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Creswick v Creswick

 

[2011] QCA 66

 

 

SUPREME COURT OF QUEENSLAND

PARTIES:

FILE NO/S:

Court of Appeal

PROCEEDING:

Application for Stay of Execution
Application for Extension of Time
Application to Strike Out

ORIGINATING COURT:

DELIVERED ON:

14 April 2011

DELIVERED AT:

Brisbane

HEARING DATES:

24 March 2011, 14 April 2011

JUDGE:

Fraser JA

ORDERS:

  1. The notice of cross appeal filed on 27 October 2010 by the defendant stand as a notice of appeal and the time for appealing is extended as necessary for that purpose.
  2. Upon the defendant by his senior counsel undertaking to file and serve upon the plaintiffs and defendants by counterclaim by 4.00 pm on 15 April 2011 the defendant’s consent to the order made by White J on 28 February 2008 being varied by the omission of the conditions in paragraphs 3(b) and (c) of that order, and upon the defendant undertaking by his senior counsel that he will diligently prosecute his appeal against orders made by Daubney J on 13 September 2010, until the determination of that appeal or further order there be a stay of order number 1 made by Daubney J on 13 September 2010.
  3. The defendant’s application for a stay of order number 2 made by Daubney J on 13 September 2010 is refused.
  4. The costs of the defendant’s application filed on 1 February 2011, the cross-respondents’ application filed on 10 February 2011, and the defendant’s application for orders that the cross appeal stand as an appeal and that the time within which to appeal be extended for that purpose, are reserved.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – WHEN GRANTED – where the trial judge made a decree of specific performance – where the decree required Felix Creswick to transfer his interest in a number of properties to the cross-respondents in consideration of a lump sum payment and regular weekly payments – where there is risk that the cross-respondents may sell or mortgage the properties – where the cross-respondents contended they would be prejudiced by a stay of the decree – where Felix Creswick contended that compliance with the decree would be complex and expensive – where none of the parties provided reliable evidence of their respective financial positions – where Felix Creswick offered an undertaking to expedite the appeal – where the cross-respondents argued that a stay would be unjust because an earlier Court order required them to make weekly payments to Felix Creswick together with payment of rates and land tax over a property as a condition of maintaining a caveat over that property – whether it is appropriate to grant a stay of the decree with or without conditions

APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – GENERALLY – where Tabtill Pty Limited (“Tabtill”) brought an appeal against certain orders of the trial judge – where Felix Creswick filed a notice of cross appeal in relation to other orders of the trial judge which were not contested in Tabtill’s notice of appeal – whether the phrase “decision appealed from” in rule 754 of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) limits the scope of a cross appeal to the matters raised in the notice of appeal – whether Felix Creswick’s notice of cross appeal is competent

APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN GRANTED – where Felix Creswick sought an extension of time within which to appeal in the event that his cross appeal was held to be incompetent – where an appeal had been previously foreshadowed in correspondence – where the notice of cross appeal was filed just over a fortnight after the expiry of the time for filing a notice of appeal under r 748 of the UCPR – where the cross-respondents argued that they were prejudiced by the delay in appealing, that the decision not to appeal was made deliberately and on a commercial basis, and that Felix Creswick’s prospects of success in the proposed appeal are poor – whether it is in the interests of justice to grant the extension of time

APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – WHEN GRANTED – where the trial judge also made an order directing the parties to bring in proposed orders giving effect to the decree of specific performance – where Felix Creswick argued that the draft orders prepared by the cross-respondents did not accurately reflect the terms of the agreement being enforced – whether it is appropriate to grant a stay of this procedural order

Uniform Civil Procedure Rules 1999 (Qld), r 5, r 744, r 747(1)(a), r 748, r 749, r 754, r 755(1)(a)
Uniform Civil Procedure Rules 2005 (NSW), r 51.17

Amos v Amos [2004] QCA 490 , not followed
Beil v Mansell (No. 1) [2006] 2 Qd R 199; [2006] QCA 173 , considered
Bernstrom v National Australia Bank Ltd [2002] QCA 309 , not followed
Berry v Green [1999] QCA 213 , cited
Colefax v Piggins & Anor [2001] QCA 427 , cited
Cook’s Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd [2008] 2 Qd R 453; [2008] QCA 322 , applied
Creswick & Ors v Creswick [2010] QSC 399 , cited
Croney v Nand [1999] 2 Qd R 342; [1998] QCA 367 , cited
Drew v Makita (Australia) Pty Ltd [2008] QCA 312 , cited
Elphick v MMI General Insurance Ltd & Anor [2002] QCA 347 , cited
Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30, applied
In Re Cavander’s Trusts (1881) 16 Ch D 270 , cited
JC Scott Constructions v Mermaid Waters Tavern Pty Ltd (No 1) [1983] 2 Qd R 243 , not followed
Ong v Dubois [2003] QCA 545 , considered
Richards v Cornford (No 3) [2010] NSWCA 134, cited
Virgtel Ltd & Anor v Zabusky & Ors (No 2) [2009] QCA 349 , not followed

COUNSEL:

C C Heyworth-Smith for the appellant/first cross-respondent and second to ninth cross-respondents
L F Kelly SC, with A C Stumer, for the respondent/cross-appellant

SOLICITORS:

DLA Phillips Fox for the appellant/first cross-respondent and second to ninth cross-respondents
Hopgood Ganim for the respondent/cross-appellant

[1]  FRASER JA: On 13 September 2010 a judge of the trial division decreed specific performance of an agreement made on 26 May 2007 (“the May agreement”) between the first plaintiff (John Creswick), the second plaintiff, the third plaintiff, the fourth plaintiff, and the defendant (Felix Creswick, who is John Creswick’s father).  The trial judge directed that the parties’ counsel bring in such orders as may be required to give effect to the decree of specific performance, made another consequential order, and otherwise dismissed the plaintiffs’ claim and the defendant’s counterclaim.  There was to be a subsequent hearing as to costs. 

[2] One effect of the order which otherwise dismissed the plaintiffs’ claim was to dismiss a claim brought by the fifth plaintiff (“Tabtill”) against the defendant in relation to the “Crump Street properties”.  On 11 October 2010 Tabtill filed a notice of appeal against that order.  The only parties to the appeal are Tabtill, as appellant, and the defendant, as respondent.  Upon the trial judge’s findings Tabtill was not a party to the May agreement and that agreement did not concern the Crump Street properties.[1]

[3] On 27 October 2010 the defendant filed a notice of cross appeal against the decree of specific performance of the May agreement and the order dismissing his counterclaim.  The notice of cross appeal contends that the defendant should have succeeded in his counterclaims against the plaintiffs for an order that the May agreement be set aside and against the plaintiffs and other cross-respondents (companies controlled by members of the Creswick family) for orders designed to vindicate the defendant’s allegations that John Creswick had forged his father’s signature on 105 documents over many years. 

[4] On 17 November 2010 Tabtill’s solicitors, who also represented the other plaintiffs and cross-respondents, wrote to the defendant’s solicitors contending that the cross appeal was ineffective because it was not limited to issues raised in Tabtill’s appeal.  The following day the defendant’s solicitors responded that in their opinion the cross appeal was in proper form. 

[5] On 1 February 2011 the defendant filed an application in this Court for a stay of the decree of specific performance of the May agreement and the procedural order requiring the parties to bring in orders giving effect to that decree, pending determination of the defendant’s cross appeal against the decree.  On 10 February 2011 the cross-respondents filed an application to strike out the defendant’s cross appeal.  The defendant maintained that the cross appeal was valid but in submissions on his behalf dated 14 March 2011 the defendant applied in the alternative for an order that the cross appeal stand as an appeal and that the time within which to appeal be extended for that purpose.

Application to strike out cross appeal

[6] Both counsel acknowledged that it was unnecessary to decide whether the cross appeal was competent if, as I have concluded, the defendant should be granted any necessary extension of time for appealing.  Nevertheless, in deference to counsels’ detailed written submissions I will express my views about this issue. 

[7] The cross-respondents contended that the defendant’s cross appeal is incompetent because it does not seek any variation of the order against which Tabtill appealed, that is, the order dismissing Tabtill’s claim in relation to the Crump Street properties.  The cross appeal challenged unrelated parts of the trial judge’s decision. 

[8] Rule 747(1)(a) of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) provides that a notice of appeal must state “whether the whole or part of the decision is appealed from”.   The word “decision” is defined in r 744 to mean “an order, judgment, verdict or an assessment of damages”.  Rule 749 provides that “[e]ach party to a proceeding who is directly affected by the relief sought in the notice of appeal or who is interested in maintaining the decision under appeal must be made a respondent to the appeal.”  Rule 754 provides that “[i]f a respondent intends to contend the decision appealed from should be varied, the respondent must file a notice of cross appeal stating the contention and serve it on any other party who may be affected.”  Under r 755(1)(a) the notice of cross appeal must state “the part of the decision to which the cross appeal relates”.

[9] The cross-respondents contended that Ong v Dubois[2] decided the point in their favour.  In that case a defendant appealed against an order for summary judgment against that defendant.  The plaintiff cross appealed against a different order made at the same hearing refusing summary judgment against another defendant.  Mc Murdo P struck out the cross appeal because it was not brought against the order appealed from.  Ong v Dubois supports the plaintiffs’ contention, but in that case there was no identity between any appellant and any cross-respondent whereas Tabtill is both the appellant in its appeal and a cross-respondent in the defendant’s cross appeal.  In Re Cavander’s Trusts[3] was cited for the defendant but that decision does not bear upon the present case.

[10]  Whether the cross appeal is regular depends upon the meaning of the expression “the decision appealed from” in r 754.  The defendant contended that the expression comprehended “the entirety of the decision of the lower court” rather than the particular part of the decision the subject of the notice of appeal, with the result that if an appeal is commenced “in respect of the lower court’s decision” the respondent to the appeal may contend by cross appeal that any aspect of that decision should be varied.  The defendant argued that the contrast between the expression “part of the decision” in r 747(1)(a) and r 755(1)(a) and the word “decision” in r 754 indicated that a cross appeal was not restricted to the part of the decision the subject of the notice of appeal. 

[11]  The more natural construction of r 754 is that the expression “the decision appealed from” refers to the subject matter of the appeal stated in the notice of appeal in accordance with  r 747(1)(a).  That construction also accords with r 749(1).  Rule 749(1) was plainly not designed to require an appellant to join as respondents persons who have no interest in upholding a challenged order, but that would be the effect of construing the very similar expression “decision under appeal” as comprehending every order made at first instance.  That construction is also consistent with the requirement in r 755(1)(a) for a notice of cross appeal to state “the part of the decision” to which the cross appeal relates.  That provision caters for a case in which a cross appeal seeks to vary only one part of an order against which an appeal is brought: for example, where a defendant appeals against a judgment for damages (which might be only one of a number of orders made by a trial judge) the plaintiff might cross appeal only against the amount of the damages.

[12]  This construction gives effect to the policy favouring expeditious resolution of the issues in an appeal.[4]  The defendant contended that such a construction is inefficient and might produce injustice by requiring a party to appeal when that party might not wish to challenge part of a decision unless another party challenged a different part of the decision.  That point of view is reflected in procedural rules in some other places, such as in r 51.17 of the Uniform Civil Procedure Rules 2005 (NSW), which authorises a cross appeal where a respondent wished to seek the discharge or variation “of the decision below”.[5]  However, that is not what r 754 provides.  It limits cross appeals to cases in which a respondent contends that “the decision appealed from” should be varied.

[13]  Tabtill did not appeal from the decision which the defendant wished to challenge.  The statement in Tabtill’s notice of appeal under r 747(1)(a) confined the subject matter of its appeal to part of the order dismissing all but one of the plaintiffs’ claims, namely so much of that order as dismissed Tabtill’s claims in relation to the Crump Street properties.  That was “the decision appealed from” by Tabtill for the purposes of r 754.  The defendant’s cross appeal does not seek any variation of that decision.  For these reasons the better view is that the notice of cross appeal is incompetent.

Extension of time

[14]  The Court is empowered to extend the time for appealing by UCPR r 748, under which a notice of appeal must, unless the Court of Appeal orders otherwise, be filed within 28 days after the date of the decision appealed from.

[15]  An applicant for such an extension must show that strict compliance with the rules will work an injustice, having regard to the circumstances including the history of the proceedings, the conduct of the parties, the nature of the litigation, the consequences for the parties of the grant or refusal of the application, and the prospects of the applicant succeeding in the appeal.[6] In Beil v Mansell (No. 1),[7] Muir J (with whose reasons Jerrard JA and Helman J agreed) held that the Court’s discretion to extend time was unfettered but must be exercised judicially and observed that:

“Mere lapse of time, of itself, is not generally regarded as imposing an insuperable obstacle to an extension of time, nor is the lack of satisfactory explanation for the delay, and the merits of the substantive application are a relevant consideration.” (citations omitted) 

[16]  The defendant had earlier foreshadowed an appeal in correspondence, but the filing and service of his notice of cross appeal made his position unmistakeably clear.  The notice of cross appeal was filed just over a fortnight after the expiry of the time for filing a notice of appeal.

[17]  The cross-respondents nevertheless contended that the defendant should be refused the extension of time he requires for appealing because, so the cross respondents argued, they were prejudiced by the defendant’s delay in appealing.  They contended that an affidavit by their solicitor established that two financiers had decided to enforce security interests against one or more of the cross-respondents because the defendant had not appealed.  At the hearing of the application I gave the defendant leave to file a short affidavit in response to the affidavit by the cross-respondent’s solicitor.  The defendant’s solicitor’s affidavit filed in purported compliance with that order was unnecessarily lengthened by the inappropriate inclusion of arguments.  Putting that affidavit aside, the evidence of prejudice remains unpersuasive.

[18]  As to one of the financiers, GE Commercial Corporation (Australia) Pty Ltd, the cross-respondents’ solicitor’s affidavit asserted only that the financier had lodged caveats and registered mortgages over properties owned by the plaintiffs “as a consequence of the fraud allegations” and the caveats were claimed to have caused a detrimental impact upon the plaintiffs’ ability to deal with those assets.  That evidence was struck out at the hearing because it was not in an admissible form.  I would add that it did not in any event demonstrate any prejudice attributable to the defendant’s delay in appealing.  As to the other financier, the Bank of Queensland, the solicitor’s affidavit exhibited letters from the financier’s solicitor which suggested that a result of the trial judge delivering judgment in favour of Tabtill was that Tabtill became obliged to repay a secured debt by 8 November 2010.  The first letter was dated 22 September 2010, which was before the expiry of the time limited for any appeal.  The last letter was dated 11 November 2010, which was months before the hearing of the application for an extension of time.  The current position was not explained.  There was no evidence that the cross-respondents had asked the financier to stay its hand pending appeal and no evidence that it refused to do so.  I am not persuaded that the cross-respondents were prejudiced in those respects, or that the asserted prejudice was related to the defendant’s delay in appealing.

[19]  Four of the cross-respondents (John, William, Shayne and Jane Creswick) claimed to have been prejudiced by continuing to make payments of rates and outgoings in respect of properties the subject of the May agreement (35 Sentinel Court and 905 Logan Road) as a condition of the maintenance of a caveat lodged by the plaintiffs.  The prejudice in this respect attributable to the defendant’s delay in appealing is not significant.

[20]  In the result, the cross-respondents were unable to point to any substantial prejudice occasioned by the defendant’s delay in appealing.  In light of the prompt cross appeal it should not be presumed that there is any likelihood of prejudice. 

[21]  The cross-respondents made the further points that: the defendant made a deliberate decision not to file a notice of appeal; that decision did not turn upon the supposed merits of an appeal but rather upon a commercial assessment which itself could not be finalised until the trial judge subsequently made orders about costs; and the defendant is now some five months late in filing a notice of appeal.  However, the delay in seeking to regularize the appeal was, for the most part, attributable to the defendant’s lawyer’s stance that the defendant’s prompt cross appeal was effective.  That was a defensible position although I have concluded that the better view is to the contrary.  The defendant should have applied for an extension of time earlier than he did, but the cross-respondents’ application to strike out the notice of cross appeal was also not pursued with particular expedition.  In these circumstances, the defendant’s initial decision not to appeal and his subsequent delays have much less significance than otherwise would be the case. 

[22]  The cross-respondents contend that the defendant’s prospects of success in the proposed appeal are so poor that an extension of time should be refused.  This issue is also raised in the defendant’s application for a stay, which the cross-respondents argued should be refused because the defendant’s proposed appeal is not arguable.

[23]  The cross-respondents emphasised the strength of the trial judge’s adverse findings about the defendant’s credibility.  The trial judge generally rejected the defendant’s credibility as a witness,[8] having found, for example, that the defendant “will lie whenever it suits his purpose and … when confronted with the truth he diverts blame onto others.”[9]  The defendant sought to outflank those adverse findings by focusing upon the evidence of other witnesses whose credibility was accepted by the trial judge and by emphasising adverse findings about the individual cross-respondents’ credibility.  For example, the trial judge declined to accept the evidence of any of John, Bill, Shayne and Felix Creswick unless the evidence either comprised admissions against their respective interests or was corroborated by independent evidence which the trial judge accepted.[10]

[24]  The defendant argued that the trial judge erred in rejecting the defendant’s claim that John Creswick put the defendant into penury by forging the defendant’s signature on over 100 documents.  That formed one basis of the defendant’s argument that the May agreement should not be enforced because the plaintiffs did not have “clean hands” or because he entered into as a result of undue influence or unconscientious dealing.  The trial judge’s rejection of the defendant as a witness of credit introduces a serious difficulty for his appeal on this topic.  So does the trial judge’s acceptance of the evidence of other witnesses (some of them apparently independent of the parties) to the effect that they witnessed the defendant signing the disputed signature in his name on various documents.[11]  However, the defendant referred to the evidence of some witnesses which was said to be to the opposite effect, and to the evidence of Mr West (the long term external accountant for Tabtill and John Creswick) that he did not recognise one of the disputed signatures as being the defendant’s signature.[12]

[25]  In response, the cross-respondents made the point that the trial judge carefully analysed the evidence upon which the defendant relied and did not regard it as sufficient to justify the finding of forgery sought by the defendant.[13]  There was also, for example, the evidence of Mr Flynn (who was formerly employed by Tabtill as an accountant) who identified the disputed signature as the defendant's signature.[14]  The trial judge also explained in considerable detail why he was not persuaded by the defendant’s argument that there were objective indicia of forgery.[15]  The cross-respondents contended that as a result, the defendant would face a difficult task in seeking to persuade the Court of Appeal to make the finding of forgery to the required Briginshaw[16] standard when the trial judge was not persuaded to do so. 

[26]  The defendant also argued that there was another basis for his contention that he entered into the May agreement as a result of undue influence or unconscientious dealing.  The defendant again focused on evidence other than his own, including the evidence of a solicitor, Mr Colville, who advised the defendant when he entered into the May agreement.  The defendant argued that Mr Colville’s accepted evidence[17] provided substantial support for the defendant’s case that the plaintiffs had created a false sense of crisis in order to procure the defendant's execution of the May agreement.  The defendant argued that on that ground alone it was inappropriate to order specific performance of that agreement.  The defendant referred, for example, to Mr Colville’s evidence that he was concerned about the timeframe within which the May agreement was required to be signed and that, shortly after it was signed, he wrote to the defendant and the plaintiffs’ solicitor expressing the opinion that the May agreement was signed under duress.[18]  The cross-respondents pointed out in response that the trial judge took that evidence into account and that at the trial the defendant “did not seek to elevate Mr Colville’s reference to “duress” to any level of conclusiveness.”[19]

[27]  The parties’ submissions about prospects were said to be preliminary and likely to be expanded if the defendant’s appeal is permitted to proceed, but those preliminary arguments were themselves detailed and extensive.  That reflected the length of the trial (some four and a half weeks), the detailed analysis in the trial judge’s 117 page reasons for judgment, and perhaps also the strength of the parties’ desires vigorously to pursue their dispute.  It is difficult to make any very reliable assessment of their merits without an extensive analysis of the evidence at trial and the trial judge’s reasons, a task which is impracticable to carry out on the limited record in this interlocutory application, but I have concluded that the proposed appeal appears to be arguable.

[28]  For these reasons it is in the interests of justice to grant the necessary extension of time.

Defendant’s application for a stay of the specific performance decree

[29]  The defendant sought a stay of the decree of specific performance of the May agreement. 

[30] The trial judge found that the operative parts of the May agreement provided:

“1. John and William hereby agree to pay to Felix within 3 months of the date of this Agreement the sum of Six Hundred Thousand Dollars ($600,000.00) in full and final satisfaction of any alleged obligation which John and William might bear to Felix and as a once only contribution to the reduction or resolution of any liabilities or indebtedness which Felix might have to any person or entity including but not limited to the resolution of a dispute between Felix and one Marcia Banfield. Felix for his part, acknowledges that upon receipt of the said sum of $600,000.00 John and William will be under no liability to Felix of any description or in respect of any matter or obligation which Felix might now have or might afterwards incur.

2. John and William will pay to Felix the sum of $1250.00 per week for the whole of the rest of Felix’s natural life, payments to be made to Felix or as he may direct on that day of the week which Felix finds most convenient and is notified by Felix to John and William in writing.

3. (a) In consideration of these presents and in consideration of John’s agreeing to assign to Felix all his right title and interest in Seahaven Court (being described in Item 1 of the Schedule hereto) to be held by Felix and Shayne Marise Creswick as joint tenants until the demise of either Felix or Shayne Marise Creswick. Felix hereby unconditionally agrees to assign and transfer to William and Jane the property known as Sentinel Court.

4.Felix agrees with John that the value to be ascribed to Sentinel Court (being described in Item 2 of the Schedule hereto) being vacant land, for the purposes of this transaction is ONE MILLION DOLLARS ($1,000,000.00).

5. John agrees with Felix that the value to be ascribed to John’s half interest in Seahaven Court being a dwelling and other improvements on the relevant land together with Felix’s right to reside in Seahaven Court until his demise is ONE MILLION DOLLARS ($1,000,000.00).

6. Felix agrees irrevocably to maintain Seahaven Court in an unencumbered condition for the duration of his lifetime and further agrees not to assign, transfer or set over or attempt to assign, transfer or set over his interest in Seahaven Court in any way to any person or corporation without Shayne Marise Creswick’s consent in writing first had and obtained.

7. Felix agrees irrevocably and unconditionally not to apply to the Registrar of Titles for a severance of the joint tenancy between Felix and Shayne Marise Creswick pursuant to S.59 of the Land Title Act 1994 (as amended).

8. To more effectively secure the conditions and agreements herein contained, Felix and Shayne Marise Creswick will consent to and will endorse their consent upon a caveat to be lodged in the Land Titles Office against the title to Seahaven Court by John which caveat is to remain in force until such time as Felix and Shayne Marise Creswick jointly apply and consent in writing to the withdrawal of the caveat.

9. (a) In the event that any competent court should order the removal of the caveat provided for in paragraph 6 [sic] hereof or in the event that any application is made to such a court for such an order Felix will transfer and assign his interest in Seahaven Court to John Francis Creswick and Shayne Marise Creswick forthwith upon the making of any such application.

(b) To effectively secure the obligation imposed upon Felix under the provisions of this clause both Felix and Shayne Marise Creswick will execute a transfer of the said property to John Francis Creswick and Shayne Marise Creswick as joint tenants.

(c) Such transfer to be held in escrow by John’s solicitors from time to time or by an agreed escrow holder and failing agreement an escrow holder to be nominated by the President for the time being of the Queensland Law Society Incorporated.

(d) The relevant transfer referred to in 9(a) (b) and (c) hereof will be held in escrow and will not be released to John or Shayne Marise Creswick until such time as a court of competent jurisdiction makes an order for the removal of the caveat whereupon John and Shayne Marise Creswick will be at liberty to lodge immediately in the Land Titles Office the relevant transfer.

(e) Proof of the circumstances under which the transfer held in escrow is to be released to John and Shayne Marise Creswick will be an Affidavit executed by John setting out the circumstances to which Affidavit is exhibited a copy of the relevant court order or a copy of any application for any such court order for the removal of the caveat. The affidavit and exhibits will be conclusive evidence of its contents and will be sufficient grounds for the escrow order to release the relevant transfer to John and Shayne Marise Creswick.

10. Felix agrees to transfer and convey to John William and Felix as tenants in common in the proportions of 33⅓, 33⅓% and 33⅓% respectively the property known as 905 Logan Road, Holland Park (being described in Item 3 in the Schedule hereto) and Felix further agrees to execute all such documents and to do and carry out all measures as may be necessary to implement such a conveyance.

[Clause 11 struck through in original].

12. Felix does hereby irrevocably make nominate constitute and appoint and in his place and stead put and depute John to be his attorney for the purpose of allowing and enabling John to deal with any interests Felix may have in any properties which may have been pledged as security for an advance of monies for the purpose of carrying on business on properties in which Felix has an interest.

13. The respective transfers and assignments of land pursuant to this agreement will be deemed to be subject to the standard terms and conditions of the form of Contract of Sale currently approved by the Real Estate Institute of Queensland and the Queensland Law Society Incorporated. The conditions of any such form of Contract shall be deemed to have been imported into and to apply unequivocally to this agreement.”[20]

[31] The parties are in dispute about the terms of the orders necessary to carry out the decree of specific performance of that agreement, but I understood it to be uncontentious for present purposes that the orders will at least require the following:

(a)11 Seahaven Court, Raby Bay: John Creswick will transfer his half interest as one of the registered proprietors to the defendant, who would then become a joint tenant with the other registered proprietor, John Creswick’s wife Shayne Creswick.  The defendant would then be restrained from transferring or encumbering his interest in the property.

(b) 905 Logan Road, Holland Park: the defendant, presently the registered proprietor, will transfer to each of John Creswick and William Creswick a one third interest in the land, with the property then held by the three of them in equal shares to be used by John and William Creswick in connection with the conduct of their business.

(c) 35 Sentinel Court, Raby Bay: the defendant will transfer his interest as registered proprietor to William Creswick and his wife Jane Creswick.

(d) John and William Creswick will pay the defendant a once-off lump sum of $600,000 and a further sum of $1,250 per week for the rest of the defendant’s life.

[32]  I have given only a broad summary of likely orders which are of most significance for present purposes.  The trial judge might consider it appropriate to make other orders, for example, orders referable to other obligations under the May agreement, the breach or non-performance of obligations under that agreement, or applicable equitable principles.  I should emphasise, however, that nothing in these reasons is intended to reflect any view about the appropriate orders, which are for the trial judge to determine.

[33] I was referred to many decisions concerning the principles upon which the Court acts in deciding to grant a stay pending appeal.  The overwhelming weight of authority in this Court rejects the test that the applicant must show “special or exceptional circumstances”.[21]  I adopt the approach expressed by Keane JA, with whose reasons McMurdo P and White AJA agreed, in Cook’s Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd:

“The decision of this Court in Berry v. Green suggests that it is not necessary for an applicant for a stay pending appeal to show “special or exceptional circumstances” which warrant the grant of the stay. Nevertheless, it will not be appropriate to grant a stay unless a sufficient basis is shown to outweigh the considerations that judgments of the Trial Division should not be treated as merely provisional, and that a successful party in litigation is entitled to the fruits of its judgment. Generally speaking, courts should not be disposed to delay the enforcement of court orders. The fundamental justification for staying judicial orders pending appeal is to ensure that the orders which might ultimately be made by the courts are fully effective: the power to grant a stay should not be exercised merely because immediate compliance with orders of the court is inconvenient for the party which has been unsuccessful in the litigation.”[22] (citations omitted)

[34]  Contrary to one of the defendant’s arguments, the importance of not treating the specific performance decree as being merely provisional is not lessened by the fact that in this matter the trial judge is yet to decide upon the appropriate costs orders.  However, it is immediately apparent that if the defendant is required to transfer his interests in 35 Sentinel Court and 905 Logan Road there is a risk that those plaintiffs to whom the interests are transferred may sell or mortgage the properties so as to put it beyond the Court’s power to require a re-transfer in the event of asuccessful appeal by the defendant.  So much was suggested by the plaintiffs’ argument that William and Jane Creswick, and John and William Creswick, will suffer prejudice if the decree is stayed by not being able to use 35 Sentinel Court and 905 Logan Road respectively as security.  Furthermore, on 11 March 2011 the plaintiffs’ solicitors wrote to the solicitors for the defendant stating that the plaintiffs’ solicitors held instructions to file an application (inferentially, an application for the appointment of statutory trustees for sale) concerning properties which included 905 Logan Road and 35 Sentinel Court, and that the appropriate orders might depend upon the outcome of the present applications.

[35]  The plaintiffs argued that the defendant’s appeal would not be rendered nugatory in such a case because the plaintiffs could be required to compensate the defendant for the loss of the properties.  However there remains the prospect that the properties transferred to the plaintiffs under the specific performance decree might not be available for a re-transfer to the defendant if he wins his appeal.  Furthermore, the defendant might then find that the plaintiffs’ assets are not readily available for the payment of damages or compensation in lieu of the land, the value of which might exceed the amount of money paid to the defendant under the decree.  The reality of the risk is illustrated by the trial judge’s adverse credibility findings concerning John Creswick and other plaintiffs.  Those findings were based in part upon evidence of great enmity which John Creswick felt towards the defendant.[23]  The trial judge’s similar findings concerning the defendant were at least as unflattering,[24] but for present purposes what matters is the likely conduct of the plaintiffs if the specific performance decree is not stayed.  The plaintiffs have not offered any undertaking in place of the land presently registered in the defendant’s name which the plaintiffs threaten to alienate if the specific performance decree is not stayed, and the plaintiffs have also not provided evidence of assets which might be available for execution on the defendant’s application if he succeeds in his appeal.

[36]  Any disadvantage to the plaintiffs arising from a stay pending determination of the appeal is ameliorated to some extent by the defendant’s undertaking to expedite the appeal, particularly as the orders proposed by the plaintiffs to give effect to the decree contemplate a three month settlement period (that being said to be consistent with a provision in the May agreement).  William and Jane Creswick nevertheless contend that they will be disadvantaged because they will not be able to use 35 Sentinel Court for its residential purpose, but it is a vacant block of land and there is no evidence that they do not have their own residence elsewhere or that denial of access to 35 Sentinel Court is significant, financially or otherwise.  John and William Creswick contend that they will be disadvantaged by not being able to use 905 Logan Road for its intended purpose as business premises and they will be denied access to income generated by use of that property by third parties.  There is no evidence to suggest that this is significant.  I have already mentioned that William and Jane Creswick, and John and William Creswick, also contend that they are prejudiced by not being able to use 35 Sentinel and 905 Logan Road respectively as security.  John and Shayne Creswick refer to a further disadvantage in being denied access to the property at 11 Seahaven Court.  Again, there is no evidence that any of this is significant. 

[37]  The plaintiffs referred to the possibility that the defendant might become bankrupt and 35 Sentinel Court and 905 Logan Road might become entangled in the bankruptcy.  The evidence cited for the proposition that the defendant might become bankrupt was a paragraph in the affidavit of the defendant’s solicitor to the effect that the defendant would become bankrupt if the Court ordered the defendant to pay sums specified in the draft orders for specific performance proposed on behalf of the plaintiffs.  The plaintiffs did not point to any evidence that the defendant might become bankrupt as a result of an order staying the decree.  There is also no basis for assuming that if the plaintiffs defeat the defendant’s appeal the plaintiffs’ interests under the May agreement would be rendered unenforceable by any bankruptcy of the defendant. 

[38]  The plaintiffs rely also upon the prospect that the individual plaintiffs would suffer stress by reason of the granting of the stay.  Such an order seems more likely to generate disappointment than materially greater degrees of stress which might in any event be generated by the litigation of Tabtill’s and the defendant’s respective appeals. 

[39]  The defendant argued that potential prejudice arose from the fact that performance of the May agreement would be a complex and expensive undertaking.  I would not regard the costs of effecting and (if the defendant wins his appeal) unwinding those transactions as significant in the context of this litigation.  The defendant also referred to prejudice arising from the plaintiffs’ insistence in their solicitor’s correspondence that the orders giving effect to the decree should require the defendant to make payments which, so the defendant contended, the defendant should not be obliged to make under the decree.  The defendant contended that he did not have the resources to make those payments.  That proposition relied upon astatement in the defendant’s solicitor’s affidavit that, if the Court ordered the defendant to pay the sums specified in the draft orders proposed by the plaintiffs, “he will not be able to pay.”  That bald statement was not supported by comprehensive reference to underlying facts.  A previous paragraph in the affidavit referred only to the absence of real estate which the defendant could sell or encumber to raise funds and concluded with the bare assertion that the defendant “has limited funds for his day-to-day living expenses and those of his de facto partner, whom he supports.”  There was no reference in the defendant’s evidence to other apparent sources of income, for example, the rental paid to the defendant by the tenants of 905 Logan Road (to which the solicitor referred elsewhere in the affidavit).  Having regard to those matters, the trial judge’s adverse findings about the defendant’s credibility, and the absence of any identification of the sources for the solicitor’s belief regarding the extent of the defendant’s assets, I am not prepared to act on the solicitor’s evidence about the defendant’s financial position.

[40]  The considerations to which I have so far referred strongly favour the granting of astay.

Conditions of a stay order

[41]  The plaintiffs argued that because the defendant continues to reside at 11Seahaven Court, although he has no entitlement to do so unless the May agreement is enforced, it should be a condition of any stay that the defendant must pay market rent for his occupation of that property.  However the plaintiffs did not refer to any finding of the trial judge which established that the defendant had no such entitlement.  I decline to impose that suggested condition.

[42]  There is more substance in the plaintiffs’ contention that a stay would work injustice because, although performance of the May agreement would be stayed, the plaintiffs would be required to continue to pay the rates and outgoings for 35 Sentinel Court and 905 Logan Road, and for the properties known as 8 and 10 Crump Street, Holland Park, and Office Lane, Wanora, and to make weekly payments to the defendant of $1,250.  Those obligation were imposed by paragraphs 3(b) and (c) of  an order made by White J (as her Honour then was) on 28 February 2008 as conditions of permitting the retention over 35 Sentinel Court of caveat numbered 711300726 lodged by William and Jane Creswick.  The caveat precluded the defendant from alienating 35 Sentinel Court, thereby securing William and Jane Creswick’s claimed interest in it under the May agreement. 

[43]  The defendant argued that the conditions amounted merely to the price for maintenance of the caveat.  That may be so, but the circumstances in which the conditions were imposed changed once the plaintiffs vindicated their claim to 35 Sentinel Court at trial.  The defendant has been found to be obliged to transfer 35 Sentinel Court to William and Jane Creswick.  They may wish to continue to pay the rates and land tax to preserve the property, but it is not easy to see a justification for making that payment a condition of retention of a caveat which merely secures their established entitlement to the property.  On the other hand, the defendant seeks a stay on the premise that he will succeed in his appeal, in which case he will remain the sole proprietor of 35 Sentinel Court and prima facie the person obliged to pay the rates and land tax.  The consideration adverted to by the defendant, that the caveat precludes the defendant from raising money for his legal fees from the use of property of which he is the sole registered proprietor, might have been significant when White J imposed the conditions, but it has little force now that the plaintiffs have established their claim. 

[44]  The defendant pointed to evidence that the plaintiffs had failed to make some of the payments required by the conditions of the 28 February 2008 order, but the plaintiffs do not ask here to be relieved on any accrued obligation to make such payments.  Any past default does not bear materially upon the question whether it is just to stay the specific performance decree.

[45]  The defendant also argued that the continuance of the plaintiff’s obligation to pay $1,250 per week to the defendant could not prejudice the plaintiffs because, if no stay were granted and the May agreement were specifically enforced, the May agreement itself would oblige the plaintiffs to make the weekly payments.  However, the defendant did not contend that the obligation to make the weekly payment presently subsists even though the defendant has repudiated his own obligations under the May agreement.  The obligation to make the weekly payment is therefore not materially distinguishable from the obligation to pay rates and land taxes.

[46]  The defendant referred to financial difficulties and hardship which the defendant would suffer if a stay were not granted, or if it were granted only on terms which relieved the plaintiffs of those obligations.  However, the evidence of the defendant’s financial circumstances upon which that argument was based was unreliable for the reasons I gave earlier.  The defendant also referred to what was contended to be the history of the conduct of businesses by the defendant, John Creswick, and others, and to the fact that Tabtill or another cross-respondent had the benefit of a mortgage over some properties.  These arguments assumed that the defendant would succeed in his cross appeal.  I am not persuaded that the cross appeal has sufficient apparent merit to justify refusing to impose what are otherwise appropriate conditions of a stay of the specific performance decree.

[47]  It does strike me as unjust that the defendant should be granted a stay of the decree for specific performance whilst the plaintiffs continue to be required, as a condition of maintaining a caveat which merely secures land the subject of the decree, to comply with conditions 3(b) and (c) of the 28 February 2008 order.  The defendant contended that I should not take those conditions into account because the plaintiffs applied on 9 March 2011 for a variation of the orders of Justice White and that application will likely be determined soon.  However, a determination that conditions 3(b) and (c) should not be omitted pursuant to that application will not necessarily bear upon the justice of ordering a stay pending appeal whilst those conditions remain in force.  The written submissions exchanged by the parties deal extensively with this issue and I see no reason why I should not take those submissions into account. 

[48]  For the reasons I have given, I am prepared to grant a stay only upon the condition that the retention of the plaintiffs’ caveat over 35 Sentinel Court is not subject to the conditions expressed in paragraphs 3(b) and (c) of the 28 February 2008 order.

Defendant’s application for a stay of the procedural order

[49]  The defendant also sought a stay of the trial judge’s direction that the parties’ counsel bring in such orders as may be required to give effect to the decree of specific performance of the May agreement.

[50]  Many of the defendant’s arguments on this topic were directed to his proposition that the orders drafted by the plaintiffs did not accurately reflect the terms of the May agreement but instead evidenced an inequitable attempt by the plaintiffs to secure benefits to which they were not entitled.  Those arguments may more appropriately be made before the trial judge for the purpose of finalising the orders necessary to give effect to the decree of specific performance.  The defendant’s additional costs of appearing at such a hearing must be insignificant in comparison with what is at stake in the litigation and the costs already incurred by the defendant and to be incurred in his appeal.  If the defendant loses his appeal, a stay of the procedural order might disadvantage the plaintiffs by delaying the implementation of the specific performance decree.  Whether or not that is so, the defendant did not point to any disadvantage resulting from refusal of a stay of the procedural order as would justify the imposition of such an unusual stay.

Orders

[51] I order that:

1. The notice of cross appeal filed on 27 October 2010 by the defendant stand as a notice of appeal and the time for appealing is extended as necessary for that purpose.

2. Upon the defendant by his senior counsel undertaking to file and serve upon the plaintiffs and defendants by counterclaim by 4.00 pm on 15 April 2011 the defendant’s consent to the order made by White J on 28 February 2008 being varied by the omission of the conditions in paragraphs 3(b) and (c) of that order, and upon the defendant undertaking by his senior counsel that he will diligently prosecute his appeal against orders made by Daubney J on 13 September 2010, until the determination of that appeal or further order there be a stay of order number 1 made by Daubney J on 13 September 2010.

3. The defendant’s application for a stay of order number 2 made by Daubney J on 13 September 2010 is refused.

4. The costs of the defendant’s application filed on 1 February 2011, the cross-respondents’ application filed on 10 February 2011, and the defendant’s application for orders that the cross appeal stand as an appeal and that the time within which to appeal be extended for that purpose, are reserved.

Footnotes

[1] Creswick & Ors v Creswick [2010] QSC 339 at [255], [356].

[2] [2003] QCA 545.

[3] (1881) 16 Ch D 270.

[4] See Uniform Civil Procedure Rules 1999 (Qld) r 5, which provides: “The purpose of these rules is to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense.”

[5] See Richards v Cornford (No 3) [2010] NSWCA 134 at [133] per Basten JA.

[6] See Gallo v Dawson (1990) 93 ALR 479 per McHugh J (affirmed in Gallo v Dawson (No 2) (1992) 109 ALR 319).

[7] [2006] 2 Qd R 199 at 207 [40].

[8] Creswick & Ors v Creswick [2010] QSC 339 at [97].

[9] Creswick & Ors v Creswick [2010] QSC 339 at [93].

[10] Creswick & Ors v Creswick [2010] QSC 339 at [110].

[11] For example, Creswick & Ors v Creswick [2010] QSC 339 at [145], [153], [169].

[12] Creswick & Ors v Creswick [2010] QSC 339 at [225].

[13] Creswick & Ors v Creswick [2010] QSC 339 at [118]-[254].

[14] Creswick & Ors v Creswick [2010] QSC 339 at [189], [191] and [192].

[15] Creswick & Ors v Creswick [2010] QSC 339 at [226]-[247].

[16] Briginshaw v Briginshaw (1938) 60 CLR 336.

[17] Creswick & Ors v Creswick [2010] QSC 339 at [298]-[307], [309]-[313], [336].

[18] Creswick & Ors v Creswick [2010] QSC 339 at [305]-[307].

[19] Creswick & Ors v Creswick [2010] QSC 339 at [307].

[20] Creswick & Ors v Creswick [2010] QSC 339 at [258].

[21] See Berry v Green [1999] QCA 213 at p 3 per de Jersey CJ (McMurdo P and Demack J agreeing); Croney v Nand [1999] 2 Qd R 342 at 348 [33] per McPherson JA, Pincus JA and Jones J; Colefax vPiggins & Anor [2001] QCA 427 at p 2 per Williams JA; Elphick v MMI General Insurance Ltd & Anor [2002] QCA 347 at [8]-[9] per Jerrard JA; Cook’s Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd [2008] 2 Qd R 453 at 455 [12] per Keane JA (McMurdo P and White AJA agreeing); and Drew v Makita (Australia) Pty Ltd [2008] QCA 312 at p 3 per Keane JA. Cf JC Scott Constructions v Mermaid Waters Tavern Pty Ltd (No 1) [1983] 2 Qd R 243 at 246-247 per Master Lee QC; Bernstrom v National Australia Bank Ltd [2002] QCA 309 at p 3 per McMurdo P; Amos vAmos [2004] QCA 490 at p 4 per McMurdo P; and Virgtel Ltd & Anor v Zabusky & Ors (No 2) [2009] QCA 349 at [19] per McMurdo P (Mullins and Philippides JJ agreeing).

[22] [2008] 2 Qd R 453 at 455 [12].

[23] See in particular Creswick & Ors v Creswick [2010] QSC 339 at [7], [75]-[85].

[24] See in particular Creswick & Ors v Creswick [2010] QSC 339 at [88]-[98].

Close

Editorial Notes

  • Published Case Name:

    Creswick v Creswick & Ors; Tabtill Pty Ltd & Ors v Creswick

  • Shortened Case Name:

    Creswick v Creswick

  • MNC:

    [2011] QCA 66

  • Court:

    QCA

  • Judge(s):

    Fraser JA

  • Date:

    14 Apr 2011

Litigation History

Event Citation or File Date Notes
QCA Interlocutory Judgment [2011] QCA 66 14 Apr 2011 -

Appeal Status

No Status