Clive Eggins & 2 Ors v Allan Robinson

Clive Eggins & 2 Ors v Allan Robinson - [2000] NSWCA 61 - NSWCA 2000 case summary — Zoe

[11]

1 MEAGHER JA: This is an appeal from Moore DCJ who gave a judgment in favour of the plaintiff (the present respondent, Allan Robinson) against the three appellants, who are the executors of the will of the late Mervyn Rupert Ellis, who died on 26 April 1994. The plaintiff, Mr Robinson, sought (and obtained) judgment against the appellants in the sum of about $150,000.00 The circumstances out of which the contract on which Mr Robinson sued were distinctly unusual. 2 Mr Ellis was a farmer and grazier from the Grafton area. He was rich: when he died in 1994 his estate was sworn to be worth nearly $3,000,000.00. In 1989, when the relevant matters in the case commence, he was in his early eighties. His wife was dead. He had one legitimate child, Mrs Fujikake, and three illegitimate children. He did not see Mrs Fujikake for 10 years before he died, and then had a death-bed reconciliation with her. He owned a number of properties. One of them was called (inter alia) "Lavidia", Ulmarra, and it had about 500 cattle grazing thereon. 3 The plaintiff, respondent, Mr Robinson, was a younger man, feckless, a drifter, possessing no qualifications for anything, generally uneducated. He had no rural skills. He had never married. He was also a gaol bird. Between 1969 and 1988 he was convicted seven times- and all of them offences involving dishonesty. 4 On 30 October 1969 he was fined $80.00 for goods in custody; on 21 July 1970 he was fined $40.00 on each of two charges of stealing cheques; in November the same year he was convicted and given a suspended sentence of 12 months hard labour for stealing a motor car radio; and on 2 June 1989 he was convicted on 4 charges involving the theft of two motor cars: in respect of each of the two cars he was convicted of possessing the vehicle with intent presumably to deprive the owner of its use and of false pretences; in respect of the former charges he was officially placed on a two year probation, a sentence which on appeal was increased to two years' imprisonment. 5 It is against this background that the plaintiff alleged that the deceased entered into what would seem a most unlikely contract. The plaintiff, had met Mr Ellis in 1978, but did not see him again until 1989. He sought out Mr Ellis to see if he could find somewhere to live. Mr Ellis agreed to let him rent a house on "Lavadia" for $50.00 per week. He moved in and lived there. He paid the rent. He did nothing else except effect a few repairs and do some painting. The plaintiff said Mr Ellis often came over from his property for a meal or a casual cup of tea. About six months after the plaintiff moved in, on one of Mr Ellis's visitations, according to the plaintiff there took place one of the two critical conversations with which this case is concerned. In the plaintiff's words, "he asked me if I would be interested in doing a bit of work around the place, and all this sort of thing, and he'd look after me, I wouldn't have to pay rent or power bills, and he'd look after me and I said 'Yes that'd be fine'." There was no particuarlization of what the "looking after" would amount to. The plaintiff accepted the proposal. Thereafter he ceased paying rent. He would, he said, inspect the property on most days, repair fences, check that no cattle had strayed or gates become broken. Over the months, he and Mr Ellis became "pretty good friends". Then, late in 1992, again on the plaintiff's version. Mr Ellis said to him "I have not paid you anything for what you have been doing for a long time. I am going to give you a couple hundred head of them" (at that time there were roughly 500 cattle on Lavadia) "for what you're done for me, cause I appreciate the work you've done for me, cause you'll be with me for a long time, I hope." The plaintiff said, presumably with some enthusiasm, "Definitely". 6 One will notice that there was no appropriation of any 200 cattle out of the 500-odd on the property, to any contract; nor was there any discussion at that conversation about when and how to sell the 200, on any of them, although these matters were discussed at a later stage. To make matters worse, there was the most confused evidence as to the time when the plaintiff was in residence at "Lavidia", an important sub-issue for deciding the date of the conversation. 7 Nonetheless, if the plaintiff were believed, then there was an undoubted contract between him and Mr Ellis. Since the contract alleged was oral, and no person present except the plaintiff and Mr Ellis, and since this inevitably involved making a claim against an estate, great caution had to be exercised in making an affirmative finding about the claim, as his Honour recognised. There was some slight oral corroborative evidence of the contract. Thus, a Mr Earl, (who had the extraordinary distinction of being indirectly related to the plaintiff, because he was "a cousin of his first wife by her first marriage"), said he vaguely remembered Mr Ellis saying " I have just given Allen 200 head of these cattle". He was not disbelieved. 8 But by far the most important item of corroboration relied on by the plaintiff in support of his alleged contract was a letter which Mr Ellis wrote to him in gaol. It was in the following form: Dear Alan,

[17]

9 The appellant's took issue with the plaintiff on the genuiness of this letter. In fact the parties devoted over 5 of the 11 days the case was heard to debate this question. His Honour approached the question with a full realisation that the heaviness of the onus of a plaintiff suing a deceased estate was equally matched by the heaviness of the onus of a defendant alleging forgery. 10 The defendants' handwriting expert was a Mr Westwood, the plaintiff's a Dr Walton. The defendants made a vigorous attack on the qualifications of Dr Walton, whose original training was in microbiology, but who had branched out into any field which called for skill in microscopy. His Honour considered her sufficiently qualified, and I can see no error in his Honour's exercise of his discretion in this regard. 11 As a matter of textual analysis, his Honour declined to uphold the charge of forgery. Indeed, an examination of the documents in question would demonstrate that many of Mr Westwood's arguments could not be sustained and many of Dr Walton's criticisms of him were well merited. 12 But there where other disturbing facts apart from textual analysis. For example, the sentence "I'll take my boat and outboard motor down when you're back and we will go out and catch a snapper or two for ourselves, a breath of sea air wouldn't do either of us any harm" poses some real problems. Mr Ellis at that time did not have a boat in his possession, although he once had one which at the time of the letter was agisted with a friend on an apparently permanent basis; there was no evidence he had ever possessed an outboard motor; the condition of Mr Ellis's heart made him too frightened to go to sea; and one can ,it would seem, not catch snapper in the Clarence River, but only at sea. The explanation of these riddles led to much speculation. 13 Nonetheless, at the end of the day, his Honour was unconvinced by the appellant's accusations about the letter. That, presumably, involves the consequence, from which he did not shrink, of accepting the authenticity of the letter. And that, combined with his favourable findings on the plaintiffs demeanour, led to the inevitable conclusion that the plaintiff won the case. In my view, no successful attack has been made on this conclusion. 14 I agree with what Sheller JA has to say about costs. 15 The appeal should be dismissed with costs.

[18]

The facts of this case are unusual. The decision of the District Court, from which this appeal is brought, is, on its face, surprising. 17 In 1989 the respondent, Allan Robinson, was looking for a house to live in. He approached a gentleman known as Peter Ellis, whom he had met once before in 1978. Mr Ellis's true name was Mervyn Rupert Ellis and he was born on 22 February 1912. Mr Ellis was a grazier and a widower. He owned properties in the Grafton area. On one sometimes called "Lavidia", or "Lavadia, he grazed cattle. He agreed to let the respondent live in a house on this property for a rent of $50 per week. The respondent moved in and carried out some repairs and painting. From time to time Mr Ellis visited the respondent for meals or a cup of tea. Five or six months after the respondent had moved in, according to him, Mr Ellis asked him if he would be interested in doing a bit of work around the place and said that if so, the respondent would not have to pay rent or power bills and he would look after him. The respondent said that that was fine. 18 The respondent claimed that this meant that if he did some work, unspecified, on the property, he would not have to pay rent or power bills and Mr Ellis would remunerate him for his work in an amount again unspecified. 19 After that, the respondent said that he did some work mending fences and checking that the cattle had not got out and that the gates were not broken. On most days he would drive out and inspect the property. There is, perhaps, nothing unusual about such an arrangement. Mr Ellis continued to visit the property about once a week. He and the respondent would drive over the property and have general conversations which could last for two or three hours. They became good friends. 20 The respondent did not know much about cattle and Mr Ellis offered to teach him "a bit". But nothing came of this. Sometime later, perhaps in 1992, Mr Ellis and the respondent had a conversation while they were driving on the property. According to the respondent, Mr Ellis said to the respondent that he had not paid him anything for doing what he had been doing for a long time. Mr Ellis then said: "I'm going to give you a couple a hundred head of them [meaning 200 of the 500 cattle on the property] for what you've done for me, cause I appreciate the work you've done for me, cause you'll be with me for a long time I hope."

[29]

By this his Honour must have meant that the respondent had not seen Mr Ellis's writing before the respondent received the letter of 11 July 1993. In argument of the appeal, the appellants referred us to a letter dated 27 July 1994 from the respondent's solicitors in which they wrote that while the respondent was away in Queensland, that is when the respondent was in gaol, "the Deceased kept in contact with our client by letter, one of which was the letter dated the 11th July." The terms of this part of the solicitors' letter were not put to the respondent in cross-examination and he was given no opportunity at the trial either in evidence or argument to explain any discrepancy. The solicitor who wrote the letter was in court but did not give evidence. I do not think the appellants can now for the first time rely on what the respondent's solicitors wrote about his correspondence with Mr Ellis. 38 The trial Judge dealt in some detail with the competing expert opinions. He noted the well recognised practical impossibility of making a convincing forgery of a large amount of good quality cursive handwriting; see Suspect Documents by Wilson R Harrison at 424. His Honour also noted what he described as an "extremely significant deficiency in the specimens of handwriting of Mr Ellis produced to the experts which, with one exception, were all old, in some cases more than twenty years old. The trial Judge dealt with various statements in the letter itself which the appellants submitted tended to show its falsity. His Honour said: "(a) It refers to 'much needed rain which we are getting at the moment, which is very much needed for crops'. Mr Ellis did not have any crops. However, I have already dealt with this when dealing with the plaintiff's evidence. The plaintiff himself volunteered that he was surprised at that reference, as he knew that Mr Ellis did not have any crops. A clever forger, or a clever employer of a forger, might see that such a reference was included in such a letter for the very purpose of showing his frankness in saying he did not understand it. And yet again, it could be said that Mr Ellis would not necessarily need to have to have crops himself, to say that the rain was very much needed for crops. It is an everyday feature of commentary on weather for persons who are even unconnected with the land to make such comments. (b) In the letter Mr Ellis says, 'I will take my boat and outboard motor down and we will go out and catch a schnapper or two for ourselves'. I have already dealt with this earlier in dealing with the plaintiff's evidence. Mr Ellis did not have a seaworthy boat at his property. He did have an aluminium boat which he had given to a friend, Mr Taylor, and invited Mr Taylor to register it in Mr Taylor's name. However, he still had access to the boat. Mr Ellis had not been out fishing for many years, because of his fear of being out of range of immediate treatment, with his heart condition. It is not entirely out of contemplation that he might have made the statement in the letter with the intention of breaking with his previous habit. However, that is one example of the reticence that must be applied in surmising about what Mr Ellis might or might not have done, where he is unavailable to give evidence. (c) The disputed letter contains spelling and grammatical errors - 'your' instead of 'you're', 'wouldn't' is spelt in the letter without an apostrophe and 'here' is used instead of 'hear'. The defendant's submission is that these faults do not appear in the specimen documents. In fact, as Mr Westwood says (Exhibit 9) 'hear' appears in the specimens twice, correctly spelt, the expression 'you are' is not abbreviated in the specimens, and he makes no comment on the missing apostrophe. It would be necessary for a much more extensive and up to date analysis to be made for this submission to be of real weight. (d) 'Yours faithfully', the closing expression of the disputed letter is not used in the specimen documents. The specimen documents are written to persons with a different relationship to Mr Ellis. Mr Ellis was not a regular letter writer. If the letter is genuine, he was writing it formally to a person in prison. (e) The first sentence of the disputed letter it is submitted, is a convoluted expression, which finds no parallel in the specimen documents. Again, one would need a more extensive volume of specimens for this submission to have real weight. The submission is in the nature of linguistics, which was a matter expressly not dealt with in the hearing. (f) The disputed letter contains 'P.S.' but no specimen letter contains a 'P.S.'. Once again a more extensive and more up to date body of specimens would be needed to substantiate this submission."

[36]

The appellants urged that the respondent's convictions for obtaining property by false pretences bore a close resemblance to the nature of the claim the respondent made in these proceedings and raised serious doubts about whether his evidence should be believed. 47 Thirdly, the appellants claimed that the trial Judge had put the question of whether the letter was forged into "an hermetically sealed compartment". He decided which expert witness he preferred and paid no attention to other evidence about the probability of the transaction which the letter purported to evidence. 48 The trial Judge set out various submissions made by the appellants' counsel at the trial in criticism of the respondent's evidence and dealt with them as follows: "(a) if, as asserted by the defendants, the plaintiff did not reside upon the property until 1991, then it is most unlikely that the deceased would have given him 200 cattle in late 1991 as recompense for less than 2 years caretaking work. In reply to this, it could be said that it is the experience of the Courts, which is only one viewpoint of the experience of mankind, that as people become older they often bestow generosity upon individuals both unexpectedly and where this might be objectively hard to understand. That could be the case even if the defendants' submission is correct. The same observation applies to the following submissions (b) to (e) by Ms Murell [sic] [Ms Murrell SC appeared at the trial for the appellants]. (b) The plaintiff conceded that, to the knowledge of Mr Ellis, the plaintiff did not know much about cattle. Why, it is submitted, would Mr Ellis pay, at all, the plaintiff for caretaking. (c) The value of the 200 head of cattle is well in excess of the bequests in Mr Ellis's will to his longtime friends and offspring. (d) The value of the gift was completely out of keeping with other evidence that Mr Ellis was anything but a generous man. In her adult life, he gave to his daughter Mrs Fujikake only $2000.00. (e) The value of the 200 cattle is much more than the total cattle sales for the years ended June 1993 and April 1994. (f) The plaintiff says that Mr Ellis 'was teaching me about botfly before I went to gaol… and… when I went to gaol… I didn't get the chance.' Mr Eggins [sic] evidence was that botfly was a disease which affected horses rather than cattle and that he assisted Mr Ellis by spraying for buffalo fly. This topic has too many imponderables to be persuasive. The plaintiff said that Mr Ellis had got other friends and associates to do the spraying for botfly. If it was done on a day when Mr Ellis had brought other people over to do it the plaintiff never got involved with them. The plaintiff said that he offered his services but Mr Ellis, in effect, politely declined. (g) The plaintiff was unable to draw Mr Ellis's earmark or to identify his brand mark … After this length of time, lapse of memory may well explain this deficiency in the plaintiff a self confessed novice. (h) The plaintiff referred to the property where he lived as 'Lavadia'. Other witnesses referred to it by various names (the Ulmarra Property, the swamp, Fernances and Tancred). They said that Mr Ellis did not refer to the property as Lavadia. Lavadia was a name, which was used by older people in the Ulmarra district. The plaintiff said that Mr Ellis told him it was called Lavadia. The plaintiff was not sure how it was spelt, having only heard it by word of mouth. The plaintiff said he asked Mr Ellis the name of the property 'because a lot of people have got a name for it.' He says that, after telling him it was called Lavadia Mr Ellis did not use the word 'Lavadia' but referred to that property as 'my place' or 'your place', depending on the sense in the expression he was using. One of the documents submitted for expert opinion, said to be in Mr Ellis's handwriting, was a 'Radio Japan Diary 1980'. ….. On the page headed 'May 16 Fri' there is an entry, apparently in Mr Ellis's handwriting, about transporting cattle. The writing commences with 'Lavadia'. (i) In 4 February 1994 Mr Ellis made his last will. The will does not mention the 200 head of cattle for the plaintiff. It may well have been that the plaintiff [sic Mr Ellis] did not regard this as a matter to go into his will, or that he expected the arrangement to be fulfilled before his will operated."

[39]

The appellants submitted that Dr Walton had neither the training, study or experience to enable the Court to find that she had the specialised knowledge contemplated by s79. 54 Although no formal voir dire was recorded, Dr Walton was questioned both in chief and then in cross-examination about her qualifications at the beginning of her oral evidence. Dr Walton's formal academic training was in biology, chemistry and experimental pathology resulting in a PhD. She had extensive experience in microscopy. She said that since 1990, the examination of documents in dispute had been the principal activity of a company founded by her in 1989. Most examinations of documents had been in connection with litigation. By the time she gave evidence she had examined thousands of documents in the course of carrying out more than two hundred examinations. Her evidence had been accepted in contested proceedings for more than four years. At the conclusion of the informal voir dire, the trial Judge said that he was of the preliminary view that he should admit Dr Walton's evidence "as a question of evidence" but that he was open to any submissions as to its weight and also on the question of its admissibility altogether. He said: "There's been enough established so far for me to admit it as being proper expert evidence." In substance, her reports were admitted and her oral evidence continued over five days. 55 The appellants made no direct attack on the quality of Dr Walton's evidence. From this I would assume that neither Mr Westwood nor the appellants' legal advisers were able to find in her evidence anything to suggest that she was incompetent to give it. The question of whether Dr Walton had specialised knowledge and gave an opinion that was wholly or substantially based on that knowledge within the meaning of s79 of the Evidence Act, was a matter for the trial Judge to determine as a question of fact; Clark v Ryan (1960) 103 CLR 486 at 503. His Honour heard Dr Walton give evidence in the witness box under attack by cross-examination and clearly came to the conclusion not only that she was appropriately qualified but that her evidence should be preferred to that of Mr Westwood. With due respect, no basis at all has been shown for this Court to reject his Honour's conclusion or come to any other conclusion. Mr Whittle referred to what Sir George Jessel MR said in Abinger v Ashton (1873) LR 17Eq 358 at 373-4 about experts' being the paid agents of the person who employs them. To the extent to which this criticism could be made of Dr Walton, it could also be made of Mr Westwood. I do not regard it as fairly made of either expert. The trial Judge did not think so. The parties called expert evidence and asked the trial Judge to consider it. I do not think the appellants can be heard to say that he was not entitled to act on it. In my opinion, the trial Judge's analysis and reasoning on this aspect of the case were compelling. 56 Other submissions put about the authenticity of the letter arose from its text. These matters are set out in the passage from the submission which I have referred to above. The letter contained the following passage: "Ill [sic] take my boat and outboard motor down when your [sic] back and we will go out and catch a schnapper [sic] or two for ourselves, a breath of sea air wouldnt [sic] do either of us any harm. Good to here [sic] from you Alan [sic] and hope to see you soon."

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57 The point was taken that by July 1993, Mr Ellis had not been out fishing for many years because of his fear that with a heart condition he would be out of range of immediate treatment. Although he had an aluminium boat, he had given it to a friend. The appellants relied on the spelling mistakes, including that of the respondent's first name, and the lack of apostrophes in the passage I have quoted. Earlier the letter referred to rain being very much needed "for water supplies and crops". It was submitted that Mr Ellis ran cattle and did not grow crops. The letter concluded "yours faithfully", a form not found in any of the specimen documents and set out Mr Ellis's name at the end in an unusual way. The trial Judge took account of all these matters together with the expert evidence when he said he thought it more likely that the letter was genuine than not. Accepting his Honour's conclusions about the expert evidence, which in my opinion we must, I do not regard the various features of the letter to which the appellants drew attention, or the evidence as a whole, as enabling us to conclude that the letter was a forgery with, to adopt the words of Dixon J in Briginshaw v Briginshaw at 362, "the gravity of the consequences flowing from [that] finding". 58 The appellants stressed that all the matters of suspicion about the letter should be looked at together rather than separately and criticised the trial Judge for doing otherwise; see Chamberlain v The Queen [No 2] (1984) 153 CLR 521 at 535. But the parties invited his Honour to give attention to expert evidence. His Honour did not pass this by, by saying no more than he preferred the evidence of Dr Walton to that of Mr Westwood. He carefully made what on their face were trenchant criticisms of Mr Westwood's opinion. The appellants made no real attempt to challenge those criticisms or to suggest any particular criticisms of Dr Walton's evidence, beyond saying in a general sense that his Honour had no regard to very telling points which counsel made in cross-examination of Dr Walton. The points relied on, however, went to her qualifications and not to the substance of her evidence. 59 As I have already indicated, the appellants' defence was based, in large measure, upon the letter being a forgery and they failed to establish that it was. This is the context in which the other grounds of appeal must be examined. The appellants urge that the respondent's story was an improbable one. The appellants submitted that the value of the gift of cattle so exceeded the value of the work the respondent did that it was improbable that Mr Ellis would have given the cattle as a remuneration for the work. Looked at now and handicapped by the inevitably slight knowledge that any court will have of what really happened and why it happened, the appellants may be right. But why then does Mr Ellis write in terms which suggest that he had given the 200 head of cattle to the respondent? The appellants of course say that this is one factor pointing in the direction of forgery which must be taken into account together with all the other curiosities of the case. I have already dealt with this. 60 The respondent had prior convictions for offences of dishonesty. The appellants relied on Bugg v Day. The trial Judge referred to that decision and to Bickle v John Fairfax & Sons Ltd (1981) 2 NSWLR 474 at 494 and R v Aldridge (1990) 20 NSWLR 737 at 740. He also referred to ss 55, 102 and 103 of the Evidence Act and said that: "Relevance is the essential criterion of both admissibility and use of evidence. In the present case I feel that the evidence of the plaintiff's criminal record should only be considered in so far as to show whether the plaintiff ought not be believed on his oath. In the resolution of that question, it has limited value."

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61 The appellants submitted that the offences were serious and had involved substantial dishonesty. Therefore it was submitted that his Honour was wrong to say that on the question of credit the respondent's criminal record had limited value. The appellants said this was a misdirection and that his Honour was "palpably misusing his position". His Honour should have concluded that there were serious doubts as to whether the respondent was a person who could be believed upon his oath and that any corroboration produced by the respondent should likewise have been viewed with that conclusion in mind. 62 The trial Judge was impressed by the demeanour of the respondent in the witness box. The appellants submitted that his Honour made no express findings of credit. However, I think it is quite clear that he implicitly accepted the respondent as a witness of truth. He did so, although he was aware of and noted inconsistencies in his evidence and was aware of and noted that he had criminal convictions for dishonesty. Mr Whittle drew our attention to a passage in the speech of Lord Pearce in Onassis v Vergottis [1968] 2 Lloyd's Rep 403 at 431. Lord Pearce pointed out that credibility involves wider problems than mere demeanour and said that it is essential that the balance of probability is put correctly into the scales of weighing the credibility of a witness. His Lordship said: "...in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part." This passage shows how important was the letter of 11 July 1993, once it was found to be genuine. 63 I am not persuaded by any submissions that were made that we should or can interfere with these conclusions. The appellants relied upon the respondent's failure to call Lisa Atkinson. However, her absence was explained to the satisfaction of the trial Judge, who found that she and the respondent had parted company well before the hearing. On one account given by the respondent of the time that she was living at Lavidia, she would have been present in February 1992 when Mr Cooper said that he went to the house with Mr Ellis where a woman was waiting with an envelope at the ready which contained six $50 notes. There was an available inference that this was a payment of rent made after the time when, according to the respondent, Mr Ellis had agreed that the respondent should pay no rent. However, his Honour was satisfied with the explanation for Ms Atkinson's absence. Accordingly, the appellants do not advance their case by referring to her absence from the witness box. 64 The appellants attacked the evidence of Mr Earl and submitted that this evidence could not be viewed as corroborative and reflected poorly on the case the respondent had presented. But it is not clear that his Honour took this evidence into account and if so to what extent. The appellants submitted his Honour failed to take into account Mr Cooper's evidence and that of the non-expert witnesses the appellants called. The trial Judge referred to their evidence and there is no reason to suppose that he ignored what they had said. 65 A reading of Judge Moore's judgment, shows that he concluded on the probabilities that the letter of 1993 was genuine. That conclusion was largely based on the view he took, after careful analysis, of the expert evidence. The trial Judge was satisfied that the letter, being authentic, corroborated the respondent's evidence so that any earlier reservations he may have had about that evidence were dispelled in the respondent's favour. This is a perfectly proper approach and discloses no error. Nor do I think there was any error in the way his Honour treated the criminal convictions. The respondent impressed him as a witness of truth. Criminal convictions are to be taken into account but if the criminal gives evidence in a way which the trial Judge regards as plausible and impressive, a past criminal history may have, as his Honour thought, little significance. His Honour should have brought into account the generosity of the consideration in deciding whether the respondent's case was made out. But, since his Honour heard expert evidence on the point in great detail, I do not regard Mr Ellis's apparent generosity as likely to have led his Honour to any different conclusion if he had taken it into account in determining whether there was a contract. The letter, if genuine, was compelling. 66 In concluding the discussion of this part of the appeal, it is helpful to cite what was said by Brennan, Gaudron and McHugh JJ in Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479: "More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge 'has failed to use or has palpably misused his advantage' or has acted on evidence which was 'inconsistent with facts incontrovertibly established by the evidence' or which was 'glaringly improbable'."

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COSTS 68 The trial Judge ordered that the appellants should pay the plaintiff's costs on a party and party basis to 15 May 1996 and thereafter on an indemnity basis. The appellants appealed against the award of indemnity costs against them. Judge Moore dealt with the question of whether there should be indemnity costs in a second addendum to his reasons for judgment on 7 May 1999. From that it emerged that at a directions hearing on 12 February 1996, Judge Garling ordered the respondent to make an offer of settlement in writing by 15 May 1996 and the appellants to reply in writing within 14 days of receipt. Pursuant to those orders the respondent's solicitors wrote to the appellants' solicitors on 15 May 1996 referring to the orders and stating that the respondent would be prepared to settle for a sum of $120,000 inclusive of costs. The appellants replied by saying that they were not prepared to accept such offer. 69 Judge Moore said that the verdict for the plaintiff was a basic sum of $139,000 plus interest making a total of $199,847.72. His Honour made some calculations about interest and the costs that would have been incurred by the parties. He referred to Pt 19A of the District Court Rules designed to promote early settlement. He discussed the general principles concerning indemnity costs in some detail. Amongst the features that he took into consideration were the appellants' special position as trustees acting with legal advice in rejecting the offer of 15 May 1996 and the express instruction of the residuary beneficiary under the will. They were armed with the opinion of a well respected expert that the letter was a forgery. These and other matters his Honour carefully considered in coming to the conclusion that he did. The appellants stressed the particular difficulty trustees face when defending cases such as the present. The trial Judge was alive to these matters. No error has been shown in his reasoning. Costs are always a matter of discretion and absent any error I see no basis upon which this Court can interfere with the costs order. 70 In my opinion, the appeal should be dismissed with costs. 71 POWELL JA: I agree with Sheller JA. *****

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