, from bringing proceedings in Dubai; and

4. Sunland is itself a defendant to a civil right claim brought in the Dubai penal proceedings by Dubai World, the government owned parent company of Nakheel and Dubai Waterfront, for whom Joyce worked and from whom Sunland purchased plot D17.

474 The first three of these juridical advantages, Sunland submits, demonstrate that Sunland could not obtain complete relief in the Supreme Court of Victoria.

475 The trial judge held that whilst it was common ground that an Australian judgment would not be enforceable in the UAE, the fact that the evidence indicated that neither Prudentia, Reed nor Joyce had any assets in the UAE meant there was no sensible commercial purpose in continuing proceedings against them in Dubai.[369] On this basis, his Honour found that Sunland gained no juridical advantage from, and had no legitimate interest in, obtaining such a judgment.[370]

476 In the absence of any assets in the UAE (or it appears in any of the jurisdictions which such a judgment could reach) any benefit that such a judgment could confer would be insubstantial. Though Sunland submits that this may change if assets are brought into the jurisdiction, we agree with the trial judge that this submission is entirely speculative. Beyond stating that a UAE judgment would enable it to recover in the event that assets were brought into a jurisdiction in which a UAE judgment may be enforced, Sunland did not, in its submissions, articulate what the advantage to it consists in.

477 In our view, given the absence of any assets against which such a judgment may be enforced and the consequent lack of any practical advantage to Sunland, this advantage is of little weight.

478 Sunland notes that the respondents did not dispute that the Dubai Court has received evidence obtained from search warrants executed in Dubai and from police interviews in Dubai, including interviews with Joyce. In addition, it submits that because Joyce and Reed both chose not to give evidence at trial and thus avoided exposing themselves to cross examination, further evidence may be available to it in the Dubai proceedings.

479 Justice Logan, in determining the application in the Federal Court, held that:

The Sunland parties may well benefit from the amalgam of their own resources and those of the public authorities in Dubai in demonstrating that Mr Reed has committed fraud there. If so, a guilty verdict will, at the very least, be of singular advantage in terms of assisting their establishing liability in their civil right claim. That advantage will be retained even if, as appears likely, the criminal court were, in the event of a finding of guilt, to decide, given the quantum of the claim, to refer it to a civil court.

Any such advantage would be lost in the event that a restraining order is made and it transpires that the Dubai criminal proceeding is completed before this proceeding is concluded.[371]

480 However, notwithstanding this, the trial judge held that any procedural or evidentiary advantage that may flow from proceeding in Dubai 'is illusory and valueless where the defendants have no assets in the jurisdiction of the court in which the litigation is being conducted or otherwise within reach of its judgments.'[372] To reiterate, Reed deposed that neither he nor Prudentia had any assets in the UAE. Joyce's lawyer deposed that Joyce had approximately AED 103,000 worth of assets in the UAE. More recently Joyce's lawyer deposed that Joyce and his wife had approximately AED 65,594 worth of assets in the UAE.

481 We agree with the trial judge's reasoning. Given our view that obtaining a UAE judgment does not, in the circumstances, constitute any substantial advantage, the availability of further evidence to the Dubai Court does not constitute such advantage.

There may well be inchoate benefits for the Sunland parties, in the UAE, from being seen there to have instituted a civil right claim against, materially, Mr Reed and to be seen actively to be participating in the criminal proceeding in cooperation with the public authorities.[373]

In my opinion the "inchoate benefits" referred to by Logan J are, at best, somewhat nebulous, not relevant and, in any event, of insignificant weight in the present circumstances where the trial in this Court is substantially completed and, consequently, in the face of the type of oppression and vexation identified in the authorities to which reference has been made against which a court ought properly intervene to enjoin pursuit of the foreign proceedings and thereby protect its own processes.[374]

484 For present purposes Sunland bore the onus of establishing that civil proceedings in Dubai would somehow advance its reputation in a way or ways that resolution of the Dubai criminal proceedings would not. Whilst it is feasible that Sunland will gain advantages from continuing with its proceedings in Dubai, including benefits to its reputation, any such advantage is insubstantial and speculative. No evidence was led that substantiated these benefits. Further, were benefits of this kind found to constitute legitimate juridical advantages, this would provide a basis for bringing multiple proceedings seeking the same relief in any jurisdiction in which a company had a reputation it considered would be enhanced by the bringing of proceedings. The Court was not taken to any authority supporting such a position.

485 We agree with the trial judge that these inchoate benefits are of insignificant weight.

486 The trial judge considered the evidence given by Ms Hamade that Sunland could not fully defend itself against the civil right claim of Dubai World without, at the same time, pursuing its own civil right claim.[375] Ms Hamade's evidence was that in defending itself against Dubai World's civil right claim, Sunland could do one of three things:

1. Sunland could avoid liability by showing the court that one or more of the other defendants caused all of the damage to Dubai World, and that Sunland was not responsible for any of the damage.
2. Sunland can ask the court to divide the liability between the defendants, with each defendant paying a share that is fair, depending on how much of Dubai World's damage they are responsible for.
3. If the court finds that Sunland and the defendants are each liable to Dubai World for all Dubai World's damage, Sunland can ask the court to allow Sunland to recover some of the money that Sunland has to pay to Dubai World from the other defendants, depending on how much of the damage those other defendants are responsible for.

487 Ms Hamade opined that if Sunland did not pursue its own civil right claim, it could not ask the Dubai court to make any order allowing it to recover money it may be ordered to pay to Dubai World from another defendant.[376]

488 The trial judge was critical of aspects of the evidence of Ms Hamade. In particular, it appears that she only had access to a translation of the first two pages of the Dubai World claim.[377] His Honour held:

In this respect Mr Rush QC submitted that Ms Hamade has offered an opinion without seeing the entirety of the translation of the document and has left unexplained the inclusion of entities that are not defendants in the civil proceeding. In my view the latter omission tends to detract from her opinion on Dubai criminal and civil procedure in favour of the opinions of others, particularly Mr Juma, because only the provision of a complete English translation would provide an essential factual base for the Court to consider itself and thus be in a position to properly assess her opinion evidence.[378]

489 The trial judge did not accept that Ms Hamade's evidence supported the claim that Sunland could not defend itself against Dubai World or would be prevented from seeking contribution against parties other than Joyce and Reed if it did not pursue its own civil right claim. The trial judge held that:

Ms Hamade's evidence does not indicate that Sunland would, if the relief sought by Reed and Joyce were granted, be inhibited from defending its position in the Dubai World proceedings or that it would be precluded from seeking indemnity or contribution from defendants in those proceedings other than Reed or Joyce. Any suggestion that Sunland would be prejudiced as a result of the inhibition from seeking indemnity or contribution from Prudentia, Reed or Joyce is, in my view, without foundation as any such claim or claims are of no value in Dubai proceedings in the absence of any assets of Prudentia, Reed or Joyce in that jurisdiction or those in reach of its judgments, for the reasons already indicated.[379]

490 This Court was not referred to any authority in support of the proposition that the possibility of improving one's prospects of successfully defending a claim by a party can constitute a legitimate advantage for the purposes of pursuing a separate claim against a different set of parties. Even assuming this did constitute a legitimate juridical advantage, we are not persuaded that Sunland has established that pursuing their civil right claim was necessary for them to adequately defend themselves against the Dubai World proceeding.

491 The evidence of Mr Juma was that a civil right claim cannot be issued against a person who is not an accused in the primary criminal proceedings. It does not appear that Sunland is an accused in the Dubai penal proceedings. In these circumstances, it appears Dubai World's claim against Sunland is unsustainable.

492 It follows that we find that the trial judge did not err in finding that Sunland will not gain a legitimate juridical advantage by pursuing its civil right claim in Dubai. In our view, the juridical advantages contended for are insubstantial and of little significance; in the circumstances, it would not be unjust, if it came to it, for Sunland to be deprived of them.

Sunland's claim in Dubai undermines the processes of this Court

493 Before the trial judge, and on appeal, it was submitted that the injunction should also be maintained on the basis that it is necessary for the Court to protect the integrity of its own processes. It was submitted that this consideration was particularly significant in this case as it was one that involved Australian companies and Australian citizens.[380]

494 The trial judge held that the fact that Sunland had closed its case in the Supreme Court meant that the issues arising at the time of the application before the trial judge were different to those before Logan J. The trial judge held:

The present situation is now significantly different from that confronting Logan J as the Australian proceedings are well advanced and the Sunland case closed pending closing submissions as the final step in the trial. In these circumstances, I am of the opinion that the overriding considerations now relevant to the application are considerations of vexation and oppression flowing from the foreign proceedings and the effect of those proceedings on the integrity of the processes of this Court - including res judicata, issue estoppel and the like, matters to which reference is made below.[381]

495 It was submitted on appeal that allowing Sunland to pursue its proceeding in Dubai, having now received a judgment of the Trial Division, is an abuse of the Court's process and that to allow Sunland to re-litigate these claims in another forum would undermine the decision of the trial judge.

496 In support of this submission, Prudentia and Reed relied on Beckkett Pte Ltd v Deutsche Bank AG.[382] In that case, Beckkett, a Singaporean company, commenced proceedings against Deutsche Bank in Singapore in respect of a loan provided to it by Deutsche Bank. The trial judge awarded nominal damages against the bank. Beckkett appealed to the Court of Appeal and also commenced proceedings in Indonesia in relation to the same issues in dispute in the Singapore proceedings. The Singapore Court of Appeal issued an injunction to restrain Beckkett from proceeding in Indonesia.

497 The Court held that Beckkett's commencement and pursuit of the Indonesian action 'amounted to an attempt to undermine the judgment of Kan J who had already decided the dispute between Beckkett and DB [Deutsche Bank] on the merits.'[383]

498 Counsel for Reed and Prudentia submitted that this was the only known authority where an injunction was issued consequent upon a judgment being obtained. It was acknowledged that the present circumstances are distinguishable since the Dubai proceedings were issued well before the conclusion of the trial. Nevertheless, counsel submitted that the fact that there is now a judgment in the proceeding means that the matter ceases to be one that involves only the competing interests of the parties but also involves a public interest in ensuring that the Court's processes are not abused.[384]

499 We accept that submission. In our view, Anshun estoppel and res judicata are principles upon which the respondents should be entitled to rely. These principles would be undermined if Sunland were permitted to relitigate its claim in another jurisdiction. The decision to grant the injunction may also be upheld on the basis that it is necessary to protect the integrity of the processes of this Court.

500 In addition to the grounds already considered, Sunland's Notice of Appeal asserted that the trial judge failed to give sufficient weight to the issue of comity and the need to exercise the power to grant an anti suit injunction with caution. In addition, it asserts that the trial judge erred in failing to conclude that it was premature to consider the grant of an anti-suit injunction until the outcome of the Dubai penal proceedings were known.

501 In our view, no error is disclosed in the trial judge's consideration of comity. Quite properly, there was no suggestion in his Honour's reasoning of any lack of confidence in the Dubai Court's ability to do justice between the parties. His Honour observed that the authorities emphasised that a degree of caution is required of a court in relation to the exercise of the power to grant an anti-suit injunction.[385] However, he concluded that:

Finally, it was submitted on behalf of Reed and Joyce that the caution which authorities indicate should be applied by a court considering an application for an anti-suit injunction and the importance of comity are relevant but, in the present circumstances, are overwhelmed by the circumstance of vexation and oppression involved in the maintenance of the civil proceedings in Dubai by Sunland and its consequent undermining of the integrity of the processes of this court. In my view this is correct and, further, comity issues do not weigh heavily given the issues of vexation and oppression arising from the maintenance of the foreign proceedings, as discussed and because the effect of the grant of the relief sought in the Dubai civil proceedings will be minimised, going only to an aspect of the part played by one of many parties, Sunland, and then only with respect to its claim or claims.

...

In concluding these reasons I do stress that nothing contained in them is intended as any comment or reflection on the courts of Dubai, their practices and procedures or in any other respect, comparatively or otherwise - nor, of course, on the laws of Dubai or, more broadly, the UAE. Any such comment or reflection would be quite impertinent and entirely inappropriate. [386]

502 Given that Sunland chose to pursue its claims against the respondents in the Victorian Supreme Court, and that it is vexatious or oppressive for it to continue to pursue those claims in Dubai, Sunland's submission that it was premature to consider the grant of an anti-suit injunction until the outcome of the Dubai penal proceedings is ill-founded.

503 On 20 May 2013, the Dubai Court delivered judgment in the Dubai penal proceedings. The Dubai Court convicted Reed and Joyce of fraudulently misappropriating a sum of money from Sunland and sentenced them to ten years' imprisonment, ordered them to jointly return the sum of AED 44,105,780 and fined them an additional sum of AED 44,105,780.[387]

504 Assuming that the money to be returned is to be returned to Sunland, the judgment of the Dubai Court in effect awards Sunland a civil remedy notwithstanding that Sunland withdrew its civil right claim.[388]

505 The evidence of Diana Hamade is that after Reed and Joyce have exhausted their rights of appeal, Sunland is entitled to enforce the Court's order for payment directly without the need to file a civil claim. Ms Hamade opines that:

Following the judgment is [sic] rendered final and enforceable when the 15 days of grace period for filing before the court of cassation expires without the plaintiffs filing their appeal or following the court of cassation passing its judgment and upholding the court of appeal decision, Sunland will be able to proceed with executing the judgment through an execution judgment directly and without the need to file a civil claim with the civil court for the sum referred to in the judgment.

506 Ms Hamade further opines that it is not necessary for any court to make further factual or other findings in order for Sunland to enforce the judgment. This evidence was the only evidence as to the process by which Sunland could execute the Dubai judgment.

507 By summons dated 12 July 2013, Sunland Group brought an application pursuant to r 64.22(3) of the Supreme Court (General Civil Procedure) Rules 2005 to adduce further evidence in the appeal. The further evidence sought to be adduced was of two kinds. First, evidence that Reed and Joyce had been convicted by the Dubai Court, along with expert evidence as to the impact of the Dubai Court's judgment on Sunland's prospects of civil recovery in Dubai.[389] Secondly, evidence Sunland submits establishes that Reed and Joyce are impecunious in Australia as well as in the UAE.

508 Sunland sought to rely upon the further evidence to have the injunction dissolved. Upon inquiry by this Court, Sunland expressly declared that it took an all or nothing approach: either the injunction should be fully dissolved or it should not. It was not seeking to vary the terms of the injunction. Although the evidence was that Sunland was not required to pursue a civil claim in order to enforce the judgment, the application proceeded on the basis that executing the judgment in order to obtain this civil remedy would be in violation of the terms of the injunction.

509 In essence, Sunland submitted that the fresh evidence should lead to the injunction being dissolved for the following reasons:

1. As a result of the Dubai Court's judgment, Sunland now has a valuable right in Dubai which constitutes a legitimate juridical advantage.

2. Considerations of comity support the submission that this Court should not prevent it from enforcing the right granted to it by the Dubai Court.

3. If the respondents are impecunious in Australia as well as in Dubai, it cannot be said that complete relief is available in Australia, or that it is an abuse of process for it to pursue its claim in both jurisdictions.

510 Sunland submits that the judgment of the Dubai Court reveals that, contrary to the findings of the trial judge, the advantages to Sunland in pursuing its claim in Dubai are not 'inchoate' or 'nebulous' but rather, that the advantages relied on by Sunland below have now crystallised.

511 That the Dubai Court has made findings which are inconsistent with those made by the trial judge, and appears to have had regard to evidence that was not considered by the trial judge raises, in Sunland's submission, the issue of comity. There is no suggestion that the Dubai Court's decision was not the result of a thorough decision making process. In these circumstances, Sunland submits, considerations of comity weigh in favour of allowing Sunland to enforce its right.

512 Sunland further submits that the respondents' failure to respond to Sunland's request that they state whether they have assets, either in Australia or elsewhere, means that the Court should assume that they have no assets in Australia. Given this assumption, Sunland submits that the lack of assets in the UAE cannot form a basis for preventing it from pursuing its claim in Dubai since it would be unfair to use the lack of assets in UAE to compel Sunland to pursue its claim in Australia, only for it to be met with the same assertion of impecuniosity in this jurisdiction.

513 The respondents oppose the application on multiple bases. The respondents submit that translation of the judgment is ambiguous is many respects, and in particular does not expressly state to whom Reed and Joyce must return the sum. They further submit that significant aspects of Sunland's submissions and the expert opinion of Ms Hamade are inadmissible by reason of s 91 of the Evidence Act 2008 (Vic), which prohibits the use of a judgment of a foreign court to prove the existence of a fact that was in issue in that proceeding.

514 The respondents deny that considerations of comity mean that Sunland should be allowed to enforce its rights under the judgment in Dubai. The respondents submit that Sunland asks the court to permit it to enforce a civil claim in Dubai, which has been found to be groundless by a Trial Division judge of this Court, in circumstances where a significant body of evidence apparently relied upon by the Dubai court was found by the trial division judge to lack credibility. The respondents submit that these significant considerations cannot be overcome by considerations of comity and that in any case, the injunction does not impact the criminal jurisdiction of the Dubai Court but rather restrains the conduct of Sunland as a condition of its rights to litigate in Australia.

515 The respondents submit that the new evidence is not capable of undermining the reasoning of the trial judge. They submit that, for reasons of public importance, this Court should not allow Sunland to use the processes of this Court to have what is in effect a 'second bite of the cherry.'

516 Finally, the respondents submit that there is no evidence of an assertion of impecuniosity in Australia by the respondents. Sunland's submission depends on the Court drawing an inference from correspondence between the parties in relation to a gross sum costs assessment before an associate justice. In this correspondence, Sunland's lawyers expressed their concern that any payment to the respondents in relation to costs would be dissipated and not able to be repaid in the event that Sunland succeeded on some or all of its appeals and sought an assurance that this would not occur. Sunland's lawyers also inquired whether the respondents held any beneficial interest in real property or interests in other property of value. The following day, at the gross sum costs assessment hearing, the lawyers for the third respondent provided Sunland's counsel with a draft form of order which provided, inter alia, that any interim costs paid to Joyce would be held in trust pending the determination of the appeals. On 7 June 2013 the associate justice ordered that the costs paid to Joyce and the costs paid to Reed and Prudentia be held in trust pending the determination of the appeals.[390]

517 In our view, each of Sunland's submissions must be rejected.

518 Notwithstanding the uncertainty in relation to the terms of Sunland's right under the judgment, we accept that it may be said that the advantage to Sunland of proceeding in Dubai has now 'crystallised'. However, Sunland has never articulated what, in the absence of any assets held in Dubai by the respondents, this advantage to them consists in. The fact that this previously speculative advantage has 'crystallised' may mean that it is no longer speculative, however it does not mean it is of greater weight than was previously contemplated. In the absence of assets against which such a right can be enforced, this advantage cannot be given any significant weight.

519 Considerations of comity, though important, are not decisive in this case. Considerations of comity may result in a court refraining from exercising its jurisdiction to issue an injunction where one might otherwise be available. Significant in this case is that there is a previous judgment of the Trial Division of this Court, which, unless and until overturned on appeal, renders the cause of action between the parties res judicata. The extent to which the decision of the trial judge was considered by the Dubai Court in arriving at its judgment is unknown. An affidavit from Prudentia and Reed's lawyer deposes that the trial judge's reasons were translated and provided to the Dubai Court although there is no evidence that they were considered in the Dubai Court's reasons. Although maintaining the injunction will restrain Sunland from exercising, in a foreign country, a right conferred upon it by the courts of that foreign country, in our view, considerations of comity are outweighed by the considerations that support the injunction as set out in these reasons. The injunction restrains Sunland from proceeding in Dubai as a condition of its pursuing its claims before the trial judge, and on appeal, in this Court. In addition, we note that the judgment of the trial judge was delivered first in time. We would think that if any interest in comity arose it would lie with this Court as a starting point.

520 Finally, we are not persuaded that the correspondence in relation to the a costs hearing can ground the inference of impecuniosity. Sunland's request was made in relation to a hearing before an associate justice to address the its concerns about the possible dissipation of costs. These concerns were resolved by further correspondence and the making of appropriate orders by the associate justice. The evidence adduced by Sunland is insufficient to establish that the respondents are impecunious in Australia.

521 Having set out the evidence sought to be adduced, it remains to determine whether such evidence should be admitted as fresh evidence in the appeal.

522 The principles applicable to the question of whether the Court will grant leave to allow fresh evidence in an appeal were not in contest between the parties. Leave should be given only if three prerequisites are satisfied. First, if by the exercise of reasonable diligence such evidence could not have been discovered in time to be used in the original trial. Secondly, if it is reasonably clear that if the evidence had been available at the trial, and had been adduced, an opposite result would have been produced. Thirdly, if the evidence proposed to be adduced is reasonably credible.[391]

523 All parties referred to the Court of Appeal decision in Apostolidis v Kalenik,[392] which cited with approval the judgment of Chernov JA in Foody v Horewood:[393]

the question of whether to admit fresh evidence is largely one of discretion and degree bearing in mind the public interest in finality of litigation and, at the same time, the requirements of justice of the case in hand. Generally speaking, fresh evidence ought not to be admitted when it bears upon matters falling within the field or area of uncertainty in which the trial judge's estimate has previously been made. Exceptionally, however, it may be admitted, if some basic assumption, common to both sides, has been falsified by a subsequent event. More precisely, as Lord Wilberforce observed in Mulholland v Mitchell, courts will allow fresh evidence where to refuse it would affront common sense, or a sense of justice, always keeping in mind that it should be an exceptional event.[394]

524 After considering the evidence sought to be adduced, we are not persuaded that it satisfies the test of exceptional circumstances, nor that it falsifies a common assumption upon which the proceedings below were based, or that to refuse it would affront common sense.

525 Sunland submits that a basic assumption upon which the parties proceeded was that Sunland would not be able to enforce the criminal court's order directly in order to obtain a civil remedy, but rather would have to initiate proceedings in the civil courts.

526 No expert directly addressed the question of whether the criminal court could, or was likely to provide a civil remedy in the absence of a civil right claim, although the possibility of the criminal court making an award of damages was foreshadowed by Mr Juma, albeit in the context of a civil right claim.[395] We are not persuaded that this was a basic assumption upon which the parties proceeded. Nor in our view can it be said that the fact that the Dubai Court appears to have had regard to evidence not considered relevant by the trial judge, and appears to have taken a different view of the evidence of Brown, undermines a common assumption upon which the Victorian proceedings were conducted. Indeed, given that the claims proceeded separately in the criminal court of Dubai and as a civil claim in the Trial Division of this Court on a different evidentiary basis, the possibility of inconsistent findings was likely, if not inevitable.

527 In the circumstances, we reject the admission of the fresh evidence on the ordinary principles. Even if it were received, we would nonetheless hold that admitting the evidence would not have altered our decision.

528 For the reasons set out above, we would dismiss the application and dismiss the appeal against the grant of the anti-suit injunction.

529 Following the publication of the trial judge's reasons for judgment on 8 June 2012 Prudentia, Reed and Joyce made application for orders for costs. By separate judgment dated 14 September 2012 the trial judge determined that it was appropriate in the circumstances of the case to make a special costs order in the form of an indemnity costs order against Sunland in favour of the defendants. That decision and the orders made in consequence of it are the subject of grounds 62 to 80 of the Amended Notice of Appeal.

530 Having failed in its appeal on the merits, Sunland must first confront the provisions of s 17A(1) of the Supreme Court Act 1986 in order to prosecute its appeal against the cost orders made by his Honour:

(1) An order made by the Trial Division constituted by a Judge of the Court -

(a) by consent of the parties; or

(b) as to costs which are in the discretion of the Trial Division -

is not subject to appeal to the Court of Appeal except by leave of the Court of Appeal or by leave of the Judge of the Court constituting the Trial Division which made the order.

531 Section 17A is the successor to a provision which formally provided that:

No order made by the Court or any judge ... as to costs only, which by law are left to the discretion of the Court, shall be subject to any appeal, except by leave of the Court or judge making the order.

532 No leave to appeal the question of costs has been granted by the trial judge and for the reasons which follow we would refuse such leave.

533 Since Wolfe v Alsop[396] the Court has taken the view that the jurisdiction with respect to costs orders on appeal is dependent upon the grant of leave in cases such as the present where an appeal brought on the merits as of right fails.[397] Because an order for costs where the court below has a discretion is a matter of practice and procedure it seems to us that the grant of leave should be subject to the considerations which affect the grant of leave with respect to interlocutory decisions. Leave should only be granted where:

(a) the decision was wrong, or at least attended with sufficient doubt to justify granting leave; and in addition

(b) substantial injustice would be done by leaving the decision unreversed.[398]

534 In our view the exercise of the trial judge's discretion with respect to costs was not attended by sufficient doubt to justify the grant of leave.

535 In Transport Accident Commission v O'Reilly[399] Ormiston JA observed that it has been accepted for many years that it is extraordinarily difficult to show that a court of first instance or a tribunal with wide discretionary powers has erred in the exercise of its power to award costs, if there be some basis for making an order other than the conventional order in favour of the successful party.[400]

536 In Peet Ltd v Richard[401] Nettle JA (with whom Neave JA agreed) stated the principles governing appellate interference with the relevant discretion as follows:[402]

[A]n appellate court will not overturn a judge's decision on costs unless the judge is seen to have failed to exercise his or her discretion on reasonable grounds or has applied wrong principle or taken a manifestly erroneous view of the facts.

1. The test to be applied is not whether the Court of Appeal would have made the same order, but whether it was reasonably open to the trial judge to do so.[403]

Principles governing a special award of costs

538 It cannot be disputed that the successful respondents are entitled to maintain an award of costs consequential upon their success on the merits of the proceeding. What is now in issue is whether such order should have been made on a special basis.

539 The notice of appeal does not identify any relevant error of underlying principle in his Honour's approach to the question of costs. This is not surprising. His Honour's explanation of the principles relating to the relevant discretion was both careful and correct.

540 More particularly, his Honour identified the foundation of his discretion in s 24(1) of the Supreme Court Act 1986:

Unless otherwise expressly provided by this or any other Act or by the Rules, the costs of and incidental to all matters in the Court, including the administration of estates and trusts, is in the discretion of the Court and the Court has full power to determine by whom and to what extent the costs are to be paid.

541 His Honour then acknowledged that the usual order as to costs is an award to the successful party on a party and party basis. This position is reflected in r 63.31 of Supreme Court (General Civil Procedure) Rules 2005.

542 In turn, as his Honour said, guidance is given by previous decisions of the courts as to circumstances that would warrant the making of a special costs order. His Honour referred to the identification by Sheppard J in Colgate-Palmolive Co v Cussons Pty Ltd[404] of some categories of circumstances which may warrant a special costs order:[405]

[T]he making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud; evidence of particular misconduct that causes loss of time to the Court and to other parties; the fact that the proceedings were commenced or continued for some ulterior motive or in wilful disregard of known facts or clearly established law; the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions; an imprudent refusal of an offer to compromise and an award of costs on an indemnity basis against a contemnor.

543 His Honour also cited the observations of French J in J-Corp Pty Ltd v Australian Builders Labourers' Federated Union of Workers (WA Branch) (No 2):[406]

Although there is said to be a presumption in such cases that the action was commenced or continued for some ulterior motive or in wilful disregard of known facts or clearly established law, it is not a necessary condition of the power to award such costs that a collateral purpose or some species of fraud be established. It is sufficient, in my opinion, to enliven the discretion to award such costs that, for whatever reason, a party persists in what should on proper consideration be seen to be a hopeless case ...[407]

544 He further referred to the summary of authorities undertaken by Harper J in Ugly Tribe Co Pty Ltd v Sikola:[408]

In seeking costs on an indemnity basis, the first defendant is asking the Court to depart from its usual course: Spencer v Dowling.[409] Special circumstances must be present to justify such a departure: Australian Electoral Commission v. Towney (No 2).[410] These include:

(i) The making of an allegation, known to be false, that the opposite party is guilty of fraud: Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd [1988] FCA 202; (1988) 81 ALR 397.

(ii) The making of an irrelevant allegation of fraud: Thors v Weekes (1989) 92 ALR 131.

(iii) Conduct which causes loss of time to the Court and to other parties: Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd (unreported, Federal Court, French J, 3 May 1991).

(iv) The commencement or continuation of proceedings for an ulterior motive_: Ragata Developments Pty Ltd v Westpac Banking Corporation_ (unreported, Federal Court, Davies J, 5 March 1993).

(v) Conduct which amounts to a contempt of court: EMI Records Ltd v Ian Cameron Wallace Ltd [1983] Ch 59.

(vi) The commencement or continuation of proceedings in wilful disregard of known facts or clearly established law_: J-Corp Pty Ltd v Australian Builders Labourers Federation Union of Workers (WA) Branch (No 2)_ [1993] FCA 42; (1993) 46 IR 301.

(vii) The failure until after the commencement of the trial, and without explanation, to discover documents the timely discovery of which would have considerably shortened, and very possibly avoided, the trial: National Australia Bank v Petit-Breuilh (No 2) (unreported, [1990] VSC 395, 18 October 1999).

The categories of special circumstances are not closed: Tetijo Holdings, supra. The cases must not, therefore, be read 'in an endeavour to establish a set of inflexible guidelines which should thereafter be determinative of the manner in which the Court's discretion is to be exercised [for this] would be to fetter the Court's discretion': National Australia Bank v Petit-Breuilh, supra.

545 As his Honour concluded, authority establishes that the circumstances in which a special costs order may be justified include cases in which a proceeding is commenced or continued either for some ulterior motive or in wilful disregard of the facts or clearly established law.

546 In turn his Honour cited the decision of Woodward J in Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd[411] that a special costs order may be warranted where:

[I]t appears that an action has been commenced or continued in circumstances where the applicant, properly advised, should have known that he had no chance of success. In such cases the action must be presumed to have been commenced or continued for some ulterior motive, or because of some wilful disregard of the known facts or the clearly established laws.[412]

547 His Honour also referred to the decision of this Court in Macedon Ranges v Thompson,[413] which reiterated the principles stated in J-Corp Pty Ltd v Australian Builders Labourers' Federated Union of Workers (WA Branch) (No 2)[414] and Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd.[415]

548 Next, his Honour cited the judgment of Lindgren J in NMFM Property Pty Ltd v Citibank Limited (No 11)[416] as authority for the proposition that the knowledge of a party in relation to past conduct may be relevant to assessment of the conduct of that party as a litigant and that it is the conduct of the party that ultimately falls to be assessed and not that of its legal advisors.

549 His Honour also cited Dal Pont[417] with respect to the potential inference that may be drawn from the prosecution of a hopeless action with respect to ulterior motive or wilful disregard of known facts and law:[418]

A special costs order may ensue where it appears to the court 'that an action has been commenced or continued in circumstances where the applicant, properly advised, should have known that he had no chance of success', in which case the action 'must be presumed to have been commenced or continued for some ulterior motive, or because of some wilful disregard of the known facts or the clearly established law'.[419] Despite this 'presumption', it is not a prerequisite to the power to award special costs that a collateral purpose or a species of fraud be established. It is sufficient to enliven the discretion that, for whatever reason, a litigant, whether as plaintiff or defendant,[420] persists in what on proper consideration should be seen to be a hopeless case.[421] As explained by BW Ambrose J in Re SCA Properties Pty Ltd (in liq):[422]

In some cases it is appropriate to make an order for indemnity costs to make it known that the court will not readily accept that its time and the successful litigant's money can be wasted on totally frivolous and thoroughly unjustified proceeding. If it appears it is not for the bona fide purpose of protecting and enforcing a legal right but to achieve an ulterior or extraneous purpose that in itself is justification for the making of an indemnity order.

550 His Honour also considered the provisions of the Civil Procedure Act 2010 and summarised significant aspects of the relevant provisions as follows:[423]

(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]

551 His Honour further noted that notions of abuse of process may inform a decision as to costs, including that the notion that if a collateral purpose is the predominate purpose of a moving party in a proceeding the proceeding will be improper and constitute an abuse of process.[429]

552 Prudentia, Reed and Joyce sought special costs orders at trial on the following broad bases:

(a) the proceedings were commenced or continued in wilful disregard of known facts or clearly established law, thus in circumstances where Sunland, properly advised, should have known that it had no chance of success; and

(b) where, in all the circumstances, the proceedings must be presumed to have been commenced or continued for a collateral purpose or ulterior motive.

553 Ultimately, his Honour concluded that special costs orders were warranted on these bases and further concluded that the award of such costs was consistent with the Civil Procedure Act because there had been a series of incidental breaches of Sunland's obligations under that Act in the course of the prosecution of the proceeding. After summarising the relevant portions of the Civil Procedure Act his Honour observed:

For the reasons which follow it is not necessary to discuss the application of these provisions specifically. Nevertheless, as indicated in detail in these reasons, there has clearly been contravention of the overarching obligations on the part of Sunland. Accordingly the Court's discretion as to costs has been exercised in accordance with these provisions and having regard to the nature and extent of these contraventions, on the bases and the manner set out below.[430]

554 In our view his Honour did not err in the principles which he applied to consideration of the respondents' application. The bases articulated in principle were properly capable of founding the exercise of the relevant discretion as to costs.

The factual basis of his Honour's costs order

555 The notice of appeal takes issue with a series of his Honour's specific findings of fact in his judgment on costs.[431] The basis of these grounds fails with the appeal on the merits. Our reasons with respect to such appeal demonstrate that none of the impugned findings was manifestly wrong. In particular our findings with respect to the making of the representations alleged, falsity, reliance, and damage are fatal to Sunland's case on the contested issues of fact raised by these grounds.

556 Likewise any appeal on costs must fail insofar as it is founded upon an attack upon his Honour's overall conclusions of fact. Grounds 72 and 74 are as follows:

1. The trial judge erred in finding that inconsistencies in Sunland's evidence and aspects of Sunland's submissions at trial supported the position that Sunland commenced or continued the proceedings with wilful disregard for known facts and law.

1. The trial judge erred in finding that Sunland could not have had any basis for believing:

74.1 that it could establish the representations said to have been made;

74.2 that it relied upon the representations; and

74.3 that it suffered loss and damage.

557 Once again our conclusions with respect to the appeal on the merits demonstrate that none of these findings were manifestly wrong.

558 Ground 73 alleges an error in approach with respect to the assessment of the strengths and weaknesses of Sunland's case:

1. The trial judge erred in exercising his discretion to make a special costs order by making an ex post facto assessment of the strengths and weaknesses of Sunland's case that relied on hindsight.

559 His Honour dealt with this issue at [39]-[43] of his decision. As his Honour held, it does not lie in the mouth of Sunland to say its legal advisors were entitled to take portions of the evidence of its own officers Brown and Abedian at face value in the framing and conduct of its case without regard to the fundamental inadequacies of Sunland's case. In turn he stated in part:

In this case, Sunland relied principally upon the evidence of two of its most senior officers, Brown and Abedian. They are senior officers of a public company, clearly with access to high level legal advice. Brown, and less so Abedian, were the prime participants in relation to the Plot D17 transaction on behalf of Sunland. They, particularly Brown, know exactly what happened, or did not happen, in the course of that transaction and they must have known that, in a case of the type which Sunland brought, it would be necessary to establish with a high degree of clarity and particularity the representations said to have been made, that Sunland relied upon the representations and that loss and damage followed. To the extent that elements of the case Sunland sought to pursue may not have been clear to intelligent and relevantly experienced non-lawyers such as Brown and Abedian, there can be no doubt that they have had the benefit of high level legal advice being available at all relevant times. Ms Julianne Stringer (Clyde-Smith) and Eames immediately come to mind in connection with events as they unfolded in the course of the Plot D17 transaction. In the preparation of its case in the Federal Court of Australia and this Court, Sunland has availed itself of the advice of Senior Counsel, junior counsel and a substantial law firm. Sunland was well experienced and, in my view, it is implausible to think that it did not fully avail itself of its experience in property development in Dubai and Australia and take advantage of the legal resources available to it.[432]

561 The notice of appeal also attacks his Honour's findings of fact with respect to the conduct of the proceedings. Ground 62 of appeal states as follows:

1. The trial judge erred in finding that Sunland had contravened its overarching obligations under the Civil Procedure Act 2010 (Vic), and in finding that the nature and extent of those contraventions justified making a special order as to costs.

562 We do not accept that his Honour's decision was founded on the basis of breach of Sunland's obligations under the Civil Procedure Act. His Honour's findings went no further than findings that the award of special costs on the grounds advanced by Prudentia, Reed and Joyce were consistent with the Civil Procedure Act by reason of the breaches of the Act he identified.

563 In turn each of these breaches involved findings of fact with respect to the provision of proper discovery which were plainly open to his Honour and ground 62 must be rejected. A further breach of Sunland's discovery obligations was also demonstrated in the course of the hearing of the appeal but we will say nothing further about this aspect of the matter because as we read his Honour's reasons this aspect was not central to the exercise of his discretion.

564 Lastly, Sunland challenges the trial judge's findings as to ulterior purpose:

1. The trial judge erred in finding that Sunland commenced the proceedings for an ulterior purpose, including that it commenced the proceedings:

75.1 to protect Sunland's, and Brown's position in Dubai, including to protect them from being charged with criminal offences in Dubai; and

75.2 to create a basis for requesting the return of Brown's passport from the Dubai authorities.

76 The trial judge erred in finding that:

76.1 Abedian and Brown invented allegations that falsely implicated Joyce in a nonexistent fraud;

76.2 Brown fabricated his version of events from the outset in order to protect his own personal safety; and

76.3 The Dubai authorities regarded the fee paid to Prudentia/Hanley as a bribe, and that Brown knew this.

565 For present purposes it is sufficient to say first that, as his Honour makes clear, the exercise of his discretion was warranted by the finding that Sunland commenced and continued the proceeding in wilful disregard of known facts and the law without any finding of ulterior purpose.

566 Secondly, his Honour's findings of fact as to ulterior purpose were made in part with the benefit of observations of the oral evidence of Brown and Abedian and this must cause an appellate court to exercise restraint.[433]

567 Thirdly, the specific findings attacked in ground 76 were plainly open to the judge having regard to the evidence as to the content and context of statements made by Brown and Abedian to the Dubai authorities to which we have already referred.

568 Fourthly, his Honour's findings of fact with respect to ulterior purpose were open to him. In particular in our view it could not be said that there was manifest error in concluding that Sunland commenced and continued the proceeding with a view to achieving the collateral purpose of defending its commercial reputation and protecting the position of Brown.

569 Sunland must go further than persuading this Court that the trial judge 'erred' in the sense that the Court would not itself have made findings of ulterior purpose. Once it is accepted that the findings were open then this Court should not interfere.

570 In the present case the evidence was replete with instances of conduct by Brown, Abedian and Sunland which was consistent with a motivation of ulterior purpose. We instance Brown's initial untruthful exaggeration of the roles of Reed and Joyce to the investigating authorities; the changes in Brown's version of events over time; the direct discussion of the desirability of instituting legal proceedings in Australia with the Dubai prosecutor; the circumstances in which Brown's passport was released; and the terms of the statement made to the Australian Stock Exchange by Sunland at that time. It was for the judge to evaluate the whole of such evidence in conjunction with his finding that Sunland's case was hopeless and to draw such inferences as to ulterior purpose from the whole of the evidence as he was persuaded of. In our view it was open for him to conclude:

Any of the facts and circumstances relied upon by the defendants in support of Sunland's alleged ulterior purpose in commencing and continuing these proceedings would not, in themselves, necessarily lead to or provide a basis for drawing this inference. Nevertheless, I am of the view that all these facts and circumstances, including the way in which Sunland's case was pleaded, the extent to which it failed in respect of all essential elements and Sunland's dealing with the Dubai authorities provides a strong basis for a finding of ulterior purpose on Sunland's part.[434]

571 Fifthly, insofar as the claim in deceit was in substance one for fraud, the finding that the claim was made in wilful disregard of the facts and law carried with it the necessary implication that Sunland had made allegations of fraud which it knew or ought to have known were false.[435] In our view his Honour was correct to recognise that this aspect of the matter provided a further potential basis for the exercise of his Honour's discretion.[436]

572 In our view Sunland has not discharged the onus which it bears to establish that his Honour's exercise of discretion was not reasonably open to him. Leave to appeal against the special costs order must be refused.

An Australian property development company listed on the ASX

The second appellant in the substantive appeal and the appellant in the anti-suit injunction appeal

A British Virgin Islands company owned and controlled by Sunland Group

Chairman of Sunland Group; former Managing Director of Sunland's Dubai Branch

Former International Design Director of Sunland Group (2006); former Chief Operating Officer of Sunland's Dubai Branch (2007)

A major Dubai government development entity, creating large scale projects and establishing the master developer entity for each.

Master developer entity created by Nakheel for the Dubai Waterfront project

The fourth respondent in the substantive appeal and the third respondent in the anti-suit appeal