Developer put pressure on lawyer
Gold Coast developer Sunland threatened to sue a lawyer involved in a controversial Dubai property deal if he did not provide evidence the company could use in a related Australian lawsuit, documents obtained by BusinessDay show.
New emails and file notes seen by Fairfax Media show Sunland put intense pressure on Anthony Brearley, who is facing criminal charges in Dubai over the 2007 property deal, to quickly sign an affidavit containing evidence agreed to between him and the company.
Mr Brearley's resulting affidavit was tendered in an Australian lawsuit in which Sunland alleged it was hoodwinked into paying a $14 million fee by property executives Matthew Joyce and Angus Reed.
The case is being considered by the Victorian Court of Appeal after Sunland challenged a scathing Supreme Court judgment ruling against it and referring its behaviour to the corporate regulator for investigation.
In a file note from January 21, 2010, Mr Brearley recorded that Sunland's lawyer, Ben Coogan, told him he was "instructed to commence proceedings against me immediately if I did not sign" a deed of release by the end of the day.
However, in an earlier file note dated September 3, 2009, Mr Brearley recorded Mr Coogan telling him Sunland "had not made me a party to the proceedings and I will not be".
The Victorian Court of Appeal has injuncted Fairfax Media from revealing many aspects of a deed of release between Mr Brearley and Sunland dated January 27, 2010, and signed by Sunland chairman Soheil Abedian and then Middle East head David Brown.
As previously reported by Fairfax, the deed obliged Mr Brearley to give evidence in return for amendments to the statement of claim in the Australian case and an undertaking not to follow up any judgment obtained against Mr Brearley in Dubai.
The new documents seen by BusinessDay show that after the deed was signed, Sunland put pressure on Mr Brearley to swear the affidavit and resisted his efforts to change its contents. A file note made by Mr Brearley dated January 26, 2010, shows that Ron Eames, who was then a lawyer for Sunland but subsequently joined the company's board, told Mr Brearley he wanted to have the affidavit sworn before providing a copy of the signed deed.
"I said that this was not what the agreement was and that the affa [affidavit] would be signed once I received the signed deed of release," Mr Brearley said in his note.
"I also said typical of Sunland to reach agreement then try to change the deal." The documents show tense negotiations over the contents of the affidavit continued for a fortnight after the deed was signed.
"I have obtained instructions and, in the circumstances, our clients will not agree to an affidavit where there is any departure from the essential issues as set out in the deed of release," Mr Coogan told Mr Brearley in an email sent on February 7, 2010.
"Our clients expect that you will agree to and swear the affidavit where there is no departure from the essential issues by 5pm tomorrow. Failure by you to do so will be treated as a fundamental breach of the deed."
The documents obtained by BusinessDay show Mr Brearley was "very concerned" about the use of his affidavit in the penal proceedings in Dubai, where he is a defendant in a bribery case alongside Mr Joyce and Marcus Lee - who were executives with Dubai Waterfront, a subsidiary of state-owned developer Nakheel - and Mr Joyce's schoolfriend Mr Reed. Mr Brearley was the head of Dubai Waterfront's legal department.
Dubai authorities claim a $14 million fee Sunland paid to Mr Reed's company Prudentia Investments in return for it introducing the developer to a plot of land held by Dubai Waterfront was a bribe.
"I can only think that the case against me is a result of [Sunland executive] D[avid] Brown's incorrect statements made concerning me," Mr Brearley said in a January 15, 2010, email to Sunland's then solicitors, DLA Phillips Fox.
Mr Coogan and Mr Eames left the firm after the emails were sent and now work for rival law firm Thomsons.