Trapped: A Couple's Five Years of Hell in Dubai
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50. In the course of [his] conversation [with Jeff Austin], Brown did, however, understand that Plot D17 did not then exist and, consequently, DWF or Nakheel still owned the land in question. For the same reason, Brown knew that Reed (or Prudentia) had no legal right to Plot D17, which is probably why he did not ask Austin what ‘a hold’ meant. Nevertheless, it was clear to Brown from this meeting that Austin had already been talking to Reed about Plot D17 and that this meant that Prudentia was in a better commercial position than Sunland to acquire Plot D17. The negotiating position of Reed on behalf of Prudentia was important and of great value to Sunland. Consequently, Brown was keen to explore the purchase of Plot D17 in a joint venture with Reed on behalf of Prudentia.
54. . . . What is clear is that Joyce did not say that Reed had a ‘hold’ on Plot D17, that Reed ‘controlled’ Plot D17, that Reed had a ‘right’ to Plot D17 or that Reed had ‘reserve[ed]’ Plot D17.
62. . . . Brown confirmed in cross examination that as at 15 August 2007 he was aware that there was no signed SPA [sale and purchase agreement] for Plot D17.
69. It was quite clear from Brown’s evidence that he knew that neither Prudentia nor Reed owned Plot D17 . . .
72. In spite of Brown’s evidence, Abedian maintained his claim that a hard copy of [a particular email from Matt Joyce] 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 . . .
80. . . . one would have to conclude that the evidence of Abedian in this respect is that of a person concerned only to advance his interests, and those of Sunland, as he perceived them to be.
138. . . . 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’ . . . 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 . . .
181. 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 . . . Brown knew from his conversation with [Marcus] Lee and [Anthony] Brearley on 12 September 2007 that the price of Plot D17 would be AED 120 per square foot.
196. Further, as noted previously there is no entry in Brown’s notebook of any meeting with Lee on 17 September 2007, being the date on which Brown sent his draft compensation letter to Lee. On the basis of the evidence, it appears that Brown invented an entry for a meeting with Lee when he prepared the typed ‘Plot D17, Diary Notes’ that he supplied to the Dubai authorities. When making that typed entry, Brown listed the date of the meeting as 18 September 2007: that is, after his draft compensation letter to Lee. Brown’s evidence in cross-examination was that the 18 September 2007 date was an error. On its own, one might be prepared to accept the error explanation, but having regard to other matters which go to throw considerable doubt on the reliability of Brown and Abedian as witnesses, I think it is more probable that the typed notes of a meeting on 18 September 2007 were a fabrication and that omitting to provide the Dubai authorities with Brown’s email in relation to the ‘compensation’ was deliberate. This is particularly so having regard to the pressure Brown was then under personally in explaining the Plot D17 transaction to the Dubai authorities in a way that convinced them that it was lawful, together with the commercial consequences for Sunland were they to find otherwise.
299. 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 . . . 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 . . .
304. Even taking the evidence of Brown and Abedian at face value, so to speak, and without considering issues which, in my view, raise serious questions in relation to the veracity of that evidence — particularly arising from the investigation of bribery allegations by the Dubai authorities — I am of the opinion, as already indicated, that the Sunland case fails against Reed and the Prudentia parties, and also against Joyce . . .
307. Brown’s unreliability as a witness is, in my view, indicated by the evidence he gave in relation to a number of key issues . . .
317. I accept the submissions against Sunland that Brown’s evidence in relation to the bribery allegations indicates, very clearly, that Brown cannot be taken as a reliable witness of truth. More particularly, it establishes that, on his own reluctant admission, Brown was being investigated for bribery, he was clearly horrified at the possible consequences of such an investigation. This explains instances, discussed previously, where, in his evidence, he sought to deny a clear and obvious meaning of documents which do not support Sunland’s version of events with respect to the Plot D17 transaction . . .
321. References have already been made to the detailed discussion of the D17 transaction from the perspective of considering whether there were any misrepresentations as alleged by Sunland or, assuming that there were, whether there was any reliance on such misrepresentation on its part. It is clear from the consideration of these matters and the references to Abedian’s evidence that he was a consistently uncooperative witness and clearly prepared to give evidence in a manner which he saw as being advantageous to Sunland’s commercial interests in Dubai. In short, Abedian presented as an unreliable witness and, as indicated previously and as explored further in relation to some corporate governance issues which arise with Sunland, could not be regarded as a reliable witness of truth . . .
332. . . . In my view, it is clear from Abedian’s evidence that he was determined to deny that Brown or Sunland was being investigated for bribery in Dubai. This, in my view, [is] made very clear when, what are conveniently termed, the corporate governance issues for Sunland are considered . . .
447. . . . Sunland’s case fails in all respects and will be dismissed.
448. Additionally, I will forward a copy of these reasons (and make any papers available) to the Australian Securities and Investments Commission with a request that the Commission consider the corporate governance issues for Sunland (including its ASX announcements) which are raised by these proceedings and take such further action as considered appropriate.
Despite the comprehensive and unambiguous findings against them, Sunland appealed the case.
/> You can read the findings of the three-judge panel from the Supreme Court of Victoria’s Court of Appeal here: http://www.austlii.edu.au/au/cases/vic/VSCA/2013/237.html
The appeal, formally identified as Sunland Waterfront (BVI) Ltd & Anor v Prudentia Investments Pty Ltd & Ors [2013] VSCA 237 (6 September 2013), was made on a number of grounds.
To quote from the appeal judgement:
373. A great many appeal grounds were directed at the trial judge’s adverse credit findings concerning Brown and Abedian.
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 . . .
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 represent, at least, solid starting points for a reasonably formed adverse impression of the credit of each witness . . .
389. . . . we reject Sunland’s contentions that the trial judge erred in making adverse findings concerning the credit of Brown and Abedian . . .
All the other grounds for appeal were also rejected: Sunland lost comprehensively for a second time.
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Copyright © Marcus and Julie Lee 2014
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National Library of Australia Cataloguing-in-Publication data:
Lee, Marcus, author.
Trapped / Marcus and Julie Lee, with Hazel Flynn.
978 0 7333 3380 4 (paperback)
978 1 4607 0383 0 (ebook)
EPub Edition August 2014 ISBN 9781460703830
Lee, Marcus.
Fraud investigation—United Arab Emirates.
Corruption—United Arab Emirates.
Commercial crimes—United Arab Emirates.
Real estate development—United Arab Emirates.
Other Authors/Contributors: Lee, Julie, author.
Flynn, Hazel, author.
363.25963
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* I didn’t say it in the email, but the ‘someone’ was Ange.