Sunland and Sunshine State shenanigans

Allegations of witness tampering and falsified evidence in the Sunland case ... Matthew Joyce caught in the desert of Dubai ... Sunland v Prudentia ... Devastating judgment from Vic Supremo ... What next? ... Surely the stipes should probe ... Sir Terence O'Rort on the warpath 

What it's all about: the Dubai Waterfront, featuring The Palm Islands

LOCAL punters in both Brisneyland and Yarraside have been following the soap opera otherwise known as Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd.

For those who are not aware of the main players in this saga the dispute involved an unregistered block of land, Plot D17, situated in Dubai in the United Arab Emirates - part of a development known as the Dubai Waterfront.

The Dubai government incorporated a development vehicle Dubai Waterfront LLC (DWF) that was responsible for the sale of lots in the scheme and infrastructure installation.

Matthew Joyce was the managing director of DWF, Marcus Lee the director of commercial operations and Anthony Brearley the senior legal counsel. 

Apart from the Dubai Waterfront the Dubai government has been involved in creating other well-known developments such as The Palm Islands and The World. 

Sunland Waterfront (BVI) Ltd (SWB) was a company incorporated in the British Virgin Isles - wholly owned by the Australian ASX listed Sunland Group Ltd whose chairman was Soheil Abedian. 

SWB entered into an agreement with Prudentia by which Prudentia agreed to transfer its right to negotiate and enter into a plot sale and purchase agreement with DWF for Plot D17 in consideration for the payment of AED 44,105,780 (AUD$13,000,000) to Prudentia.

Subsequently SWB signed a contract with DWF to purchase Plot D17.

The Sunland parties alleged that SWB was induced to enter into the agreements because of misrepresentations made by Matthew Joyce, among others.

The essence of the Sunland case was that Joyce and others had represented that Prudentia had some legal interest in Plot D17. 

Joyce: doing time in Dubai

However, Justice Clyde Croft of the Vic Supremes found that Sunland's own evidence demonstrated that the Sunland parties knew that Plot D17 was an un-subdivided plot and that the price per square foot for the acquisition of the land had not yet been determined such that the representations alleged were never made.

Subsequently Joyce and others were charged criminally by the Dubai authorities in relation to the transaction and Joyce was thrown into prison.

These proceedings are the subject of no less than 14 separate judgments by Justice John Logan in the Federal Court in Brisbane, where the proceedings were commenced, and three judgments in the Victorian Supreme Court.

After the proceedings were transferred to the Supreme Court of Victoria, Justice Croft disposed of Sunland's claims in a very decisive manner and then slotted Sunland for indemnity costs. 

Sunland has appealed Croft's decision, but VicAppeals has not yet delivered judgment. 

The solicitors acting for Sunland were the Brisneyland office of DLA Phillips Fox (now DLA Piper) and subsequently the local office of Thomsons Lawyers.

One of the partners of both firms was Ron Eames, who remains a partner with Thomsons Lawyers.

Eames was also a director of Sunland and chairman of its audit committee at the time of the events giving rise to the action. 

The Brisbane partners of Thomsons Lawyers were each formerly either partners or employees of DLA Piper, but departed DLA to start Thomsons Lawyers when the global merger of DLA Piper took place.

Ben Coogan ran the trial in the Victorian Supreme Court and the proceedings in the Federal Court in Brisbane.

Coogan's biographical entry on the Thomsons' website advises that he practices in commercial litigation and advises and litigates competition and consumer law matters. 

Doyle's Guide 2010 recognised Coogan as a "Rising Star".

Certainly these star qualities were on display in the Victorian proceedings in which Sunland's case was so powerful that the defendants did not even call any witnesses, rather making a no case submission which was upheld by Croft J, a situation almost unheard of in s.52 cases.

Other highlights of Sunland's case, according to Croft, included:  

• Sunland had failed to prove the making of the pleaded representations;
• Even if Sunland had proved the making of the pleaded representations, it had not proved that they were false or misleading;
• Even if Sunland had proved the making of the pleaded representations and that they were misleading or false, it had failed to prove that it had relied upon them;
• Sunland had failed to prove that it had suffered any loss and damage. 

Half-time score: Sunland 0, Defendants 4. 

Worse was to come for Sunland as Croft methodically took apart its case - finding that the proceedings had been commenced for an ulterior purpose and maintained in wilful disregard of known facts and clearly established law. 

Having found that the statements of the witness Brown and Abedian were inconsistent with their oral evidence Croft J commented:

"39. Additionally, against this background, in assessing Sunland's position it does not, in my view, lie in the mouth of Sunland to say that its legal advisers were entitled to take the principal Sunland written evidence, that is the evidence of Brown and Abedian, at face value in the framing and conduct of its case.

Even if these witnesses were strangers to Sunland, one would expect that in the course of preparing its case and their evidence, that they would have been subject to rigorous questioning and examination in conference so that any deficiencies and inconsistencies could be substantially discovered at this stage so that Sunland could consider how best to pursue its case, if at all.

There is no evidence before the court, perhaps unsurprisingly having regard to legal professional privilege, in relation to this process and the advice which Sunland's legal advisers gave to it in relation to these matters.

In my view, this highlights the importance of the point raised by the defendants, namely that the critical question in relation to Sunland's costs liability is its belief, not the belief of its legal advisers ..." 

Croft J ordered Sunland to pay indemnity costs of the entire proceedings in both the Federal Court and the Victorian Supreme Court (except where costs orders had already been made).

See Justice Croft's reasons in full

Full-time score: Sunland 0, Defendants 6.

Needless to say, Sunland has appealed both decisions and we currently await the decision of the Victorian Court of Appeal. 

*   *   *

Pallas MP: tabled deed drawn by DLA Phillips Fox

THERE has been a sequel in the Victorian Parliament where the Victorian shadow treasurer, Tim Pallas accused Sunland of witness tampering. 

Pallas tabled a deed of release drawn by DLA Phillips Fox and it was certified by Coogan as true and correct. Coogan was also named as the contact for Sunland.

Pallas said:

"I regret to inform the house that shocking new evidence has arisen of witness tampering that seems to have been specifically designed to damage the interests of Mr Joyce ... I have here a deed that unequivocally demonstrates the lengths to which Mr Joyce's accusers have gone to falsify the evidence against him, both in Dubai and in Australia. I seek leave to incorporate the deed into Hansard." 

The deed is a fascinating document made between Sunland and Anthony Brearley, who according to Croft J could have given critical evidence to prove the falsity of the representations pleaded by Sunland, but was not called to give evidence at the trial.

The reason for Brearley's absence becomes clear when the terms of the deed are examined.

The deed commences with a homage to those great 1960s American court-room dramas by reciting that: 

"Sunland's objective in entering into this deed is to obtain both now and in the future, for the benefit of the Federal Court Proceedings, evidence from Brearley that is the truth, the whole truth, and nothing but the truth."

What was wrong with the traditional step of taking a witness statement from Brearley?

The deed shows that in exchange for a release Brearley will give evidence of the "essential issues", however when it is examined it is clear that "essential issues" are defined as a version of evidence drafted by Sunland.

Moreover, the releases provided to Brearley are contingent upon him giving evidence in accordance with the "essential issues". 

Sunland also promises that it would amend its pleading so that Brearley is not referred to as being involved in the meeting pleaded therein.

Sunland did not join Brearley to the Australian proceedings.

Sunland obtained an ex parte injunction from the Victorian Supreme Court restraining publication. However, the next day the court discharged the injunction, which prompted Sunland to appeal that decision to the Court of Appeal and seek further non-publication orders.

Rule 24.1 of the Australian Solicitors Conduct Rules 2012 provides that a solicitor must not coach a witness by advising what answers a witness should give to questions that might be asked.

Surely the sentries at the Legal Service Commissioner's office should probe to see if Tim Pallas' allegations in relation to the deed are correct. 

Sir Terence O'Rort reporting