Tabtill Pty Ltd v Creswick; Creswick v Creswick & Ors [2012] QCA 78

SUPREME COURT OF QUEENSLAND

CITATION: Tabtill Pty Ltd v Creswick; Creswick v Creswick & Ors [2012] QCA 78

PARTIES: In the “Tabtill Appeal”: / TABTILL PTY LTD AS TRUSTEE FOR THE JOHN CRESWICK FAMILY TRUST (appellant) v FELIX ANTONIO CRESWICK (respondent) / In the “Creswick Appeal”: / FELIX ANTONIO CRESWICK (appellant/cross respondent) v JOHN FRANCIS CRESWICK (first respondent/first cross appellant) WILLIAM GERARD CRESWICK (second respondent/second cross appellant) SHAYNE MARISE CRESWICK (third respondent/third cross appellant) JANE VERONICA CRESWICK (fourth respondent/fourth cross appellant) TABTILL PTY LTD ACN 010 408 545 (fifth respondent/fifth cross appellant) TABTILL NO 2 PTY LTD ACN 098 424 741 (sixth respondent/sixth cross appellant) TABTILL NO 3 PTY LTD ACN 106 070 848 (seventh respondent/seventh cross appellant) TABTILL NO 4 PTY LTD ACN 106 071 096 (eighth respondent/eighth cross appellant) T2 PROJECTS PTY LTD ACN 109 792 707 (ninth respondent/ninth cross appellant)

FILE NO/S: Appeal No 11039 of 2010 / SC No 10963 of 2007

DIVISION: Court of Appeal

PROCEEDING: General Civil Appeals – Further Orders

ORIGINATING COURT: Supreme Court at Brisbane

DELIVERED ON: 30 March 2012

DELIVERED AT: Brisbane

HEARING DATE: Heard on the papers

JUDGES: Fraser and White JJA, and Boddice J / Judgment of the Court

FURTHER ORDERS: 1. Tabtill Pty Ltd pay Felix Creswick’s costs of and incidental to Tabtill Pty Ltd’s appeal, to be assessed on the standard basis. / 2. The respondents to Felix Creswick’s appeal pay Felix Creswick’s costs of and incidental to the trial (including any reserved costs), and of and incidental to that appeal, to be assessed on the standard basis. / 3. Felix Creswick pay one-third of Tabtill Pty Ltd’s costs of and incidental to the cross-appeal. / 4. The application by the respondents to Felix Creswick’s appeal for an indemnity certificate under s 15 of the Appeal Costs Fund Act 1973 is refused. / 5. Order 6 made on 23 December 2011 is amended by omitting the words “listed in Annexure D to” and substituting the words “included in”. / 6. Order 8 made on 23 December 2011 is amended by substituting “Jane Veronica Creswick” for “John Francis Creswick” where the latter name appears for the second time. / 7. Order 10 made on 23 December 2011 is amended by adding the following text: “, and for the purpose of taking such accounts and making such further ancillary orders as are appropriate and consistent with these orders”.

CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – COSTS – where the respondent in the Tabtill Appeal and appellant/cross respondent in the Creswick Appeal argued that an award for costs should be made in his favour against the appellant in the Tabtill Appeal and the respondents/cross appellants in the Creswick Appeal – where the respondent in the Tabtill Appeal and appellant/cross respondent in the Creswick Appeal enjoyed substantial success on appeal – whether an award of costs should be made in favour of the respondent in the Tabtill Appeal and appellant/cross respondent in the Creswick Appeal / APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – COSTS – where the appellant/cross respondent in the Creswick Appeal applied for costs to be awarded on the indemnity basis in respect to the forgery case – where the appellant/cross respondent in the Creswick Appeal had substantial success on appeal with respect to the claims which represented a large portion of the trial and appeal – where the respondent/cross appellant in the Creswick Appeal argue that the appellant/cross respondent in that appeal engaged in disentitling conduct at trial pursuant to the trial judge’s critical assessment of their evidence – whether the appellant/cross respondent in the Creswick Appeal should be awarded costs on an indemnity basis / APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – APPEAL COSTS FUND – POWER TO GRANT INDEMNITY CERTIFICATE – WHEN REFUSED – where the respondents/cross appellants in the Creswick Appeal argue that an indemnity certificate under s 15 of the Appeal Costs Fund Act 1973 should be awarded in favour of the respondents/cross appellants to that appeal, except the first respondent/cross appellant to that appeal, in respect to the forgery issue – where the Court found that the trial judge erred in law by failing to make sufficient findings of fact – where the finding on appeal in favour of the appellant/cross respondent in the Creswick Appeal resulted from the Court’s findings of fact rather than merely the correction of the legal error – whether the Court’s discretion under s 15 was enlivened – whether the Court should exercise its discretion to award an indemnity certificate in favour of the respondents/cross appellants to the Creswick Appeal, except the first respondent to that appeal / Appeal Costs Fund Act 1973 (Qld), s 15 / Alborn & Ors v Stephens & Ors [2010] QCA 58, cited / Australian Prudential Regulation Authority v Holloway & Anor [2000] FCA 1245, cited / Tabtill Pty Ltd v Creswick; Creswick v Creswick & Ors [2011] QCA 381, cited / Yara Nipro Pty Ltd v Interfert Australia Pty Ltd [2010] QCA 164, cited

COUNSEL: No appearance for the appellant in the Tabtill Appeal and the respondents/cross appellants in the Creswick Appeal, the submissions were heard on the papers / No appearance for the respondent in the Tabtill Appeal and the appellant/cross respondent in the Creswick Appeal, the submissions were heard on the papers

SOLICITORS: DLA Piper Lawyers for the appellant in the Tabtill Appeal and the respondents/cross appellants in the Creswick Appeal / Hopgood Ganim for the respondent in the Tabtill Appeal and the appellant/cross respondent in the Creswick Appeal

1. THE COURT: On 23 December 2011, this Court gave judgment dismissing an appeal by Tabtill Pty Ltd (“Tabtill”), allowing an appeal by Felix Creswick (“Felix”) and allowing a cross-appeal by John Creswick and others (“the cross-appellants”).

2. The Court expressed provisional views about costs but gave the parties leave to make submissions on costs and other ancillary relief.

3. The parties have now filed written submissions. Unsurprisingly, there is no unanimity as to the costs orders, and no agreement on other ancillary orders.

Submissions

4. Felix contends the appropriate costs orders are:

(a) that Tabtill pay his costs of Tabtill’s appeal on the standard basis;

(b) that the respondents to his appeal pay his costs of the trial and of the appeal, assessed on an indemnity basis in respect of the forgery case, and on a standard basis in respect of the May agreement case and any other issues, both at trial and on appeal;

(c) that Felix pay one-third of the costs of the cross-appellants on their cross-appeal assessed on a standard basis.

5. Tabtill and the respondents to Felix Creswick’s appeal and cross-appellants contend all parties enjoyed a measure of success in their respective appeals and cross-appeal, and any costs orders must reflect the respective successes. They contend:

(a) the costs of the trial should await the conclusion of the “tracing exercise”, to be determined by a judge of the Trial Division;

(b) Tabtill should pay Felix’s costs of the Tabtill appeal on the standard basis;

(c) Felix should not have his costs of the appeal on the forgery issue, having regard to what is said to be disentitling conduct on his part. Alternatively, John Creswick alone should bear the costs of Felix’s appeal in respect of the forgery issue, assessed on a standard basis, or the respondents other than John Creswick should have an indemnity certificate under s 15 of the Appeal Costs Fund Act 1973 in respect of costs they are ordered to pay on this issue.

(d) the first to fourth respondents should pay Felix’s costs of the appeal on the May agreement assessed on a standard basis;

(e) Felix should pay one-third of the costs of the cross-appellants on their cross-appeal.

Costs

6. Felix had complete success on the forgery claim and the May agreement claim. The forgery and the May agreement claims took up the bulk of the evidence at trial, and of the appeal hearing. Whilst other claims by Felix at trial failed, and were not the subject of the appeal, that does not mean he should be deprived of his costs, or receive only a proportion of his costs.¹

7. The submissions made by the respondents to the Creswick appeal fail to give due recognition to the substantial success enjoyed by Felix in relation to claims which represented a large portion of the trial, and the appeal. Further, the respondents were represented by the same solicitors and counsel, both at trial and on appeal. All joined in the case advanced against Felix at trial, namely, that the signatures were not forgeries made by John but represented a second signature made by Felix, and that the May agreement was specifically enforceable.

8. The submission that Felix engaged in disentitling conduct largely relies on the trial judge’s critical assessment of Felix’s evidence. The trial judge was, however, equally critical of John Creswick’s evidence. Ultimately, Felix succeeded in establishing the signatures were forgeries, made by John. Against that background, Felix’s conduct is not of a nature to deprive him of an entitlement to costs when he succeeded in his primary claims, although it is relevant to whether he should receive costs on an indemnity basis.

9. Whilst there were other aspects of Felix’s claim which were abandoned late, or in which Felix ultimately did not succeed, it is inappropriate for this Court to keep a register of the wins and losses.² Where, as here, the losing protagonists were represented by the same solicitors and counsel, a global view should be taken by the Court in respect of costs.

10. Felix enjoyed substantial success. That success should be recognised by an award of costs in his favour, both at trial and on appeal. Due recognition of the lack of success in other aspects of Felix’s claim, and of Felix’s conduct in the litigation and at trial, should be given by awarding the costs of the trial, and of the appeal, on the standard basis, not an indemnity basis.

11. The respondents’ application for an indemnity certificate under s 15 of the Appeal Costs Fund Act 1973 in favour of the respondents other than John Creswick should be refused. Section 15 of the Act confers discretionary power to grant a certificate where an appeal succeeds on a question of law. Whilst the Court found that the trial judge had erred in law by failing to make sufficient findings of fact on the forgery issue,³ the finding on appeal in Felix Creswick’s favour resulted from the Court’s findings of fact rather than merely from the correction of the legal error. If the Court’s discretion under s 15 is enlivened in these circumstances, it should not be exercised in favour of sanctioning the expenditure of public funds to indemnify those who opposed a finding of forgery both at trial and on appeal.

Ancillary relief

13. Felix Creswick sought detailed orders for the taking of accounts in the Trial Division on the footing that such orders would give effect to the tracing order in Order 10 made on 23 December 2011. The respondents submitted that Order 10 confused the taking of an “account” and “tracing”, and that the formulation of the appropriate ancillary orders should be remitted to the Trial Division. Order 10 should be amended to remove any doubt that, as the Court intended, accounts may be taken in the Trial Division as appropriate. Furthermore, having regard to the issues raised in the written submissions, substantial further orders will need to be made to give effect to the orders made on appeal. It will be for a judge in the Trial Division to decide what further orders are appropriate in conformity with the disposition of the appeals and cross-appeal.

14. Felix Creswick sought an order for the removal of various caveats lodged by Tabtill. Those matters were not litigated in the appeal. If the Court’s judgment has removed the basis for any such caveat, Felix Creswick is of course at liberty to apply for the removal of the caveat in the Trial Division. It does not seem to be necessary for the Court to make any order in that respect.

15. Felix Creswick sought some minor variations to the form of Orders 6 and 8 in order to ensure that those orders give effect to the Court’s intention in making those orders. Those variations were not opposed and should be made.

Orders

16. The further orders are:

17. Tabtill Pty Ltd pay Felix Creswick’s costs of and incidental to Tabtill Pty Ltd’s appeal, to be assessed on the standard basis.

18. The respondents to Felix Creswick’s appeal pay Felix Creswick’s costs of and incidental to the trial (including any reserved costs), and of and incidental to that appeal, to be assessed on the standard basis.

19. Felix Creswick pay one-third of Tabtill Pty Ltd’s costs of and incidental to the cross-appeal.

20. The application by the respondents to Felix Creswick’s appeal for an indemnity certificate under s 15 of the Appeal Costs Fund Act 1973 is refused.

21. Order 6 made on 23 December 2011 is amended by omitting the words “listed in Annexure D to” and substituting the words “included in”.

22. Order 8 made on 23 December 2011 is amended by substituting “Jane Veronica Creswick” for “John Francis Creswick” where the latter name appears for the second time.

23. Order 10 made on 23 December 2011 is amended by adding the following text: “, and for the purpose of taking such accounts and making such further ancillary orders as are appropriate and consistent with these orders”.

Footnotes

1. Alborn & Ors v Stephens & Ors [2010] QCA 58 at [7]-[8]; Yara Nipro Pty Ltd v Interfert Australia Pty Ltd [2010] QCA 164 at [8]. ↩

2. Australian Prudential Regulation Authority v Holloway & Anor [2000] FCA 1245 at [51]. ↩

3. [2011] QCA 381 at [35]. ↩