Sunland Waterfront (BVI) & Ors v Prudentia Investments Pty Ltd & Ors [2013] VSCA 266

discretion to grant stay - Whether substantial prospect that special leave to appeal will be granted - Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) [1986] HCA 84; 161 CLR 681 - Application refused.

1 The appellants seek a stay of orders relating to the costs of the trial. This Court, the Court of Appeal, dismissed an appeal by Sunland Water Front (BVI) and Sunland Group Limited ('Sunland')[1], the appellants, against the decision of the trial judge refusing its claim for damages of approximately AUD $14 million following a land transaction in Dubai.[2] The Court of Appeal also dismissed Sunland's appeal against the decision issuing an anti-suit injunction that prevents Sunland from pursuing a similar claim in Dubai and its appeal against a decision ordering that it pay the defendants' costs of the trial of the proceedings on an indemnity basis.[3]

2 To recapitulate the background, on 1 October 2007, Sunland entered into an agreement with Dubai Waterfront Front ('DWF'), a government-owned land owner in Dubai, to buy land in Dubai known as Plot D17, for the equivalent of approximately AUD $63 million. That same day, after an agreement was first entered into with Prudentia Investments Pty Ltd ('Prudentia'), the first respondent, Sunland paid approximately AUD $14 million as a 'consultancy fee' to Hanley Investments Pty Ltd ('Hanley'), the second respondent. The fee was initially payable to Prudentia but was paid to Hanley for tax purposes.

3 Sunland contended that it was induced by misleading and deceptive conduct on the part of Prudentia and its then managing director, Angus Reid, the third respondent, and on the part of Matthew Joyce, the fourth respondent, the then managing director of DWF, to believe that Reid or Prudentia had a right over Plot D17 and that it was necessary to pay the fee to Prudentia in order to acquire the land from DWF. Sunland brought claims under the Trade Practices Act 1974 (Cth), the Fair Trading Act 1999 (Vic) and for the tort of deceit claiming it suffered loss and damage as a result of paying the fee.

4 In its reasons for dismissing Sunland's claims of misleading and deceptive conduct and deceit, this Court held:

• Sunland's case at trial was that Joyce and Reid represented to it that Reid or Prudentia had a legally enforceable right to acquire Plot D17 but the evidence Sunland adduced failed to establish that any such representation was made. Sunland's cause of action in deceit, which also depended on establishing that such a representation was made, fail for the same reason.[4] Although the respondents admitted that the representations that Sunland pleaded and tried to prove at trial were false, this was immaterial given Sunland did not prove that the representations had in fact been made.[5]
• Even assuming that the pleaded representations were in fact made, Sunland did not pay the fee in reliance on them. At no relevant time did anyone at Sunland believe that Prudentia or Reid had a right to acquire, or a legally enforceable interest in Plot D17.[6]
• Sunland had not demonstrated that it suffered loss and damage resulting from the representations. The consequence of the alleged wrongful conduct to Sunland's financial position was the sum of both the expense of the fee paid and the benefit gained from the agreement to purchase plot D17. Had the fee not been paid, it was likely that Prudentia would have negotiated to acquire plot D17 for itself and would then have sold the plot to Sunland at a premium.[7]
• The trial judge did not err in making adverse findings concerning the credit of Brown and Abedian.[8] Nor did his Honour err in declining to have regard to evidence relating to the distribution of part of the fee to Joyce, documents alleged to be forged, or to evidence of Prudentia's internal communications. Any failure of the judge to consider or discuss certain aspects of this evidence was justified, or of no material consequence.[9]

5 On 27 January 2012, the trial judge issued an injunction that prohibited Sunland from pursuing similar claims against Reid, Joyce and Prudentia in Dubai. In our reasons for dismissing Sunland's appeal claiming that the antisuit injunction should be dissolved, the Court held:

• It was vexatious or oppressive for Sunland to pursue parallel proceedings against Reed, Joyce and Prudentia in Victoria and Dubai.[10]
• Given that none of the respondents have assets in Dubai, or in countries where a judgment of the Dubai Court may be enforced, Sunland would not gain a legitimate advantage from continuing its proceeding in Dubai.[11]
• Sunland should not be allowed to re-litigate claims that have been determined by this court a second time in another jurisdiction since this would undermine a judgment of the Trial Division of this Court.[12]
• The evidence sought to be adduced by Sunland, that after the hearing of the appeal the Dubai Court had convicted and sentenced Reed and Joyce to 10 years' imprisonment and ordered that they return a sum of money and pay a fine, was not admitted as further evidence in the appeal, but even if it were, it would not have altered the determination of the appeal.[13]

6 Further, in our reasons for dismissing Sunland's appeal against the judgment that it pay the defendant's costs of the trial on an indemnity basis, the Court of Appeal held:

• Having failed in its appeal on the merits, Sunland required leave of the Court to appeal the judgment awarding costs against it.[14]
• A special costs order may be justified where a proceeding is commenced or continued either for some ulterior motive or in wilful disregard of the facts or clearly established law. [15]
• The exercise of the trial judge's discretion with respect to costs was not attended by sufficient doubt to justify the grant of leave.[16]

7 Relevantly, on 7 June 2013, Wood AsJ, following the hearing of a taxation on costs of the trial ordered:

1. Pursuant to Rule 63.56(3) of the Supreme Court (General Civil Procedure) Rules 2005, the costs of the fourth defendant pursuant to the orders of the Honourable Justice Croft made on 27 January 2012 and 14 September 2012 are assessed at not less than the sum of $30,427.70 (payable by the second plaintiff only) and $2,360,251.30 (payable by both plaintiffs) (Interim Joyce Sum).
2. By 14 June 2013, the second plaintiff pay the Interim Joyce Sum to the Fourth defendant's solicitors, Norton Rose Fulbright Australia, such sum to be held by Norton Rose Fulbright Australia in an interest bearing trust account until the determination of the appeals in S APCI 2012 0017 and S APCI 2012 0117 and not distributed until after Norton Rose Fulbright Australia provides 21 days' written notice to the plaintiffs'' solicitors of their intention to do so, or otherwise until further order.
3. Pursuant to Rule 63.56(3) of the Supreme Court (General Civil Procedure) Rules 2005, the costs of the first and third defendants pursuant to the orders of the Honourable Justice Croft made on 27 January 2012 and 14 September 2012 are assessed at not less than the sum of $38,234.23 (payable by the second plaintiff only) and $3,519,149.77 (payable by both plaintiffs) (Interim Prudentia Sum).
4. By 14 June 2013, the second plaintiff pay the Interim Prudentia Sum to the first and third defendant's solicitors, Herbert Smith Freehills, such sum to be held by Herbert Smith Freehills in an interest bearing trust account until the determination of the appeals in S APCI 2012 0017 and S APCI 2012 0117 and not distributed until after Herbert Smith Freehills provides 21 days' written notice to the plaintiffs' solicitors of their intention to do so, or otherwise until further order.

8 Further, by way of background, in addition to our substantive judgment delivered on 6 September 2013, on 26 September 2013 this Court delivered a judgment on the costs of the appeal. The Court ordered:

1. For the purposes of Rule 64.06(1) the appellants be granted leave to file and serve their Amended Notice of Appeal dated 10 April 2013 and that the appeal S APCI 2012 0117 be taken to have been instituted upon this Amended Notice of Appeal.
2. The appellants pay the respondents' costs of appeal S APCI 2012 0117 and costs of the application to adduce fresh evidence in appeal S APCI 2012 0017, such costs to be taxed on an indemnity basis in the absence of agreement.
3. The appellants pay the respondents' costs of appeal S APCI 2012 0017, such costs to be taxed on a standard basis in the absence of agreement.
4. The orders of Nettle and Neave JJA made on 17 April 2013 in appeal S APCI 2013 0048 restraining Fairfax Media Ltd and Mr Ben Butler from disclosing various matters in relation to a Deed of Release between Sunland Waterfront (BVI) Ltd and Sunland Group Ltd and Anthony Brearley be dissolved.

9 Reasons for judgment were published.[17]

10 In the present summons, Sunland sought orders that were subsequently refined in minutes submitted to the Court during argument. They stated:

OTHER MATTERS: Upon the appellants undertaking to:

1. prosecute their special leave application and any appeal, if leave is granted, with due diligence and to seek if possible to expedite the hearing of the special leave application and any appeal;
2. provide the usual undertaking as to damages in relation to the stay sought;

the Court makes the following orders.

THE COURT OF APPEAL ORDERS THAT:

1. Pursuant to rule 64.25 and/or the inherent jurisdiction of the Court:

(a) The respondents' solicitors shall continue to hold, in their respective interest bearing trust accounts, the Interim Joyce Sum and the Interim Prudentia Sum referred to in paragraphs 1 and 3 of the orders of the Honourable Associate Justice Wood of 7 June 2013, subject to order 1(c) below;

(b) Any further amount ordered to be paid by the appellants to the respondents in respect of Victorian Supreme Court proceedings S CI 2011 5977 and Victorian Court of Appeal proceedings S APCI 2012 0017, S APCI 2012 0117 shall be paid into the respective interest bearing trust accounts of the respondents' solicitors who shall continue to hold any such amount, subject to order 1(c) below; and

(c) Subject to any further order, the respondents' respective solicitors shall only distribute any of the Interim Joyce Sum, the Interim Prudentia Sum or any further amount identified in paragraph 1(b) above to their respective clients if the following occurs:

1. any application for special leave to appeal to the High Court of Australia by the Appellants against the orders made by the Court of Appeal in proceeding No S APCI 2012 0117 is dismissed; or
2. if the Appellants' application for special leave to appeal to the High Court of Australia in relation to proceeding no S APCI 0117 is successful, any appeal by the Appellants arising from such a grant of leave is dismissed.

1. The respondents pay the appellants' costs of and incidental to this application.

11 Sunland relied on affidavits of their lawyer, Mr Henderson. He deposed to the fact of the application for special leave in the High Court of Australia. He also deposed as to proceedings in Dubai relating to Messrs Joyce, Reed, Lee and Brearley. Mr Henderson further deposed as to the asset position of the respondents as known to Sunland. The matters outlined were relied upon by Sunland to support the contention that in the event their special leave application and ultimately their appeal succeeds in the High Court, the moneys presently subject to the stay order of Wood AsJ will be dissipated. As a consequence, Sunland would not be able to recover those moneys from the respondents. These matters were not challenged by the respondents.

12 There is a preliminary procedural question or at least a potential question which warrants clarification. The question arises as to the basis on which the orders of an associate judge which have not been the subject of an appeal come directly before the Court of Appeal. The jurisdiction and powers of the Court of Appeal are defined in s.10 of the Supreme Court Act 1986 (Vic). The type of circumstances presently before the Court do not readily seem to arise under this section.

13 In the course of the hearing before Wood AsJ, reference was made by the parties to the fact that matters arising from any order staying the order for costs by the judge would be considered by the Court of Appeal upon the delivery of judgment. Whilst that may be, it is necessary to clarify the basis on which the matter comes before the Court. On proper analysis, the orders made by Wood AsJ were an incident of the original orders of the trial judge which in turn were the subject of the appeal and the primary judgment of the Court.

14 Furthermore, the orders made by Wood AsJ were necessary to implement the orders of the trial judge that were the subject of the appeal. When these matters are considered, I am satisfied the matter is appropriately brought directly before the Court on the application for the stay by summons. If it was necessary, I would be satisfied that this is an appropriate matter in which to invoke the power under s.10(3) of the Supreme Court Act.

15 The jurisdiction to grant a stay is acknowledged as an extraordinary jurisdiction.[18] In Jennings Constructions Limited v Burgundy Royale Propriety Limited (No. 1), Brennan J stated the factors to be considered in the exercise of the jurisdiction:

(a) whether there is a substantial prospect that special leave to appeal will be granted;

(b) whether the applicant has failed to take whatever steps are necessary to seek a stay from the Court in which the matter is pending;

(c) whether the grant of the stay will cause loss to the respondent and;

(d) where the balance of convenience lies.[19]

16 These governing principles have been considered by a number of intermediate appellate courts on various occasions including the Victorian Court of Appeal.[20]

17 As a threshold issue, the question arises as to whether the lapse of the existing stay which will give rise to the payment of costs to the respondents' lawyers will have an effect and, if so, what effect. Furthermore, it is a question as to precisely what it is that will be rendered nugatory if the stay is not granted. Sunland does not suggest that the subject of the appeal itself will be rendered nugatory, rather, the argument is that their ability to recoup costs will be forever lost. In other words, it is asserted that the ability to recover costs will be rendered nugatory.

18 In most of the authorities, the test or approach has been to consider whether an order for a stay was necessary to preserve the subject matter of the litigation or to protect the appeal itself from being rendered futile.[21]

19 However, in Sali v SPC Ltd[22], Brennan J dismissed an application for a stay to preclude the prospect of a sequestration order being made following the taxation of costs of the proceeding below. His Honour refused the application on the basis that:

It seems to me that whether or not a stay is granted in respect of the enforcement of the costs order, that right of appeal does not stand in need of any preservation. Whether or not a stay order is made, the application for special leave can be considered and an appeal can be heard and determined. If a stay is refused, there will be no embarrassment in the making of any appropriate order if the applicant should succeed either on the application for special leave to appeal or on the appeal. It therefore appears to me that the application is not one which attracts the operation of the jurisdiction to grant a stay.[23]

20 Sunland relies on Territory Insurance Office v Costa.[24] However, in my view, the statement of principle in Sali is the approach to be followed. Furthermore, in my view, Territory Insurance Office is distinguishable from the present circumstances. In that case, there was no issue at trial or on appeal of an ulterior purpose on the part of the party seeking the stay. Further, the Northern Territory court concluded that there was an arguable case for the granting of special leave. For reasons I will turn to shortly, Sunland faces difficulty in that regard before us. In addition, in the Territory Insurance Office case, the court had the benefit of a summary of argument enabling it to form a view as to the prospects of the special leave application. We have not had the benefit of a summary of argument or a draft summary. [25]

21 The approach of the Victorian Court of Appeal is to view applications for a stay with considerable caution.[26]

22 Returning to the approach by Brennan J in Sali, it is my view that what lies at the heart of the application by Sunland, namely to preserve their position as to costs if successful on the special leave or indeed any ultimate appeal, creates difficulties on this application.

23 In order to satisfy the first criterion of demonstrating the substantial prospect that special leave to appeal will be granted, Sunland essentially relied upon an argument based on the administration of justice, namely, that evidence ought to have been considered by the Court of Appeal in its primary judgment and was not so considered. Counsel for Sunland took us to a number of aspects of the appeal judgment which, it was said, supported their submissions on appeal, in particular with respect to the admission of documents. The Court of Appeal concluded that the documents adverted to could not be relied upon by Sunland. On the stay application, Sunland outlined a contention that the failure to consider the documents constituted a breach of natural justice. It indicated it would further submit to the High Court that if the documents had not been rejected as irrelevant, then it would have led to a different result before the appellate court. On the appeal the Court had 17 folders of documents.

24 So far as the submissions went for Sunland, it was said that the documents, which relate to the distribution of part of the Hanley fee to Joyce and the issue of joint purpose, had in fact been discovered by the respondents and must therefore have been considered relevant by those respondents themselves.[27] It was also said that the documents were tendered into evidence without objection. These points culminated in a submission before us that Sunland will seek to argue on the special leave application that there has been a denial of natural justice and that this in turn invokes a special leave point.

25 None of these matters were covered in the High Court documents before us. We were not provided with any draft or summary documents, as I already observed - as occurred in the Northern Territory case. However, on this basis, it was submitted before us that the prospects of success on the administration of justice proposed ground was substantial or not insubstantial.

26 It was further argued before us that three general points arise. First, the Court of Appeal failed to address all the representations put forward by Sunland as constituting the misleading and deceptive conduct. Secondly, the Court of Appeal, having said it was necessary for Sunland to prove that they had a legally enforceable and transferable right, was in error. Sunland would say in the High Court that the Court of Appeal added burdens that they were not required to discharge in order to establish their case. Thirdly, we were informed that Sunland will argue the Court of Appeal failed to properly evaluate their claim by failing to consider the whole of the evidence. In particular Sunland relied on four categories of documents: internal documents relating to the respondents, forged documents, internal records of Sunland; and documents relating to the receipt of moneys by the respondent, Mr Joyce.

27 Counsel for Sunland acknowledged that the submissions as outlined constituted no more than a 'broad brush summary' of how the case may be put when the time comes in the High Court. Be that as it may, I am not satisfied that Sunland has made out an arguable ground of public importance for the purposes of the special leave application. In addition, no point of law or error of law has been identified. In summary, Sunland has based submissions before this Court in what appear to be a retraversing of the facts at trial and no more.

28 As the New South Wales Court of Appeal has observed, the court whose judgment is to be the subject of the special leave application to the High Court can exert its view of its judgment in certain circumstances with some confidence.[28]

29 In consideration of whether a special costs order should be made on the appeal, this Court made a number of pertinent observations:

1. This Court, in consideration of Sunland's pleadings at trial held that Sunland's pleaded case was that Reed or Prudentia represented that they had a legally enforceable right. The trial judge reached this conclusion. However his Honour also discussed the possibility of a lesser right and found against Sunland on this case too. We found it was not necessary for the trial judge to address this case. We concluded:

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'.

1. The problem with Sunland's pleading in this regard was identified by the trial judge and was not overcome on appeal. Even if Sunland succeeded in establishing that its pleading extended to a representation of a lesser right, the prospect of which in our view was highly unlikely, it would then need to establish that such a representation was false and that the representation of the lesser right was relied upon, the prospects of establishing which were also both highly unlikely.
2. This Court, like the trial judge, found that a representation that Reed or Prudentia had an enforceable right to acquire Plot D17 simply was not made and held that Sunland failed at the first hurdle.
3. The allegation of joint purpose, or 'scheme evidence' emerged three days before trial when Sunland sought to introduce an allegation of a secret commission, a criminal offence, in circumstances where the documents upon which the allegations were founded had been in the possession of Sunland for over twelve months. The trial judge refused the amendment 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.
4. We held:

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. 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.[29]

1. In our view, the submission that the trial judge should have considered this evidence was hopeless.
2. Indeed, Sunland failed to establish on appeal any of the essential elements necessary to prove its claim. The reasons for this were various but fundamentally Sunland could not make good a case based upon the inconsistent and inadequate evidence of its own witnesses. The trial judge's assessment of the evidence fell to be evaluated on appeal in circumstances where the trial judge had had the benefit of seeing those witnesses give evidence before him and the circumstantial evidence (including in particular matters such as prior inconsistent statements) did not in many respects support Sunland's case. In our view the proposition that the trial judge was bound to accept the critical evidence of those witnesses was hopeless.[30]

30 Further, we observed in the costs judgment that Sunland's appeal was 'essentially a reiteration of its case at trial'.[31] On the basis of the submissions, particularly the oral submissions on the present application, I could not be satisfied that Sunland's proposed grounds and arguments before the Court of Appeal will constitute more than a further reiteration. In addition, I observe that in the Court of Appeal, Sunland relied on 67 grounds of appeal with additional subgrounds challenging nearly all of the trial judge's findings. It is difficult to anticipate that Sunland would be permitted in the High Court to reventilate the matters that underlay the grounds of appeal.

31 For the reasons outlined, I would not be satisfied that there is a substantial prospect that special leave to appeal will be granted. Thus Sunland fail at the first hurdle recited in Jennings.

32 Next, there is the question whether appropriate steps have been taken. That of itself is answered by virtue of this application. Thirdly, there is the matter of whether the grant of the stay will cause loss to the respondents.

33 In my view, commonsense and experience dictate that, if a stay is granted, the respondents will be deprived of the fruits of winning the trial. They may need those costs to meet their costs of appeal and, for that matter, the High Court application. By virtue of various orders they have been deprived of access to costs awarded in their favour.

34 Here there are litigants who have defended a claim of some magnitude. The moneys held in trust by the lawyers pursuant to the stay orders are the fruits of the costs award made in their favour. It is obvious that the respondents suffer a disadvantage if they do not have the benefit of all the costs in all the circumstances, particularly bearing in mind that Sunland have not demonstrated that they have a substantial prospect with respect to the special leave application. It needs to be borne in mind that the respondents have been brought into these proceedings and forced to prosecute their defence. It is Sunland who now wish to continue to litigate the proceedings albeit in the face of the difficulties I have outlined.

35 With respect to the third criterion outlined in Jennings, it is plain, in my view, that the grant of the stay would cause loss to the respondents.

36 The remaining matter is the question of where the balance of convenience lies. Given the state of the proposed arguments and grounds by Sunland with respect to the special leave application, the entitlement of the respondents to not insubstantial sums with respect to their costs, the fact that the respondents have prosecuted their defences and, further, the outcome of taxation of costs and their general circumstances as litigants, in my view the balance falls in favour of the respondents. Furthermore, there is nothing that arises from the proposed special leave application which will inhibit or render nugatory Sunland's proposed appeal.

37 In these circumstances, I am not satisfied that the extraordinary jurisdiction of granting a stay should be exercised.

39 I agree with the order proposed by the Chief Justice, for the reasons her Honour has given.

40 I would only add that in my view this is not one of the rare cases[32] in which any potential loss to Sunland, or any balance of convenience considerations in its favour, are such powerful factors that the Court should, as urged by Sunland, pay little or less regard to the question of its substantial prospects of success.

41 In summary, I do not consider that, taken together, the factors put forward by Sunland amount to exceptional circumstances[33] so as to justify a stay.

[1] As no point is taken about any distinction between the appellants, Sunland Group Limited and its subsidiary Sunland Waterfront BVI Ltd, in these reasons, 'Sunland' is a reference to the relevant Sunland party or parties as appropriate.

[2] Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No 2) [2012] VSC 239.

[3] Sunland Waterfront (BVI) Ltd & Ors v Prudentia Investments Pty Ltd & Ors [2013] VSCA 237 ('Reasons'); Sunland Waterfront (BVI) Ltd & Ors v Prudentia Investments Pty Ltd & Ors [2013] VSCA 255.

[4] Reasons [236]-[238], [285]-[287].

[9] Reasons [127]-[157], [331]-[332].

[17] Sunland Waterfront (BVI) Ltd & Ors v Prudentia Investments Pty Ltd & Ors [2013] VSCA 265.

[18] Jennings Constructions Limited v Burgundy Royale Propriety Limited (No 1) ('Jennings') [1986] HCA 84; (1986) 161 CLR 681, 684.

[20] See Palmer v Permanent Custodians Ltd [2009] VSCA 164; Maher v Commonwealth Bank of Australia [2008] VSCA 122; Miller v Nationwide News Pty Ltd [2008] NSWCA 261.

[21] See e.g. Jennings Constructions Limited v Burgundy Royale Propriety Limited (No 1) [1986] HCA 84; (1986) 161 CLR 681 and Palmer v Permanent Custodians Ltd [2009] VSCA 164.

[22] (1993) 67 ALJR 515.

[24] [2002] NTCA 1.

[25] See Rinehart v Welker (2012) ('Rinehart') [2012] NSWCA 1; 285 ALR 191.

[26] See Palmer v Permanent Custodians Ltd [2009] VSCA 164.

[28] Sibuse Pty Ltd v Shaw (No 2) (1988) 13 NSWLR 125, 132.

[30] Sunland Waterfront (BVI) Ltd & Ors v Prudentia Investments Pty Ltd & Ors [2013] VSCA 265, [11]-[17] (citations omitted).