Creswick v Creswick (No. 2)[2011] QSC 118

SUPREME COURT OF QUEENSLAND

[1] When I delivered the principal judgment in this matter[1] I called on the parties to make submissions on costs.  As will appear, each party has taken full advantage of that opportunity.  The matter was complicated somewhat in the interim by the making of costs applications against third parties, but those matters are not relevant for present purposes.  In this judgment on costs, I will adopt the same nomenclature conventions as were used in the principal judgment.

[2] It is convenient to commence by summarising the outcome of the principal proceeding:

(a)The primary relief sought by the plaintiffs was rectification of the May Agreement and specific performance of that agreement as rectified.  I refused the claim for rectification and concluded[2] that the May Agreement in the form executed by the parties on 25 and 26 May 2007 was and remains a binding agreement between the parties.  Further, I rejected Felix’s claims that the May Agreement ought be set aside as an unconscientious dealing or because Felix was subject to undue influence by John;

(b)By reason of my holding that the May Agreement bound the parties, I considered it unnecessary to consider the alternative cases advanced by John’s side concerning constructive and resulting trusts;

(c)I refused the relief claimed by John’s side for a declaration concerning the ownership of 503 Logan Road and the claim for repayment by Felix of some $141,000, which was alleged to have been wrongly paid to Felix instead of Tabtill.  My reasons for doing so were stated as follows:

“[361]In oral argument, however, John’s counsel accepted that, if I upheld the May Agreement, then it ought be regarded as representing what was described in argument as a “wash up” between the parties.  To put that more accurately, it is objectively clear that the parties, by the terms of the May Agreement, intended once and for all to regularise their intra-family affairs and settle their disputes.  Objectively viewed, the May Agreement was also to be regarded as satisfying any claims which the parties might have had as between one another concerning, inter alia, precisely the sorts of further claims which John’s side seek to advance separately.”

(d)Felix’s principal counterclaim, by which he contended at trial that John had on many occasions over the years forged Felix’s signature on bank security, property transfer and other documents, was dismissed.  In that regard, I found:

“[253]The allegations made by Felix were serious indeed.  Proof of the forgeries by John required something more than “inexact proofs, indefinite testimony, or indirect inferences”.[3]  In the case which was run by Felix at trial, Felix needed, in order to succeed on the forgery claims, to persuade me on the balance of probabilities that John had committed these forgeries.  My adjudication of whether he has met that standard of proof, however, needs to be made having regard to the seriousness of, and consequence of, the allegations.  The evidence in this case provided some support for the proposition that the disputed FC signatures were not written by Felix.  Having considered the evidence as a whole, however, I consider that I cannot be satisfied to the requisite standard that Felix has proved that John forged the disputed FC signatures.”

Further cases advanced by Felix in reliance on the alleged forgeries in respect of alleged fiduciary duties owed by John and with respect to the transfer of the share in Tabtill No. 2 were also dismissed;

(e)Further alternative counterclaims by Felix alleging property development and business development partnerships with John, and a counterclaim in respect of the Wellington Point property, were dismissed on Felix’s own evidence;[4]

(f)I ordered that there be a decree for specific performance of the May Agreement, saying:

“[377]I have given careful consideration to the question whether, in light of the findings I have made about both John and Felix, there ought be any orders made in relation to the May Agreement.  It seems to me, however, that in the particular and peculiar circumstances of this case there is an overriding interest in achieving finality and making plain what is required of the parties to give effect to the May Agreement, which I regard as representing, and which I consider was intended to be, the “once and for all” settlement as between the parties.  There will, therefore, be a decree for specific performance of the May Agreement.”

[3] In short, therefore, it can be said that:

(a)John’s side failed in respect of the primary relief sought, i.e. rectification and specific performance of the May Agreement as rectified.  At best, it can be said that they had some partial success because of my decision to order specific performance of the May Agreement, albeit for the reasons quoted above;

(b)Felix failed completely on his counterclaims.

[4] It was submitted for John’s side that:

(a)Felix ought pay the plaintiffs’ standard costs of the claim, and

(b)Felix ought pay the costs of the defendants by counterclaim, with such costs to be assessed on the indemnity basis because of:

(i)certain offers made to Felix prior to and in the course of the trial, and/or

(ii)the alleged unreasonableness of Felix’s conduct of the counterclaim.

[5] Felix submitted that the appropriate order in each of the claim and counterclaim would be that Tabtill pay the costs of each party on an indemnity basis.  In advancing this submission, Felix adopted what I had expressed at the time of delivering the judgment as a “preliminary and unformed view” as to what might constitute an appropriate costs order in what was undoubtedly a case involving “particular and peculiar circumstances”.

[6] Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) r 681(1) provides:

“Costs of a proceeding, including an application in a proceeding, are in the discretion of the court but follow the event, unless the court orders otherwise.”

[7] This rule reflects the general proposition that an award of costs is discretionary, but generally that discretion is exercised in favour of the successful party.[5]  Accepting that statement of the general position, there is also abundant authority for the proposition that the Court has a wide discretion with respect to costs.  That discretion, however, is to be exercised judicially and not by reference to “idiosyncratic notions or to facts and circumstances irrelevant to the case”.[6]  The High Court, however, has made it clear[7] that:

(a)There is no automatic rule that costs follow the event;

(b)There is no absolute rule that, in the absence of disentitling conduct, a successful party is to be compensated by the unsuccessful party;

(c)There is no rule that there is no jurisdiction to order a successful party to bear the costs of the unsuccessful party.

[8] On the face of it, John’s side enjoyed some success on the claim and complete success on the counterclaim.  It is quite understandable that their primary submission is that the general position, as described above, would see costs orders in their favour.  The first question, therefore, is whether a proper judicial exercise of the wide discretion as to costs results in something other than the general position, and specifically whether a proper judicial exercise of the discretion should visit all of the parties’ costs on Tabtill.

[9] Felix advanced seven contentions in support of the proposition that the appropriate exercise of the discretion would result in Tabtill paying all parties’ costs on the indemnity basis.

[10] First, and principally, it was submitted that this was, in essence, a dispute amongst family members which was largely concerned with the fortunes of John, Felix and Tabtill.  To the extent that one might look for an underlying rationale for the parties having engaged in this litigation, that statement probably summarises the position accurately.  In respect of the role of Tabtill within the family, it is worth repeating my findings that:

“[32]It is clear that Tabtill operated, in effect, as the cash box for the members of the Creswick family for many years.  At least until the establishment of the other companies, the businesses and property dealings in which they were engaged were run and financed through Tabtill.  Shayne and Jane were listed in Tabtill’s books as employees.  Wages were paid to the Creswick family members.  But additionally each of them was provided with a credit card (and, in at least Felix’s case, cheque books) which each could use for personal expenses.  Bill described it as follows:

“Okay.  Now, in terms of you being paid, how were you paid? –

I was on a weekly income.

Like a wage? --  Just a wage.

Did you get commissions on cars? --  No.  There wasn’t such a thing as – the salesmen got commissions.  We didn’t receive commissions, it was -----

When you say “we”? --  Okay.  I didn’t receive commissions.  It was calculated in the deals but, I mean, I never received commission because we had a floating account, if you wanted to call it, an expense account that we could draw on and use and it was there to be used and I obviously offset it for what income that I brought in.

When you say a floating at, just explain that to me? --  Oh, if I needed fuel or shoes or clothes or – you know, we had an expense account, a credit card, an American Express card.

You use the word “we” again? --  My wife and I.

Right.  An American Express card? --  Yeah.

Chequebook? --  No, never had a chequebook, no signature or nothing.

Just credit card? --  Just an American Express card.

Did you understand anything about what sort of limits there were on your use of that? --  There was no limits.

Okay? --  There was no limits.

All right.  Now, was your wife able to use that credit card? --  She used it for fuel.  She used it for emergencies, if she needed something from the chemist for the kids, two children at that stage in ’96 that were under – under four, so – if she needed to go the chemist or something.””

[11] These features, I think, contributed to my own “preliminary and unformed” suggestion as to the appropriateness of Tabtill effectively footing the bill for the various members of the Creswick family having had the luxury of so publicly and expensively ventilating their internecine differences.  Tabtill operated as the family “cash box” for many years.  It had, and continues to have, the underlying financial support of the securities held over a number of Felix’s properties such that, indirectly at least, Felix would be underwriting the costs met by Tabtill by virtue of that ongoing security for its finance facilities.

[12] On reflection, and having had regard to the extensive submissions made by the parties for and against this contention, I am not persuaded that the judicial exercise of the discretion as to costs should be moved by these considerations.  Felix’s ability or capacity (I will not cast it as high as an “entitlement”) to have access to the resources of Tabtill as the family “cash box” terminated with the May Agreement.  This is now not in dispute.  From Felix’s perspective, however, this litigation was not about being bound by the May Agreement.  He ran a positive case that the May Agreement ought be set aside.  Felix’s counterclaim had nothing to do with the May Agreement, but was principally directed to the allegations of forgery by John.  Felix failed on that case.

[13] Counsel for Felix submitted:

“What Felix obtains under the May Agreement is all that he will have for the future.  He will no longer have access to the resources of Tabtill, which is controlled by John, although he contributed very significantly to the building up of the resources of that company over his working life.  By contrast, Tabtill, John and the family group will continue to benefit from Felix’s guarantees and the encumbrances over his properties.”

[14] This submission, however, overlooks the fact that the ineluctable consequences of Felix having entered into the May Agreement were both that he gave up the capacity to draw on Tabtill and that his properties remained in place as securities for Tabtill’s finance facilities.

[15] The case may have been different if Felix’s position at trial had been to oppose the rectification but accept the terms of the May Agreement as signed.  But he did not do that.  His case was to defeat the May Agreement entirely, and on that he was unsuccessful.

[16] The second contention was that the costs order sought by Felix would be appropriate to achieve finality in the litigation.  It was submitted that such an order would “complement” the May Agreement.  Reference was made to the appeals and cross-appeals against the principal judgment which have been filed by the parties, their motives for filing these appeals and (in some respects, at least) the arguments to be advanced on appeal.  I should record that I take no account of any of those matters (even the fact that appeals and cross-appeals have been filed) in determining the question of costs in the principal proceeding.

[17] Otherwise, I see no compelling argument that justifies the suggested costs order as one which is more likely to achieve finality in the litigation than what is generally described as “the usual order”.  It was submitted for Felix that “[c]osts are an important part of the overall result, particularly in the context of a large and expensive case such as this one and should be considered as an integral part of the intended outcome”.  One of the principal reasons why this case was so large, and undoubtedly expensive, was Felix’s pursuit of the forgery counterclaim.  Whilst Felix may have intended, or at least desired, to succeed on that counterclaim, the anticipated outcome in the event of his counterclaim not succeeding would (or certainly ought) have been that he would render himself liable to an adverse costs order.

[18] Thirdly, it was contended for Felix that the order for Tabtill to pay all parties’ costs is appropriate because, in effect, all parties had conducted themselves badly.  Indeed, it was submitted that “it would be something of a travesty if the disentitling, poor and unseemly conduct of the plaintiffs should go unreflected in a costs order or that Felix alone should be left without his costs”.  Felix sought to support this contention with a number of submissions.  First, Felix rehearsed many of the findings on credit I had made about John, Bill and Shayne.  Perhaps not surprisingly, there was little mention of the extensive findings I had made about Felix’s credit.  I should note for completeness that I made no adverse findings about the credit of Bill’s wife, Jane, nor were there any findings about John’s daughter, Jayne, whom Felix had sued, for the simple reasons that she did not give evidence and Felix advanced no case against her at trial.

[19] The fact that I rejected the credibility of John, Bill, Shayne and Felix as witnesses, however, highlighted the need to examine the evidence in the case which came from other witnesses and sources in order to reach my conclusions on the claims and the counterclaims. 

[20] Felix also sought to derive support for this contention from the fact that there had been defaults (at times extended defaults) on the plaintiffs’ side in complying with an interlocutory order made by White J (as she then was) on 28 February 2008 that the plaintiffs make weekly payments of $1,250 to Felix’s solicitor’s trust account.  I agree that these defaults do not reflect favourably on the plaintiffs’ respect for the orders of the Court.

[21] A further argument was advanced to the effect that the evidence at trial disclosed instances of tax evasion, or at least fiscal irregularity, in the affairs of Tabtill, under John’s direction.  No findings about these matters were made in the judgment, and I regard it as inappropriate to visit these contentious issues on a costs application.

[22] In his submissions in response, Felix identified a further instance of what was said to be conduct which disentitled the plaintiffs from obtaining the usual order as to costs and which supported the submission that Tabtill ought pay all parties’ costs.  Counsel for Felix pointed out, as clearly was the case, that I paid considerable regard to the evidence of the bank officers and other independent witnesses in assessing whether Felix had proved the forgery case to the requisite standard (on the Briginshaw test).  Felix submitted, however, that at a mention of the case some ten days before the trial commenced, counsel for the plaintiffs stated to the Court that the only witnesses to be called by that side on the forgery case were John and Bill, and indeed represented to the Court and Felix’s advisers that the other independent witnesses would not be called as part of the plaintiffs’ case. 

[23] The relevant exchange at the directions hearing on 28 August 2009 was as follows:

“MR KELLY:  Your Honour, the thing is: one of the reasons we’d like to see the other side’s – we should know this – witness list first is that given that we are alleging forgery against – particularly against Mr John Creswick, we would expect that in his camp would be those witnesses around him and who work for him and so forth if we could call to vouch for his signature which we say is a forgery.  We have interviewed a lot of witnesses.  They are not really in our camp.  In normal circumstances we would expect our learned friends to be calling them which is why we’d like to see a complete list of their witnesses.  If they don’t call them, then we will have to make decisions about who to call.  But normally we would expect that they would be calling those witnesses.  So, if once we see their list, we’ll let them know precisely who we are calling.

HIS HONOUR:  Yes.  Well-----

MR MORRISON:  Your Honour, I can answer if easily.  Our learned friends should proceed on the basis in terms of the forgery, John and Bill will come and say it’s not them and that will be it.

HIS HONOUR:  That will be it.  Well, there you go, there’s the answer to your question, Mr Kelly.

MR KELLY:  Well, it’s a good answer.   I’m happy with it.”

[24] It was submitted that if only John and Bill had been called on their side of the record to give evidence in the forgery case, then their defence to the forgery claims would have failed because the only independent lay witnesses who would have given evidence would have been those called in Felix’s case.  Counsel for Felix pointed to various communications from Felix’s solicitors to the other side in the days prior to trial which reinforced the fact that they were of the understanding that only John and Bill were to be called on that side in relation to the forgery case.

[25] Felix submitted that this situation was compounded by the fact that John’s side had obtained the issuing of a number of subpoenas in blank.   These subpoenas were used, or were obtained to be used, to compel the attendance of, inter alia, a number of witnesses on the forgery case.  It was submitted that an examination of the correspondence which was sent to the Registry to seek the issuing of the subpoenas in blank revealed that the information provided to the Registry was wrong or misleading.

[26] In submissions in response, John’s counsel explained the statement which had been made at the directions hearing as follows:

“38.Mr Kelly SC said:  “If they don’t call them, then we will have to make decisions about who to call.”  Queen’s Counsel for the Plaintiffs responded:  “Our learned friends should proceed on the basis in terms of the forgery, John and Bill will come and say it’s not them and that will be it”.  What was being said was:  if you want to know who you might have to call, as opposed to cross-examine, prepare your case on the basis that you might have to call all attesting witnesses.  In other words, it means “prepare your case as if all of the witnesses need to be called in your case, don’t rely on us to call them so that you can cross-examine them.”

[27] To the extent that the parties were at cross purposes, that clearly arose from the statement that “John and Bill will come and say its not them and that will be it”.  But even if Felix’s side understood the words “that will be it” to mean that the only witnesses on the forgery issue to be called on John’s side would be John and Bill, it needs to be recalled that this related to a major issue in the case on which Felix undoubtedly bore the onus of proof and on which his proof needed to satisfy the Briginshaw standard.

[28] It was clear that Felix’s side had “interviewed a lot of witnesses” who were “not really in [Felix’s] camp”.  And even if Felix’s side had understood the words in the way contended for, they were certainly disabused of that notion on the first day of the trial when counsel for John’s side opened that many witnesses to the disputed FC signature would be called.  Felix’s side did not object at that point, nor was there any objection when those witnesses were ultimately called.  Given the course of the evidence at the hearing, the first of these witnesses was not called until the seventh day of the trial.

[29] Moreover, the fact that these witnesses were called by John’s side gave Felix’s side (which, I note again, bore the onus of proof on this issue) the clear forensic advantage of being able to cross-examine these witnesses.

[30] It needs to be remembered that this is relied on by Felix as conduct by John and his advisers which was “so bad” as to persuade me to exercise the discretion on costs other than in accordance with the general rule.  Inherent in Felix’s submissions on this point is the notion that if Felix’s advisers had been aware that John’s side were going to call these witnesses they would have run Felix’s case differently.  Given that:

(a)Felix bore the onus of proof on the forgery issue;

(b)Felix’s side had interviewed a lot of the witnesses;

(c)Felix’s side appreciated that many of these witnesses were in the other side’s camp;

(d)Felix’s side had been provided, well prior to trial, with an affidavit by one of the witnesses (Mr Porteous) and an affidavit by a solicitor deposing, inter alia, to the evidence which would be adduced from a number of the other witnesses, two of whom were called at trial (Mr Magee and Mr Kurbatoff);

(e)Felix’s side made no objection when the plaintiffs’ counsel opened the evidence of these witnesses;

(f)No objection was taken when any of the witnesses was called;

(g)Felix’s side had the forensic advantage of cross-examining these witnesses,

it is difficult to see how that proposition can stand. 

[31] To the extent that it is now suggested that the outcome might have been different if these witnesses had not been called, it is sufficient to say:

(a)They were called and gave evidence without objection;  and

(b)It would be completely inappropriate for me to speculate on what might have been the outcome if different evidence had been before me.

[32] As to the further submission concerning the circumstances in which the subpoenas were issued in blank, it is sufficient for me to say that John’s solicitor has filed affidavits explaining in some detail the circumstances which led him in each instance to request that the Registry issue the subpoena in blank.  I am satisfied with his explanations, and would not be prepared to find that there was anything untoward about the requests for the subpoenas to be issued in that way. 

[33] The fourth contention advanced by Felix to support the making of an order that Tabtill pay all parties’ costs was that Felix had contributed significantly to the financial fortunes of the plaintiffs and of Tabtill.  Counsel pointed to Felix’s properties which had been used as security for borrowings over the years and the fact that Felix had given personal guarantees over the years.  It should be recalled, however, that Felix also enjoyed substantial financial benefits from these arrangements over the years.  The dispute between (principally) John and Felix as to the ongoing nature of their financial interdependence was settled with the signing of the May Agreement.  In this litigation Felix sought unsuccessfully to resile from that settlement.  He sought, unsuccessfully, to unwind many of the financial transactions on the basis of forgery.  It is too late for him now to protest that the May Agreement is an insufficient settlement to reflect his past and ongoing financial support for the plaintiffs – the May Agreement was the deal he negotiated and executed.

[34] Counsel for Felix made extensive submissions under this heading about instances of tax evasion disclosed by the evidence.  As noted above, however, no findings were made about these matters in the principal judgment, and I regard it as quite inappropriate to venture into these controversial issues on a costs argument. 

[35] The fifth contention is that Felix is worse off as a result of the assistance he has provided.  It was submitted that “the result of the case is to leave Felix in a significantly, relatively adverse position compared with that he would have been in if he had not made the properties owned by him available to the plaintiffs and Tabtill” and that “[h]ad Felix not allowed those properties to be used as security for loans to Tabtill and the other plaintiffs, he could have used them to raise funds for his own investments and business enterprises”.

[36] The second point is purely speculative, and does not reflect what actually occurred.  The first point is answered by noting that the result of the case, i.e. specific performance of the May Agreement, leaves Felix in the position he bargained to achieve in May 2007.

[37] The sixth contention advanced by Felix to justify an order that costs be paid by Tabtill was that the plaintiffs did not succeed on significant parts of the claim.  Clearly enough, this has nothing to do with Felix’s unsuccessful counterclaim.  Counsel for Felix, however, submitted (quite properly, in my view) that the plaintiffs’ claim for rectification of the May Agreement failed completely, and further submitted:

“97.The enforcement of the May Agreement in its unrectified state, did dispose of the claim by Tabtill and John for a declaration that Felix’s interest in certain properties was held on trust for John or Tabtill and in the case of 35 Sentinel Court, Bill and Jane.  This is so due to the critical finding of the Court, which has been referred to above, at paragraph [361] of the reasons.

98.But it is necessary to emphasise, as relevant to costs, that those claims were litigated at great length and great expense, including the marshalling of expensive accounting evidence by each side.  They were in fact litigated right through until the end of the trial.  The exchange with Senior Counsel of the Plaintiffs upon which the finding in paragraph [361] of the reasons was based only occurred on the last day of the hearing.”

[38] Counsel for Felix then went on to mount extensive arguments as to why, in any event, the plaintiffs’ alternative claims were doomed to fail.  I considered it unnecessary to adjudicate on those matters in the principal judgment, and my reasons for declining to do so appear in that judgment.  I consider it quite inappropriate for me to revisit these matters, almost by way of a second bite of the cherry, and adjudicate on them now in a costs argument.

[39] Each side sought to quantify the extent to which John’s side had succeeded or failed (depending on the perspective).  Counsel for Felix argued, for example:

“147.The above discussion indicates the numerous respects in which Tabtill and the plaintiffs were unsuccessful in their claims or would inevitably have had to have been based upon the Court’s findings as to the dishonesty of the plaintiffs’ witnesses.

148.A summary is that the plaintiffs failed in claims made in paragraphs 1, 7-10, 12-16 and 18-24 of the prayer for relief of the fourth amended statement of claim.

149.Paragraphs 5, 11, 17 and 25 claimed costs which are still to be determined by the Court.

150.In terms of the allegations in the statement of claim the plaintiffs made allegations in the following paragraphs supporting claims which failed or inevitably would have failed if the Court had had to determine them:

(a)paragraphs 18 to 20 and 21(a) – the failed rectification claim;

(b)paragraphs 25 to 93 – allegations relating to the trust claims which either failed or which inevitably had to fail;

(c)paragraphs 94 to 95 – allegations relating to the failed restitutionary claim.

151.An indication of the large and expensive contribution which these failed allegations made to the litigation is given by reference to the facts that:

(a)the fourth amended statement of claim had 16 schedules appended to it;

(b)these schedules all dealt with details of allegations concerning the trust claims.

152.An indication as to how intimately the trust claims were both made for the benefit of Tabtill and also dependent upon evidence which the Court rejected as dishonest is clearly given by reference to paragraphs 31 to 41 of the fourth amended statement of claim.  All of this constructive trust case, which Tabtill prosecuted, depended completely upon John’s evidence about those matters, many of which concerned alleged conversations and states of mind, being accepted.”

[40] Counsel for John’s side, on the other hand, argued that the plaintiffs did not protract the proceeding, and submitted:

“56.... The only points on which the Plaintiffs did not succeed – the rectification of the agreement and the constructive trust – occupied a minute portion of the 4 weeks of evidence.  Given, in any event, that the constructive trust claim was a true alternative, it is submitted that there is no basis for a finding that it was unnecessary.

57.A dissection of the witnesses called at trial on the various points may assist:

(a)18 witnesses were called on Felix’s failed claims:  West, Heath, Marheine, Porteous, Faust, Zeller, Kurbatoff, McMahon, Ashton, McGhee, Smeal, Stephens, Moore, Flynn, Spiro, Foote, Taylor and Zeigenfusz;

(b)5 witnesses were called on Felix’s failed defence of the May Agreement:  Banjanin, Mott, Colville and the two doctors, Apel and Reddan (via her report);

(c)on the Plaintiff’s side of the record, the four individual plaintiffs – John, Bill, Shayne and Jane – were called, and only 2 sets of non-party witnesses:  the accountants (although the bulk of their work was on the reconstruction of accounts in relation to the failed partnership claims).”

[41] These sorts of dissections are not, however, particularly helpful for present purposes.  On a qualitative, rather than a quantitative, approach, it is clear (and so much is apparent from the principal judgment) that much of the trial turned on issues of credit concerning John, Felix, Bill and Shayne.  Their credit impacted on, and was relevant to, the principal claim (for rectification of the May Agreement) and the principal counterclaim (the forgery allegations).  Most of the evidence otherwise called in the case also went principally to these primary cases.  The accounting evidence was directed to both John’s alternative trust cases (which I found it unnecessary to determine as a consequence of the concession recorded in the principal judgment at [361]) and Felix’s cases on property and business partnerships (on which he was not successful).

[42] That being said, I think it also accurate to say that neither side obtained the result at trial which they hoped for. 

[43] The final contention advanced by Felix was founded in Bill’s conduct in making the offer described in the principal judgment at [78] – [82].  The submission was that, Bill having been prepared to make an offer which (if accepted by the parties concerned) would have left Felix completely adrift in the litigation, it is just that there now be a costs order which reflects a similar outcome on John, Bill and Tabtill.   It was submitted that John and Bill “can hardly be heard to say that the costs order sought by Felix is unfair when they effectively proposed paying all of the costs of Felix’s advisers in order to leave their father in a vulnerable and defenceless position”.

[44] It is apparent from the principal judgment that I took the fact that Bill had made this offer in these terms into account when finding that Bill’s interests coincided with John, that Bill was in John’s camp before and after the signing of the May Agreement, and that Bill harboured deep hostility towards Felix in this litigation.  This, however, was only one of many instances of hostility between the parties which are recorded in the principal judgment or canvassed in evidence in the trial.  As I said at [7] of the principal judgment, the ferocity with which this case was fought was such that each of Felix and John went to extreme lengths to traduce one another’s reputation.  Bill was part of this mix.  In fact, however, as is recorded in the principal judgment, I made adverse findings about each of John, Bill and Felix, including about their respective conduct in the course of the litigation.  There is nothing that elevates this instance of unmeritorious conduct by Bill above, for example, Felix’s denials of having given certain instructions to his lawyers in the course of the litigation.[8]

[45] Having considered each of these contentions advanced on behalf of Felix, I am not satisfied that it would be a proper judicial exercise of the wide discretion on costs for me to make the order against Tabtill sought by Felix. 

[46] I turn, now, to consider the costs of the claim and of the counterclaim.

[47] In respect of the claim, the plaintiffs have sought their costs on the standard basis.  Their submission, in short, is that they enjoyed success on the claim, and costs ought follow the event.  Their submission in that respect, however, is not completely accurate.  The primary relief sought was for rectification of the May Agreement and for specific performance of the agreement as rectified.  John’s side was unsuccessful on that claim.  The “lesser” position of urging for the May Agreement, in the terms as executed, was barely part of the case advanced by John’s side, and was inconsistent with at least part of the alternative cases advanced on behalf of the plaintiffs.  It was only on the very last day of oral argument at the trial that John’s counsel accepted the position described in the principal judgment at [361].  This position had not previously formed any part of the plaintiffs’ case. 

[48] At best, therefore, it seems to me that the plaintiffs can only be described as having enjoyed some partial success on the claim.  I would not be prepared to find, however, that it was inappropriate for the plaintiffs to prepare and advance the alternative cases concerning constructive and resulting trusts.  Felix was, after all, seeking to have the May Agreement set aside.  If he had been successful in that, then it would have been necessary to examine those alternative cases.  In any event, the evidence relevant to those alternative cases (on the plaintiffs’ side, some of John and Bill’s evidence, and part of the expert accounting evidence) did not, in the grand scheme of this litigious saga, expand the scope of the evidence at trial to an inappropriate or inordinate degree.

[49] To reflect the fact that John’s side enjoyed only partial success on the claim, I consider that the appropriate order would be for the defendant to pay 75 per cent of the plaintiffs’ costs, including any reserved costs, of and incidental to the claim.

[50] As to the counterclaim, it is clear that Felix, who was completely unsuccessful, ought pay the costs of the counterclaim.  The only question is whether, and to what extent, he ought pay those costs on the indemnity basis.

[51] As noted above, John’s side submitted that these costs ought be paid on the indemnity basis.  It is appropriate in this context to recall the observations of Gaudron and Gummow JJ in Oshlack v Richmond River Council:[9]

“It may be true in a general sense that costs orders are not made to punish an unsuccessful party.  However, in the particular circumstance of a case involving some relevant delinquency on the part of the unsuccessful party, an order is made not for party and party costs but for costs on a “solicitor and client” basis or on an indemnity basis.  The result is more fully or adequately to compensate the successful party to the disadvantage of what otherwise would have been the position of the unsuccessful party in the absence of such delinquency on its part.”

[52] The first ground advanced by John in this regard was that numerous offers had been made to Felix to settle the claim and counterclaim.  It was accepted that none of these were formal offers under Chapter 9 Part 5 of the UCPR.  Some of them, however, were expressed to be “without prejudice save as to costs”, i.e. so-called “Calderbank” offers. 

[53] The offers to settle relied on by John’s side were:

(a)letter Mott to Hopgood Ganim dated 28 May 2007;

(b)letter Mott to Hopgood Ganim dated 8 October 2007;

(c)letter Mott to Hopgood Ganim dated 24 December 2007;

(d)letter DLA Phillips Fox to Hopgood Ganim dated 15 January 2008;

(e)letter DLA Phillips Fox to Hopgood Ganim dated 17 January 2008;

(f)letter DLA Phillips Fox to Hopgood Ganim dated 22 January 2008;

(g)letter DLA Phillips Fox to Hopgood Ganim dated 12 February 2008;

(h)“Calderbank offer” by plaitiffs dated 18 April 2008;

(i)“Formal offer”[10] of 11 May 2009;

(j)“Calderbank offer” of 23 September 2009.

[54] They also referred to a number of offers which Felix had made, to seek particularly to make a point that, in contrast to reasonable offers being made by John’s side, Felix’s offers were “out of the ball park”. 

[55] In the submissions put before me, each side conducted a close analysis of each of these offers – John’s side devoted some 14 pages of submissions to this, while Felix’s submissions on this topic ran to 22 pages. 

[56] When considering these offers, it is appropriate to recall the following observations (omitting citations), with which I respectfully agree, by Applegarth J in Fick v Groves (No 2):[11]

“[31]The making of an offer to settle which offers a substantial benefit to a plaintiff who ultimately fails at trial does not necessarily entitle the defendant making the offer to indemnity costs.  In some cases offers of compromise are made in circumstances in which the plaintiff is not in a position t properly assess the strength of the defendant’s case.  I follow the principles applied in this regard by the Chief Justice in Joelco Pty Ltd v Balance Securities Limited, by A Lyons J in Palmer & Anor v Finnigan and by Dodds-Streeton J in Nolan v Nolan (No. 2) who stated:

‘I consider that a Calderbank letter is but one factor relevant to the discretionary determination of costs.  A Calderbank offer is a significant factor in favour of indemnity costs but does not dictate them or require an order for indemnity costs as a matter of routine.  The reasonableness of the offeree in rejecting a Calderbank offer is one important factor in determining the weight to be attributed to it.  The degree of specificity of reasoning expressed in the letter, the stage at which the letter is received and the content of and response to the offer may all be relevant to the reasonableness.’”

[57] Like Applegarth J, I would also respectfully adopt the observations of the Victorian Court of Appeal in Hazeldene’s Chicken Farm v Victorian WorkCover Authority (No 2):[12]

“25The discretion with respect to costs must, like every other discretion, be exercised taking into account all relevant considerations and ignoring all irrelevant considerations.  It is neither possible nor desirable to give an exhaustive list of relevant circumstances.  At the same time, a court considering a submission that the rejection of a Calderbank offer was unreasonable should ordinarily have regard at least to the following matters:

(a)the stage of the proceeding at which the offer was received;

(b)the time allowed to the offeree to consider the offer;

(c)the extent of the compromise offered;

(d)the offeree’s prospects of success, assessed as at the date of the offer;

(e)the clarity with which the terms of the offer were  expressed;

(f)whether the offer foreshadowed an application for an indemnity costs in the event of the offeree’s rejecting it.

26It has been argued on occasion that the maker of a Calderbank offer should not be entitled to costs unless the offer sets out, with some reasonable specificity, the basis for the offeror’s contention that the offeree should accept the compromise – for example, because the offeree’s case was hopeless or because the offeree had no reasonable prospects of doing better in the proceeding than was being offered in advance.

27Once again, we think it neither necessary nor desirable to lay down any general rule in this regard.  We agree with what Redlich J said in OCBC, as follows:

Any attempt to prescribe the reasoning which must accompany [a Calderbank] offer should be resisted.   Whether there is a need for the offeror to descend to specificity as to why the offer should be accepted must depend upon a consideration of all of the circumstances existing at the time of the offer.  The extent to which the weakness of a party’s position is exposed through the pleadings, affidavits and the various communications between the parties during the course of the litigation may bear upon the significance of the absence of specificity in the informal offer.

28As we said at the outset, the unreasonable refusal of an offer of compromise is, by itself, a proper ground for the award of indemnity costs or – in the present case – the award of solicitor-client costs.  It follows that it is not necessary for the applicant for such an order to establish matters which might be relevant to other, well-recognised, grounds for indemnity costs.  Once again we would adopt what Redlich J said in OCBC, as follows:

It is not necessary to establish misconduct by the offeree before the rejection of the offer can be viewed as unreasonable.  Lack of merit in the way a party had conducted its case is not a prerequisite for the making of an indemnity costs order [on this ground].

29Nor is it necessary for the applicant offeror to show that the offeree acted with ‘wilful disregard of known facts or clearly established law’, or that it acted with ‘high-handed presumption’.  We agree with Redlich J that such conduct is not a prerequisite for a finding that the rejection of a Calderbank offer was unreasonable.”

[58] It is unnecessary to set out the detail of the terms of the various offers on which submissions were made.  Some of the offers did not relate to settlement of the proceeding as a whole, but only to discreet disputes, e.g. the dispute concerning Felix’s lodgement of a caveat of 35 Sentinel Court.  An initial letter written by Mott on 28 May 2007 was clearly not an offer to compromise the proceeding – at best it was an offer of early settlement of the May Agreement.

[59] Particular reliance for present purposes was placed by John’s side on the numerous offers of settlement made to Felix commencing with a letter of offer on 18 April 2008.  In summary, by that letter the plaintiffs offered to settle the proceeding on the following basis:

1. The plaintiffs pay $1,000,000 to Felix within 60 days of acceptance;
2. The plaintiffs pay $1,000,000 towards the purchase of a residence for Felix and Marcia;
3. The plaintiffs pay $4,000 per week for the remainder of Felix’s life, the first two years by lump sum payments of $208,000 each and then $4,000 per week or by lump sums as nominated by the plaintiffs and accepted by Felix;
4. They pay Felix’s medical expenses, including palliative care, aged care and private health insurance expenses;
5. They pay Marcia’s private health insurance and palliative care expenses;
6. On Felix’s death, they pay Marcia $4,000 per week for three further years ‘to the total of $624,000’;
7. They will give Felix a specific Jaguar motor vehicle;
8. They will relinquish any claim to Office Lane;
9. Felix will transfer to the plaintiffs:

(i)905 Logan Road;

(ii)8-10 Crump Street;

(iii)His one third interest in 503 Logan Road;

(iv)35 Sentinel Court;

(j)That there be appropriate releases between the parties. The offer did not mention costs specifically, but contained a general release from claims.  The plaintiffs said that this was, therefore, an offer on the basis that each side bore its own costs.

[60] Counsel for John’s side then sought to engage in a comparative analysis of that offer with the position which, it was contended, flows as a consequence of the judgment.  Counsel ascribed values to the various elements of the offer and sought to contrast those with the values of properties which the respective parties would have held under the May Agreement (as performed) to justify the proposition that Felix would have been better off accepting the offer made on 18 April 2008 than he was (and is) under the May Agreement.

[61] It is not at all clear, however, that the comparative analysis relied on by John’s side is either accurate or appropriate.  In the first place, it seems to me to suffer from a fundamental defect of ascribing values to interests in properties (both under the May Agreement and under the terms of the offer) when there was simply no independent evidence put before me to justify any of those valuations.

[62] Secondly, the comparative exercise focuses on what would pass (in dollar terms) from John’s side to Felix under the May Agreement and the offer to settle respectively, but fails to take account of the actual position in which Felix would find himself under those two scenarios, e.g. it fails to give Felix credit for the value of the properties (such as 8-10 Crump Street) which he retains on specific performance of the May Agreement.  Nor, in the same vein, does the comparison take account of the fact that Felix defeated the claims in respect of the Office Lane property and the money claim for some $141,000.

[63] Without setting out the details of the subsequent Calderbank offers, it is sufficient to say that John’s side sought to advance similar comparative analyses, but each of those was, in my view, attended by similar difficulties.

[64] Having reviewed all of the offers relied on by John’s side, I conclude that it has not been demonstrated that any of those offers would have provided to Felix an outcome more favourable than has been imposed on the parties as a consequence of the judgment.  Nor do I consider that it has been demonstrated that Felix acted unreasonably in not accepting these offers.  Similarly, it is not at all clear to me, despite the submissions advanced on behalf of the plaintiffs, that Felix’s position as a consequence of the judgment is so markedly different from that as would have been the case if he had accepted any of those offers and I am unable to conclude that he acted unreasonably in not accepting any of those offers.  I would, therefore, not be inclined to use these offers to justify an order for costs on the indemnity basis.

[65] The second basis relied on by John’s side to seek costs of the counterclaim on an indemnity basis was an allegation that Felix acted unreasonably in the prosecution of the counterclaim.  These submissions focused on the forgery claims made against Bill and Jayne. 

[66] In respect of the forgery claim against Bill, counsel for John’s side pointed out that an allegation of forgery by Bill first appeared in the second further amended defence and counterclaim filed on 31 October 2008, in which Felix alleged that the contracts of sale for various of the Wellington Point lots were forged by John or by Bill or by a person at the direction of John or Bill.  Subsequently, on 19 March 2009, Felix’s side obtained the report from the handwriting expert Mr Heath[13] in which Mr Heath discounted Bill as the possible author of the impugned signatures.  It was submitted that it would not be unreasonable to assume that, on receipt of such evidence and in the absence of evidence from any other witness, Felix would withdraw the allegation of forgery against Bill.  Instead, however, on 21 July 2009 Felix filed and served the third amended defence and counterclaim, which, it was submitted, not only did not remove the allegation that Bill might have forged the signature on the Wellington Point contracts, it added 37 new claims of forgery against Bill.  It was submitted that this conduct was so perverse that it ought sound in costs against Felix on the indemnity basis.

[67] Counsel for Felix disputed the analysis of the pleadings, noting that, by the third amended defence and counterclaim, Felix did in fact delete the allegations against Bill in respect of the contracts for the Wellington Point properties, and also removed an allegation in respect of a particular impugned security.  It was also said that, in the third amended defence and counterclaim, Felix did not make an allegation of forgery against Bill in relation to every instance of the use of the disputed FC signature. 

[68] It was submitted for Felix that, notwithstanding the receipt of the report from Mr Heath, Felix’s side did not act unreasonably in continuing to pursue the allegation of forgery against Bill, pointing to the existence of documents which might have been considered to have implicated Bill and the prospect of leading evidence from independent witnesses to prove up that case.  In any event, by the time of trial Felix had withdrawn the allegation that Bill was the source of the disputed FC signatures.  This was done on 4 September 2009, in a response to a request from the solicitors for the plaintiff made on 3 September 2009.  There was certainly no case run at trial seeking to identify Bill as an author of the disputed FC signatures. 

[69] In all the circumstances, I am disinclined to find that Felix’s side acted unreasonably in respect of ventilation of the forgery case against Bill.  These allegations were, in fact, abandoned prior to the trial.  I accept the submission that, in practical terms, there could have been no additional costs incurred as a result of the allegation in the pleadings that Bill was a possible source of the disputed FC signatures.  It is clear that all of the preparations necessary for John’s side to defend against the allegation that Bill was the source of the disputed FC signatures would have needed to be undertaken in order to defend against the allegation that John was the source of those signatures.

[70] For completeness, I should also observe that this was not a case in which there was no evidence on which Felix could found the forgery case against John.  Felix’s case at trial failed not because of an absence of evidence, but because I held (for the reasons set out at length in the principal judgment) that Felix had not met the standard of proof necessary to sustain the allegations, having regard to the seriousness of, and consequence of, the allegations.  As I said at [253]:

“The evidence in this case provided some support for the proposition that the disputed FC signatures were not written by Felix.  Having considered the evidence as a whole, however, I consider that I cannot be satisfied to the requisite standard that Felix has proved that John forged the disputed FC signatures.”

[71] The second matter referred to by John’s side was the fact that Jayne had been joined to the proceeding as a defendant by counterclaim on the basis that she received “fraudulent benefits” in respect of the “property partnership opportunities” and Piermont Place without providing any consideration. 

[72] In fact, Felix not only ran no case against Jayne at trial, Felix protested vehemently in evidence that he had never given instructions for Jayne to be sued.[14]

[73] It was submitted on behalf of Felix at trial that his claim against Jayne was based on her common ownership with him of 17 Piermont Place, and that his claim was on the basis that she had received the net proceeds of sale of the property.  It was submitted that at the time Felix made his claim against Jayne, he had no information, and no disclosure had been made to him, from which he could trace the proceeds of sale of the property.  It was said that when this information was eventually provided to him, he was able to trace the net proceeds of sale into Bill’s hands.  The submission, in short, was that Jayne was sued because Felix did not know where the proceeds of sale of the Piermont Place property had gone and that if John’s side had made proper disclosure, it would have been unnecessary to sue Jayne.

[74] Be all that as it may, the simple fact of the matter is that, notwithstanding Felix’s denial in evidence, he instituted a claim in fraud against Jayne.  That is a very serious thing to do, and has serious consequences if the allegation is unsubstantiated.  At the very least, when it became apparent that the claim in fraud against Jayne could not be sustained, application should have been made for leave to discontinue the proceeding against her.  As it transpired, and despite the fact that no positive case was advanced against her at the trial, the application for discontinuance was not made until the closing submissions on behalf of Felix.

[75] It may be a moot point, or an interesting task for the costs assessor, to determine whether, as a matter of fact, costs were separately incurred for and on behalf of Jayne in defending that claim.  That will be a matter for examination by the costs assessor.  That will not, however, deter me from making an appropriate order, which in my view clearly is that Felix should pay Jayne’s costs of the counterclaim against her on the indemnity basis.

[76] Apart from Jayne’s costs, however, I am not persuaded that the order for costs against Felix in respect of the counterclaim should be on the indemnity basis.

[77] There remains for consideration the costs associated with an interlocutory application for disclosure which was brought in the course of the parties exchanging submissions on costs.  One of the issues that arose in connection with the question whether a costs order ought be made against Tabtill was whether, to the extent that it was categorised as a “cash box” for the family, Tabtill had in fact paid any of the legal expenses of the plaintiffs in connection with the proceeding.  It was said that it was relevant for the Court to know whether Tabtill had paid any of the plaintiffs’ legal expenses because if it had this would lend support to the notion that it was appropriate for Tabtill to pay all parties’ costs and would undermine a submission made by the plaintiffs that the family understood that Tabtill’s funds were not to be used to pay legal expenses.  There was correspondence between the solicitors by which Felix’s solicitors sought disclosure of documents that reveal the party or parties responsible for the plaintiffs’ legal costs.  The plaintiffs’ advisers resisted disclosure of those documents, which resulted in Felix filing an application on 29 October 2010 seeking disclosure of documents that stated or recorded payments and/or the provision of security by Tabtill of or in relation to the plaintiffs’ legal costs and disbursements, and copies of the client engagement letters signed by each of the plaintiffs and their solicitors.  After further correspondence between the solicitors, documentation was provided by the plaintiffs’ solicitors to Felix’s solicitors on 10 November 2010.  The application for disclosure was dismissed and the costs of that application were reserved.

[78] Felix now submits that the costs of that application should be paid by the plaintiffs on the indemnity basis.  It was submitted that there is no doubt that the plaintiffs were obliged to disclose the material which they ultimately disclosed.  An assertion made by the plaintiffs’ solicitors in correspondence that the client engagement letter and fee notes were subject to legal professional privilege were said to be unsustainable in law.  It was said that the costs of the application for disclosure would have been avoided if the plaintiffs had complied with their obligation of disclosure when requested to do so on 20 October 2010.

[79] Legal professional privilege attaches to confidential communications between a solicitor and the client for the dominant purpose of the solicitor providing or the client receiving legal advice.[15]

[80] Just as it has been held that legal professional privilege would only attach to a solicitor’s trust account ledgers on the rare occasions when those ledgers revealed communications between a solicitor and the client for professional purposes,[16] it is clear that a client engagement letter and the fee notes could be subject to legal professional privilege only if, and to the extent, that they disclose the content of privileged communications.  The identity of a client is not privileged,[17] and the fact that the retainer letter and fee notes may have disclosed the identity of the clients would not alone have rendered them subject to legal professional privilege.

[81] The fact that the plaintiffs’ advisers may, however, have initially resisted production of the documents on an erroneous understanding as to the law of legal professional privilege does not warrant the making of an order for costs on an indemnity basis.  Once the documents were provided, the application was able to be dismissed.  It seems to me, therefore, that the appropriate order in the circumstances is for the plaintiffs to pay Felix’s costs of and incidental to the application filed 29 October 2010 on the standard basis.

[82] Finally, and for completeness, I should record that I received and considered the following submissions from the parties:

(a)plaintiffs’ submissions on costs (44 pages, plus annexures);

(b)Felix’s submissions on costs (34 pages);

(c)plaintiffs’ submissions in reply (22 pages);

(d)Felix’s submissions in response (73 pages);

(e)plaintiffs’ further submissions in response (23 pages);

(f)Felix’s supplementary submissions (8 pages);

(g)plaintiffs’ final submissions (2 pages);

(h)Felix’s final submissions (7 pages).

In addition, the parties filed numerous affidavits by the respective solicitors on the question of costs which, together with exhibits to the affidavits, amounted to several hundred pages of material.

[83] In short, I do not think that the parties can complain of not having said everything they want (or could possibly want) to say in relation to the present costs applications.

[84] There will be the following orders:

1.The plaintiffs shall pay the defendant’s costs of and incidental to the application filed 29 October 2010 on the standard basis;

2.The plaintiff by counterclaim shall pay the costs of the tenth defendant by counterclaim of and incidental to defending the counterclaim against the tenth defendant by counterclaim, such costs to be paid on the indemnity basis;

3.Otherwise:

(a)The defendant shall pay 75 per cent of the plaintiffs’ costs of the claim, including any reserved costs, on the standard basis;

(b)The plaintiff by counterclaim shall pay the costs, including any reserved costs, of the first, second, third, fourth, fifth, sixth, seventh, eighth and ninth defendants by counterclaim, to be assessed on the standard basis.