Creswick v Creswick - [2010] QSC 339

SUPREME COURT OF QUEENSLAND

CITATION:

Creswick and Ors v Creswick [2010] QSC 339

PARTIES:

JOHN FRANCIS CRESWICK
(first plaintiff/first defendant by counterclaim)
and
WILLIAM GERARD CRESWICK
(second plaintiff/second defendant by counterclaim)
and
SHAYNE MARISE CRESWICK
(third plaintiff/third defendant by counterclaim)
and
JANE VERONICA CRESWICK
(fourth plaintiff/fourth defendant by counterclaim)
and
TABTILL PTY LTD
ACN 010 408 545
AS TRUSTEE FOR THE JOHN CRESWICK FAMILY TRUST
(fifth plaintiff)
and
TABTILL PTY LTD
ACN 010 408 545
(fifth defendant by counterclaim)
and
TABTILL NO. 2 PTY LTD
ACN 098 424 741
(sixth defendant by counterclaim)
and
TABTILL NO. 3 PTY LTD
ACN 106 070 948
(seventh defendant by counterclaim)
and
TABTILL NO. 4 PTY LTD
ACN 106 071 096
(eighth defendant by counterclaim)
and
T2 PROJECTS PTY LTD
ACN 109 792 707
(ninth defendant by counterclaim)
and
JAYNE EMMA CRESWICK
(tenth defendant by counterclaim)

v

FELIX ANTHONY CRESWICK
(defendant/plaintiff by counterclaim)

FILE NO:

BS 10963 of 2007

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

13 September 2010

DELIVERED AT:

Brisbane

HEARING DATE:

7 September 2009 – 11 September 2009;
14 September 2009 – 18 September 2009;
21 September 2009 – 25 September 2009;
28 September 2009 – 2 October 2009;
8 October 2009; and further submissions on 6 November 2009 and 9 November 2009.

JUDGE:

Daubney J

ORDER:

1.       That the agreement made between the first, second, third and fourth plaintiffs and the defendant dated 26 May 2007 be specifically performed and carried into effect.

2.       That counsel for the parties bring in such orders as may be required to give effect to the decree of specific performance, including but not limited to such orders as may be required for the removal of caveats.

3.       That the defendant has liberty to apply to me for permanent injunctive relief against the first plaintiff and the third plaintiff in respect of the defendant’s occupation of the property situated at 11 Seahaven Court, Raby Bay for the remainder of his life.

4.        The plaintiffs’ claim is otherwise dismissed.

5.       The defendant’s counterclaim is otherwise dismissed.

6.        I will hear the parties as to costs.

CATCHWORDS:

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – PARTIES – GENERAL PRINCIPLES – FORGERY – where the defendant counterclaims that the first plaintiff has forged his signature on a great number of financial documents, contracts for the sale of land and real property transfers – where the disputed signature appeared on many documents, many of which were of benefit only to the plaintiffs and the plaintiffs’ companies - where the first plaintiff denied signing the disputed signature on the documents – where evidence was led by forensic document examiners and many persons who were said to have witnessed the signatures – whether the defendant has proved that the first plaintiff has forged his signature

EQUITY – GENERAL PRINCIPLES – UNCONSCIONABILITY, UNCONSCIONABLE DEALINGS AND OTHER FORMS OF EQUITABLE FRAUD – GENERALLY – where the first, second, third and fourth plaintiffs and the defendant entered into an agreement following the break down of their business and personal relationships – where the first plaintiff and the second plaintiff are the sons of the defendant – where the defendant contends that the agreement ought be set aside because it was unconscientious dealing– where the defendant contends that he was in a position of special disadvantage in relation to the first plaintiff by reason of the nature of their relationship, his physical and mental health, his isolation from his family and an alleged improvidence of the agreement from his perspective – whether the agreement should be set aside on the basis of unconscientious dealing

EQUITY – GENERAL PRINCIPLES – UNDUE INFLUENCE AND DURESS – PRESUMPTION OF UNDUE INFLUENCE FROM RELATIONSHIP OF PARTIES – GENERALLY – where the first, second, third and fourth plaintiffs and the defendant entered into an agreement following the break down of their business and personal relationships – where the first plaintiff and the second plaintiff are the sons of the defendant – where the defendant contends that the agreement ought be set aside because he was subject to undue influence by the first plaintiff – where the relationship between the parties, that of son and father, does not fall in an established category giving rise to a presumption of undue influence – whether the first plaintiff has made improper use of an ascendancy over the defendant to obtain a benefit – whether the agreement should be set aside on the basis of undue influence

EQUITY – GENERAL PRINCIPLES – MISTAKE – EQUITABLE REMEDIES – RECTIFICATION – EVIDENCE – where the first, second, third and fourth plaintiffs and the defendant entered into an agreement following the break down of their business and personal relationships – where this agreement provided for the transfer of certain properties – where the agreement referred to the “Logan Road properties” – where the plaintiffs contend that agreement ought to be rectified so that the reference to the “Logan Road properties” be read as including reference to the “Crump Street properties” – where the only evidence in support of this claim was from the first and second plaintiffs – where the plaintiffs’ credibility was in doubt – where there was no independent evidence to corroborate this – whether the agreement ought to be rectified

EVIDENCE – BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE – GENERALLY – CREDIBILITY AND WEIGHT – PARTY'S FAILURE TO GIVE OR CALL EVIDENCE – where the partner of the defendant was not called to give evidence – where counsel for the plaintiffs submitted that there were a number of areas of the defendant’s case where it might reasonably have been expected that the defendant’s partner could have, and should have, given evidence – where counsel for the defendant submitted that this witness could not have given admissible evidence relevant to issues in the trial, that her evidence would have been collateral and would have gone only to credit – whether a Jones v Dunkel inference that this witness could give no evidence that would assist the defendant in respect of these areas should be made in the circumstances

Evidence Act 1977 (Qld), s17
Property Law Act 1974 (Qld), Part 19
Succession Act 1981 (Qld)
Trade PracticesAct 1974 (Cth)
Workers Compensation and Rehabilitation Act 2003 (Qld)

Blomley v Ryan (1956) 99 CLR 362, cited
Briginshaw v Briginshaw (1938) 60 CLR 336, applied
Brusewitz v Brown [1923] NSLR 1106, cited
Commercial Bank of Australia v Amadio (1983) 151 CLR 447, cited
Cook’s Constructions P/L v Stork Food Systems Aust P/L [2008] QSC 179, cited
Jeans v Cleary [2006] NSWSC 647, cited
Johnson v Buttress (1936) 56 CLR 113, cited
Jones v Dunkel (1959) 101 CLR 298, cited
Louth v Diprose (1992) 175 CLR 621, distinguished
Neat Holdings Pty Limited v Karajan Holdings Pty Limited (1992) 67 ALJR 170, applied
Payne v Parker [1976] 1 NSWLR 191, applied

COUNSEL:

PH Morrison QC with K Howe and C Heyworth-Smith for the plaintiffs
J Gallagher QC with LF Kelly SC and J Otto for the defendant

SOLICITORS:

DLA Phillips Fox for the plaintiffs
Hopgood Ganim Lawyers for the defendant

Felix Creswick and his son John Creswick are used car salesmen.

Over a period of about 25 years they, and entities associated with them, built up a considerable business and property portfolio.

In 2006 and 2007, relations between them soured.

In May 2007, they executed an agreement (“the May Agreement”) which, on one view at least, was to effect a settlement of their dispute. Felix, however, disavowed that agreement shortly after it was signed. He said that he had signed it under duress.

That led to the institution of the present proceeding. John, and other affected members of the Creswick family, seek to rectify the May Agreement by including in its terms properties which were not identified in the agreement, and for the agreement to be specifically performed by Felix. They also seek payment of monies said to be owed to them by Felix.

Felix has counter-claimed, alleging that on many occasions over many years John forged Felix’s signature on bank security, property transfer and other documents. Felix says that this fraud led John and other persons and entities within the Creswick family to obtain benefits at the expense of Felix, and they ought account to him for those benefits. His case on the alleged forgeries is cast in the alternative for relief under the Trade Practices Act 1974.

That rather bland introduction belies the ferocity with which this case was fought. Each of Felix and John went to extreme lengths to traduce one another’s reputation. As will appear, each succeeded in achieving that goal. Other members of the Creswick family have been involved, directly or indirectly, in this unedifying dispute. Much mud was slung between members of the Creswick family and their past and present advisers before and during the trial. Much of that mud stuck to varying degrees on numerous targets.

Dramatis personae

In view of the fact that many of the interested parties share the surname Creswick, it was agreed early in the trial that members of the family would be referred to simply by their given names.

It is convenient to list here the affected members of the Creswick family and also some of their associates, and other entities, who will figure in this judgment:

Felix Creswick (“Felix”) – father of the family
John Creswick (“John”) – son and principal protagonist of Felix
Shayne Creswick (“Shayne”) – John’s wife and mother of four of his children; she and Felix loathe one another
William Creswick (“Bill”) – another of Felix’s sons and business associate of John
Jane Creswick (“Jane”) – Bill’s wife
Jayne Creswick (“Jayne”) – daughter of John and Shayne
Frances Creswick (“Frances”) – Felix’s wife, from whom he separated in about 1973 and divorced in about 1978; mother of John and Bill; now deceased
Marcia Banfield (“Marcia”) – Felix’s most recent de facto partner; said to have separated from him, but continues to live under the same roof as Felix; the beneficiary of a property settlement agreement executed by Felix in March 2007 in satisfaction of claims under Part 19 of the Property Law Act 1974
Susan Orwell (“Susan”) – John’s long-term mistress and mother of two of his children
Tom Banjanin (“Banjanin”) – real estate agent; associate of both Felix and John
John Mott (“Mott”) – John’s solicitor prior to, at the time of and after the signing of the May Agreement
Joe Ganim (“Ganim”) – Felix’s solicitor after the signing of the May Agreement
Ian West (“West”) – the accountant to John and companies controlled by John
Tabtill Pty Ltd (“Tabtill”) – a company controlled by John; trustee of the John Creswick Family Trust
Tabtill No 2 Pty Ltd (“Tabtill 2”) – incorporated in 2001; controlled by John, but a number of shares were issued in Felix’s name; John says this was a mistake which was subsequently corrected; Felix says he was supposed to get shares in Tabtill 2 but John forged his signature on a share transfer form to fraudulently transfer the shares away from Felix
Tabtill No 3 Pty Ltd (“Tabtill 3”), Tabtill No 4 Pty Ltd (“Tabtill 4”) and
T2 Projects Pty Ltd (“T2”) – other companies effectively controlled by John through which John, and later John and Bill, have engaged in property developments.

Building up the Creswick empire

Having had the opportunity to see and hear both Felix and John for extended periods of time in the witness box, I have formed the very strong view that I can put little weight on, and have little faith in, much of the evidence given by either of them. I give further detail below of the reasons why I have reached these conclusions on their credit.

It is, however, possible to sift from the evidence a relatively objective account of the family history.

Felix immigrated to Australia in the early 1950’s. In the late 1950’s, he began business as a motor vehicle mechanic. Soon after, he began business as a motor vehicle dealer. He carried on these businesses at various locations in Brisbane and at the Gold Coast, both in his own name and through a number of companies.

Starting in the late 1950’s, Felix also became involved in property investment. During the 1960’s and 1970’s he (either alone, with Frances or through corporate vehicles) bought and sold numerous properties in South East Queensland. As time went on, he used the properties he had acquired as collateral for the purpose of raising finance, making further property acquisitions and to fund his business expansion.

John and Bill are two of a sibship of six to Felix and Frances. (The other four children play no role in this saga.) Felix and Frances separated in about 1973 and were divorced in the late 1970’s. It is clear that the domestic environment in which John and Bill were children was far from ideal. The family was adversely affected by Felix’s consumption of alcohol and gambling and by some domestic violence.

John was 15 when his parents separated. The other children went to live with Frances, but John stayed with Felix. While growing up, John had spent one year at boarding school and a considerable amount of time at his grandparents’ farm at Wellington Point. He attended school and completed Year 12. Bill was sent to boarding school as a young child and spent seven years there. When he left school, Bill became a qualified motor mechanic.

John completed school in 1975. He said that he considered attending university (whether that is true or not is not relevant for present purposes). After finishing school, he went to work in the used car dealership Felix had at the time. Shortly afterwards, John moved to Caloundra to start his own motor vehicle dealership business with Mr Lloyd Matlin. In 1982, Felix asked John to return to Brisbane and in about the middle of that year John and Mr Matlin relocated their business to the premises from which Felix had previously operated. The partnership between John and Mr Matlin, however, did not last long and was dissolved after a few months. From then on, Felix and John worked together in the car dealership business.

In April 1975, Felix bought his parents’ farm at Wellington Point. The Wellington Point property stayed in Felix’s name until it was subdivided and sold over a period of time from 1998. The circumstances surrounding the subdivision, including whether many of the documents associated with the subdivision and sale of lots were actually signed by Felix, and the application of the proceeds of sale of the subdivided lots, are matters in issue in this proceeding.

Between 1975 and 1978, Felix purchased the properties at 905-911 Logan Road, Holland Park (“the Logan Road properties”). These properties were (and still are) registered in Felix’s name. Felix operated his car dealership business from the property at 905 Logan Road in the late 1970’s, but he ran into financial difficulty. He liquidated a number of assets, including other real property investments, but kept ownership of the Logan Road properties. In October 1980, Felix’s application to renew his motor vehicle dealer’s licence was refused and he closed his dealership at 905 Logan Road. He was without his motor vehicle dealer’s licence until September 1982. The renewal of his motor vehicle dealer’s licence roughly coincided with the dissolution of the partnership between John and

Mr Matlin. As I have said, from late 1982 Felix and John worked together from the premises at 905 Logan Road in a used car dealership. The precise nature of their relationship in this business is also one of the matters in dispute.

In the meantime, Felix and his then de facto partner, Julie Bird, had purchased a rural property together at Office Lane, Glenmorganvale. The Glenmorganvale property was initially owned by Felix and Ms Bird as joint tenants, but consequent upon a property settlement between them after they split up, it became registered in Felix’s name solely.

In 1986, Tabtill purchased the property at 495 Logan Road. That purchase was financed by Alliance Acceptance. After the purchase of 495 Logan Road, John established a motor vehicle dealership on that site. Felix continued to manage the business on the site at 905 Logan Road.

In late 1986, Felix and John purchased the property at 796 Main Road, Kangaroo Point as tenants in common in equal shares. This was one of the properties in respect of which Felix claimed in this proceeding that there was a property partnership under which Felix and John were equal partners, the partnership’s expenses would be paid by Tabtill but from the motor dealership drawings of each of Felix and John, that the net income from the properties would be shared equally, and that the net proceeds of sale of the properties would be shared equally. Other properties to which this alleged property partnership is claimed by Felix to have applied are:

(a)     117 Old Cleveland Road;
(b)     661 Logan Road (referred to as the “Matilda site”);
(c)     Apartment 5 in “Belle Maison” at Broadbeach, and
(d)503 Logan Road, Stones Corner (“the Stones Corner property”) (ownership of which was registered in the names of Felix, John and Bill as equal tenants in common).

The funds for the acquisition of all these properties were sourced from or financed by Tabtill. Felix made no financial contribution to them.

In 1996, a vacant, canal-front lot at 35 Sentinel Court, Cleveland was purchased and registered in Felix’s name. The funds for the acquisition of this property came from or were financed by Tabtill, and Felix did not contribute financially to the purchase.

In 1989, the properties at 8-10 Crump Street, Holland Park (“the Crump Street properties”) were purchased and registered in Felix’s name. Crump Street runs off Logan Road, and the Crump Street properties are contiguous with the Logan Road properties. This acquisition was financed through Tabtill.

The properties on which Felix’s name continues to appear as registered proprietor (or one of the registered proprietors) are:

-the Logan Road properties;
-35 Sentinel Court, Cleveland;

-8-10 Crump Street, Holland Park;

-the Glenmorganvale property;

-503 Logan Road, Greenslopes.

John, Bill, Shayne and Jane have lodged caveats over the Logan Road properties, the Crump Street properties, 35 Sentinel Court and the Glenmorganvale property. Those caveats are supported by the present proceeding.

This does not complete the roll-call of properties in which the Creswicks or their companies have had interests over the years. As necessary, I will refer to further properties below in specific contexts.

I should make it clear that merely because a member of the Creswick family was registered as a proprietor of a particular property did not necessarily mean that that person had personally contributed to the purchase price of, or had a beneficial interest in, the property. The family’s modus operandi over the years was to “park” properties in the names of different individual family members and/or corporate entities.

Jo
hn and Shayne were married in May 1982, before the dissolution of the partnership with Matlin. Upon returning from their honeymoon, Shayne initially went back to live with her parents until refurbishment of a house situated on

909 Logan Road
was complete and John and Shayne moved in to it. Felix was also living in that house. Relations between Shayne and Felix quickly became strained. After some time, John and Shayne purchased their own home at Cedar Creek and moved out of 909 Logan Road.

The next 20 years or so were, by and large, good for the Creswick family fortunes.

After leaving school in 1980, Bill trained and became qualified as a motor mechanic, and ended up managing a service station for his employer. In 1990 he bought his own service station business. He sold that business in 1992 and then, at John’s request, went to manage and build up the business of the service station on the Matilda site. Bill was, at that stage, an employee of Tabtill. He worked there as an employee until the Matilda site and business were sold in 1994. By that time, he had married Jane. Bill then worked as a salesman in the dealership conducted on the Stones Corner site. In 2000, a property at Capalaba was purchased, the registered proprietors of which were Bill and Tabtill, and from which a car rental business and a motor vehicle dealership managed by Bill were conducted. Over the ensuing years, Tabtill 2, Tabtill 3, Tabtill 4 and T2 were established and used as vehicles for property development projects. T2 then established a recreational vehicle sale yard business at Moorooka. Bill was, and is, the manager of that business.

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.”

Monies drawn by family members under these arrangements were recorded in journals (described within the family as “the green books”).

Felix and Bill worked in sales, and sometimes management, positions in the various businesses in which the Creswicks were involved over the years, and John became the prime mover in respect of real property acquisitions, sales and developments. He was the one who decided in whose name or names each particular property would be “parked”. Those decisions, in turn, seemed to have been driven in part by revenue considerations. For example, in relation to the purchase of a particular property at Raby Bay (in respect of which Felix’s signature is in dispute), John said:

“Okay. Piermont Place in 2003, that was acquired and Jayne and Felix were put on the title? -- That’s right.
How did that come about? -- I got an opportunity to purchase another house at Raby Bay there and I thought it a good idea this time – Jayne was old enough to have the property placed into her name, and if she lived there for 12 months obviously the tax advantages were good.
How would the tax advantages come about? I don’t want the technicalities but -----? -- It was her principal place of residence.
All right. So did you discuss the purchase with Felix? -- I told him that I wanted to put it into his name and into Jayne’s name.
And did you tell him why? -- Yes, because it was an effective way to buy it and sell it and the profit come out of there with tax advantages on it, which he saw the benefit in, and I asked him if it was okay if I could use – I am sure it was the 911 property as collateral security on the loan and we – I set it up and they both borrowed 900,000, which was the purchase price for the house, Tabtill would pay all the payments on it and all the goings and Tabtill would put the – would retain the profits from that sale.
And did Tabtill pay everything? -- Yes, it did.”

John said, in effect, that the rationale for putting the properties in different names, and different combinations of names, was sourced in warnings from Felix to the effect that this would insulate the properties in the event of John going through a divorce. Felix’s rival contention was that it was a tactic adopted by John, who had a second family with his mistress, to protect his assets from attack by either of his families.

By the early 2000’s, the effective division of labour was that Felix was running the dealership at the Logan Road property, Bill was running the dealership at Capalaba and John was at the Stones Corner property engaged principally in property development.

In 2005, John decided to close down the Logan Road dealership which was being managed by Felix. John said that his reasons for closing it down were, in effect, that Felix was not moving enough stock through the business and it was unprofitable. There were also complaints about the way in which Felix conducted the business. Felix attributed the cause of the business downturn to the types of cars (“big American cars”) and spoke of an arrangement he says he reached with John for the amalgamation and redevelopment of the Logan Road properties and Crump Street properties. In any event, the business was closed down.

As at 2001, Felix and Marcia were living in the house at 909 Logan Road. They moved from there to Raby Bay. The reasons for the move are disputed – John ties the move to Felix wanting to impress his sister, who was visiting from Italy; Felix asserts it was done preparatory to the amalgamation and redevelopment of the Logan Road properties and the Crump Street properties. Initially, Felix and Marcia moved into a house registered in John’s name at 37 Sentinel Court, Raby Bay. John sold that house at the end of 2001, and Felix and Marcia then moved into a house rented by Tabtill at 12 Seahaven Court, Raby Bay. The house at 11 Seahaven Court was subsequently purchased with funds provided, or financed, by Tabtill and was registered in the names of John and Shayne. That house was refurbished and in 2002, Felix and Marcia moved into that house. They are still there. It is not suggested that Felix or Marcia personally contributed directly to the purchase price of 11 Seahaven Court nor have they paid for any of the rates, utilities or any other expenses of that property since they have been in occupation.

After the business on the Logan Road properties was closed down, Felix moved to the business which was being conducted at 503 Logan Road. That business was also closed a short time later. In the meantime, John had negotiated for a well-known motor vehicle retail group to take a lease of the premises at 906 Logan Road. Zupps took a formal lease from Felix of those premises for a term of 2 years from

1 December 2005. In fact, Zupps was in occupation of that site from earlier in 2005 until mid-2007, when it shifted to the 495 Logan Road site. During the couple of years that Zupps occupied the 906 Logan Road site, all of the rental paid by Zupps was paid directly into Felix’s personal account – a total of some $328,000.00.

From at least mid 2006, the relations between the parties went into a downhill slide. On 4 July 2006, John’s solicitor, Mott, wrote to Felix’s then solicitors, Connor Hunter, saying:

“Dear Sirs,
RE: TENANCY – 11 SEAHAVEN COURT, CLEVELAND
We act on behalf of the Proprietors of premises situate at and known as
11 Seahaven Court, Cleveland, which premises are tenanted under what we believe to be a tenancy at sufferance, by your client, Felix Creswick.
Our clients have instructed us that they wish your client to leave these premises on or before the 6^th day of September 2006.
It is clear that your client has no right to the occupation of these premises. He certainly has no title and, at best, occupies the premises with the tolerance of our clients. His occupation or tenancy is liable to be concluded at any time which might suit our clients.
Our clients have, however, indicated their preparedness to treat your client’s occupation as a tenancy at sufferance. They will therefore seek to determine this tenancy by Notice to Leave Without Grounds in Form 12 pursuant to the Residential Tenancies Act, thereby giving your client the benefit of the requisite period of notice of two months.
Should your client not be gracious enough to observe this period of notice our clients will and reserve their right to take whatever action they may be advised and as may seem expedient at the time to enforce your client’s vacation of the premises.
Your client’s tenancy or occupation of the premises is hereby terminated as of 6^th September 2006.”

Mott again wrote to Connor Hunter on 17 August 2006, saying:

“RE: TENANCY – 11 SEAHAVEN COURT, CLEVELAND
We refer to our previous letter in relation to Felix Creswick.
Our client has made arrangements to market the relevant house and wants vacant possession forthwith.
Our client is anxious to erect signs advertising the sale of the dwelling. Your client has threatened that he will remove any signs erected by our client.
We invite you to agree with us that it will be an unfortunate and expensive exercise if this matter were to become fully litigated, particularly in view of the relationship of the parties and the fact that any litigation can ultimately produce only one result.
With this in mind, we request that you use your good offices with your client to assist in the avoidance of any protracted expenses and embarrassing litigation.”

Connor Hunter then replied with a letter dated 25 September 2006:

“RE: PROPERTY AT 11 SEAHAVEN COURT, CLEVELAND
We refer to your letter of 5^th July 2006.
Although the registered owners of the property situated at and known as 11 Seahaven Court, Cleveland are our client’s son John Creswick and his wife, our client has an equitable interest in that property and will strenuously oppose any action taken by your clients to remove him and his partner of 13 years, Marcia, from the home at 11 Seahaven Court.
It is unconscionable that your client make the allegations that our client is merely a “tenant at sufferance” in the circumstances.
The decision to relocate from Holland Park to Raby Bay/Cleveland was made by our client after 4 houses owned by him were sold in Holland Park to enable your client John Creswick to pursue the development of 60 units on the subject land although subsequently the development was not approved.
John Creswick made a house available for our client’s residence at Sentinel Court which John Creswick had previously occupied on the understanding that because our client had sold his Brisbane houses, a transfer would be made into our client’s name of the house at Sentinel Court.
Shortly after relocating there, our client went on holiday with his partner Marcia and his sister who was visiting from Italy but on returning home, he was told that John Creswick had sold the property at Sentinal Court and that he and Marcia were to move out and John Creswick made arrangements for our client and Marcia to rent a home at 12 Seahaven Court, Cleveland.
Since our client wished to purchase a property in Raby Bay/Cleveland area he approached the next door neighbour at 11 Seahaven Court to see if that property might be available since the owner lived in Hong Kong and his son in law was living in that house at the time. Our client personally did all the negotiation with a real estate agent and requested that his son John Creswick arrange to have the house put into our client’s name as registered owner upon settlement, with no encumbrances on the house whatsoever, in consideration for the services which our client rendered for 18 years working for John Creswick’s company Tabtill Pty ltd, and the assistance our client had personally rendered to his son John Creswick over the years, and John promised to have the house at 11 Seahaven Court placed in our client’s name as registered owner.
Our client emphasises that he is owed in commissions and superannuation and rental moneys from properties at least double the value of the house property at 11 Seahaven Court, Cleveland. He also points out that his own properties were used to progress ventures of John Creswick.
However, John Creswick failed to keep his promise to place the property into our client’s name on settlement and instead, had the property placed in his own name and that of his wife.
John Creswick’s excuse for failing to keep his promise to our client was that he did not want our client’s partner Marcia to be “part of the house” but assured our client that our client could live in the house for the rest of his life. Our client does not accept John’s excuse and since that time our client has made repeated approaches to John Creswick to transfer the house at 11 Seahaven Court into his name but without success. This situation has left our client quite distraught with little faith in the promises made by his son John. Naturally our client has been reluctant to take court action against his own son.
Our client is 76 years of age at the present time and he does not have a home or a business of his own due to the fact that he has rendered very substantial financial assistance to his son John over the years. Our client has only a small income in rent and relies upon his credit cards for day to day living. On behalf of our client we make a final request that the house at 11 Seahaven Court be transferred into our client’s name forthwith as originally promised by John Creswick free from any debt or encumbrance whatsoever. In exchange, our client is prepared to not proceed to claim against John Creswick and Tabtill Pty Ltd in respect of the surplus moneys owed to him from the company Tabtill Pty Ltd, the amount to our client from the car business and for the services our client has rendered over the lengthy period of 18 years and the personal efforts our client has continued to help John to attain his present financial position and our client also requires that John Creswick cause all encumbrances whatsoever to be removed from all real estate presently in our client’s name and make full repayment of monies obtained by him by the mortgaging of our client’s properties and which monies have been applied by John Creswick to his own use. In addition, our client requires the following:
Full account to be made by John Creswick to our client immediately for moneys owing to our client for real estate sold in joint names of our client and John Creswick including:
(a)the Matilda Greenslopes Garage in which our client held a one half share;
(b)the Gold Coast Unit at 23 Surf Parade, Broadbeach in which our client held a one third share;
(c)the house at Piermont Parade, Raby Bay in which our client held a one half share;
(d)the property at 503 Logan Road, Stones Corner in which our client held a one third share;
(e)the Jaguar motor vehicle the value of which our client estimates was $80,000.00;
(f)our client’s interest in the development at 450 Mains Road, Wellington Point;
(g)the farm which was owned by our client for over 20 years in respect of which John Creswick has had the use thereof and in respect of which no money has ever been paid to our client;
(h)our client’s one half share in the profit on the sale of property at Mains Road, Kangaroo Point (sold to McDonald’s).
We now await to hear from you within 21 days from today’s date.”

Mott responded with a letter dated 27 September 2006:

“RE: TENANCY – 11 SEAHAVEN COURT, CLEVELAND
We acknowledge receipt of your letter to us of 25 September 2006, a copy of which has been provided to our clients.
At this juncture, if your client is prepared to quantify his claims, our clients will give consideration to settling any valid claims on a CASH SETTLEMENT BASIS only.
Our clients will not consider settling this matter by way of a transfer of real property. This applies particularly to 11 Seahaven Court, Cleveland.
In addition we are instructed to advise that our clients will withdraw the CASH SETTLEMENT only consideration of any proposed settlement in the event that your client’s claims are not detailed and quantified within seven (7) days from the date of this letter.”

On 2 October 2006, Felix wrote directly to John and Shayne, saying:

“I am 76 years of age and have now worked for you at Tabtill Pty. Ltd. for 18 years seven days a week.   During this time I have given you all my support and have put at risk all my properties for your business deals without my receiving any compensation whatsoever.
At 76 years of age I do not have a home, a business, or money. I drive a $5,000 motor car. I am living on credit cards.
Clearly I am not a greedy man.
The following is a list of moneys that I have estimated you owe me –   $
1.    Kangaroo Point property sold to McDonald’s – estimated
              profit of $500,000. My half:  250,000
2.    Interest on the $250,000:  400,000
3.    Sale of Broadbeach unit. My half share of profit:            120,000
4.    Sale of Greenslopes garage. My half share of profit:        175,000
5.    Greenslopes garage rent received over 8 years. My
            half share:  250,000
6.    Interest on the $250,000:  100,000
7.    Sale of Wellington Point farm to you:  1,000,000
8.    Interest on the $1,000,000:  600,000
9.    Sale of house at 17 Piermont Place, Raby Bay.
            My half share of profit:  200,000
10. 18 years’ rent of the Holland Park car yard at
            $7,000/month:  1,512,000
11. Interest on the $1,512,000:  2,100,000
12. Commission on sale of cars for 18 years (approximately): 588,000
13. Long service leave:  12,000
14. Superannuation:  50,000
15. Third share of the market value of the car yard at
            503 Logan Road, Stones Corner  400,000
16. Jaguar XJ8:  80,000

$7,837,000

After carefully considering my position, I propose that –
1.You transfer 11 Seahaven Court to me free and clear of all encumbrances.
2.You transfer to me $1,300,000 in cash.
3.You lift the encumbrances on my properties, specifically:
(a)903-913 Logan Road
(b)Glenmorganvale farm
(c)8 Crump Street
(d)10 Crump Street
(e)Vacant block at Sentinel Court.

In return for the three foregoing actions on your part I will forgive all indebtedness by you and Tabtill Pty. Ltd.

If this proposition is not acceptable to you, I will request that you pay me the $7,837,000 of cash you owe me not later than sixty days from the date of this letter.
In any event, regardless of whether you accept my proposition or not, I will require that you lift all of the encumbrances on my properties as I feel that the way you are conducting your business is putting my properties at risk.
Regrettably, if you do not comply with what I am putting to you, I will have to consider what action to take next.
I never expected that I would come to the point where I would be considering litigation against my own family.
Any communication with me about this matter must be in writing. I will not accept verbal communication.”

Mott responded with a letter dated 6 October 2006 to Connor Hunter, saying:

“RE: TENANCY – 11 SEAHAVEN COURT, CLEVELAND
We acknowledge receipt of your letter to us of the 3^rd October in relation to this matter.
A copy of your letter and your client’s claims have been dispatched to our client. Of course, the complexity and volume of your client’s claims will cause our client to have to spend some time in responding.
However, our client can make a brief response to some of the issues raised in your client’s log of claims. For example;
1. The house at Piermont Street, Raby Bay was originally purchased by your client and his granddaughter Jayne Emma Creswick. We are given to understand that Jayne Creswick paid a deposit of $20,000.00 from her personal account and was promised a contribution of one half from your client. Our instructions are that your client has made no attempt to repay this amount nor the usual outgoings associated with the acquisition and use of the dwelling such as the payment of rates interest in mortgage debt, stamp duty etc. However that may be, your client should deal with Jayne Creswick in relation to this matter.

2. With regard to the Jaguar XJ8. If your client would be good enough to supply a receipt for the purchase of the Jaguar for $80,000.00, our client will promptly return the vehicle to him.
3. Our instructions are that your client received a number of cash loans from ours including but limited to a sum of $36,000.00 lent to your client for the acquisition of a race horse named “Romantic Journey”. Your client acquired a one third share in that animal.
Our client will address all of the issues contained in your client’s log of claims in due course and will be in a position to elaborate upon the matters referred to in 1, 2 and 3 above.
We should point out however that nothing contained in your client’s log of claims, your correspondence or any other matter relating to the issues between our respective clients has any bearing upon your client’s occupation of the dwelling at 11 Seahaven Court, Raby Bay. Our client requires yours to vacate this dwelling forthwith, failing which our client will institute the necessary proceedings to bring about the same result.”

On 12 October 2006, Mott wrote again to Connor Hunter saying:

“RE: FELIX CRESWICK
We refer to previous correspondence in relation to this matter and reiterate that our client is currently having the records of various corporations examined and the company’s accountants are preparing in full detail a record of Mr Felix Creswick’s expenditure and drawings from the company over the period of some 26 years. Surprisingly these records still exist.
However, a matter of some urgency has occurred. Your client apparently is the proprietor of a property at Holland Park which is currently leased to Zupps Motors. This lease was originally negotiated by our client Mr John Creswick under what our client believed at the time to be a full and pervasive authority from your client to negotiate on your client’s behalf.
We are instructed that to date your client has received some $245,000.00 in rental as a result of this lease.
This lease had to be negotiated as recently as July because of a requirement of the Brisbane City Council deeming 60% of the property being not suitable for its current use. Our client’s prompt action prevented the immediate termination of the lease by Zupps which of course, would have resulted in a truncation of your client’s income.
Our client is attending a meeting with Zupps on Tuesday 17^th October next. It appears from your correspondence that our client’s capacity to negotiate on behalf of your client, has been totally withdrawn. It has been made clear to our client that Zupps will not deal with your client for reasons best known to representatives of Zupps.
Our client is concerned about his position with regard to Zupps in circumstances where your client has withdrawn his full authority to act on your client’s behalf. In the event that Zupps chooses to vacate the Holland Park premises, the result would be, needless to say, a total loss of income to your client. However, my client is in a position to influence Zupps favourably, provided he is given the motivation to do so as has been done on two previous occasions.
We find ourselves in a position of having to reiterate the demand that your client vacate the dwelling at Seahaven Drive to avoid costly and embarrassing legal action.”

On 13 October 2006, Connor Hunter sent two letters to Mott. The first responded to Mott’s letter of 6 October 2006, saying:

“We refer to your letter of 6^th October 2006.
Our client’s comments in relation to items 1, 2 and 3 of your letter are as follows:
1.   In relation to the Contract of Sale dated 8^th February 2003 for the purchase of the house at 17 Piermont Street, Raby Bay, our client points out that the house was purchased for $880,000.00 in the names of himself and Jayne Creswick and was then sold under a Contract of Sale dated 30^th November 2004 for $1,380,000.00. When the property was purchased, our client did enquire of his son John as to his one half contribution of the deposit and was informed by John not to worry about that at that stage and that John would be paying the outgoings such as rates and mortgage debts on the property and that upon the property being onsold, these would all be accounted for as well as any contributions towards deposit money. Our client and Jayne Creswick should have been properly accounted to as registered owners of the property for the considerable profit made on the sale. Our client states that he was never accounted to in relation to such profit and requests that evidence be provided forthwith as to distribution of the proceeds of sale of the property pursuant to the Contract dated 30^th November 2004.
2.   Our client is aware that upon the land sales being effected in relation to the property at 450 Main Road, Wellington Point, one of the disbursements was for the purchase of the Jaguar SJ8 for $80,000.00. Your client John Creswick handled the development of the relevant estate even though the property was developed under our client’s name.
As pointed out in our letter of 3^rd October 2006, our instructions are that our client requires a full accounting to be made to him regarding the development of the property at 450 Main Road, Wellington Point including details of every transaction whereby the lots into which that farm property was subdivided, were sold off to the various purchasers so that our client’s interest in the profit arising from that development can be accurately ascertained. This matter has now become most urgent since our client is being pressed to enter into a settlement arrangement with his former defacto spouse as a matter of urgency and we therefore request that your client provide us with full details of where the proceeds of sale of each of the transactions associated with the development of the property at Wellington Point were deposited and the proper accounting to him in relation to this interest in the profit as abovementioned within fourteen (14) days of today’s date.
3.   It is untrue that our client received a sum of $36,000.00 by way of a loan for the acquisition of a race horse named “Romantic Journey”. It is also untrue that our client acquired a one third share in that animal. Our client has explained that he entered into an arrangement with his son Bill Creswick. He and Bill purchased the race horse named “Romantic Journey”, Bill having advanced the purchase price of $37,423.69 on or about the 27^th February 2004 and our client having provided approximately $18,000.00 for the training and breaking in of the horse. The arrangement was that Bill Creswick and our client each have a one half share in that animal. It was only some time subsequent to the arrangement with Bill for the purchase of the horse that our client was informed that Bill had borrowed money from Tabtill Pty Ltd in order to advance the purchase price of the horse. Our client certainly did not know of any arrangements with Tabtill Pty Ltd nor is he responsible to Tabtill Pty Ltd in any way for the purchase of the horse.
Our correspondence of 25^th September 2006, combined with those matters contained in our correspondence of 3^rd October 2006 clearly reflect on our client’s rights to remain in the house property at 11 Seahaven Court until his claim against your client John Creswick is settled.
We reiterate that our client requires full accounting to him in relation to the proceeds of the development of the property at 450 Mains Road, Wellington Point within fourteen (14) days from today’s date. Our client also requires a full response to the other various matters which have been raised in our abovementioned correspondence and is prepared to allow twenty one (21) days from today’s date of obtaining such full response. For our client’s claim in relation to such matters to be properly resolved, we point out it is difficult to deal with piecemeal responses to those various matters and we ask that you ensure that all matters are responded to within the above time frames.”

The second letter sent by Connor Hunter to Mott on 13 October 2006 said:

“RE: FELIX CRESWICK – LEASE TO ZUPPS MOTORS
We refer to your letter of 12^th October 2006.
We confirm that our client does not wish Mr John Creswick to act any further on his behalf because of the issues existing between our client and Mr John Creswick which need to be resolved as you are well aware.
Our client does not know any reason why Zupps cannot deal with him personally as the landlord in respect of the relevant lease and our client requires that a copy of the Lease be made available immediately to us as his solicitors.
Our client has also received assurance from his son Mr Bill Creswick that the Lease by Zupps is in place until at least June 2007.
We remind you that if our client is deprived of the income currently received from Zupps as a result of the Lease, by actions taken by your client Mr John Creswick, then our client will be holding Mr John Creswick totally responsible for any such detriment in these circumstances.
With regard to the penultimate paragraph of your letter, we refer you to our separate letter of today’s date and reiterate that our client will certainly not be vacating the dwelling at Seahaven Drive until the issues between himself and Mr John Creswick and Tabtill Pty Ltd are resolved.”

By the end of 2006, Felix was 76 years of age. He had a long-standing history of coronary artery disease. Felix had been under the care of Dr. Hossack, cardiologist, since 1996 when he presented complaining of angina. Even at that time, Felix had previously had a myocardial infarction. An angiogram performed in 1996 demonstrated that Felix had severe blockages in all three coronary arteries. He subsequently had a total of six bypasses.

Apart from deteriorating relations with his sons and their families, the relationship between Felix and Marcia was troubled. He was undoubtedly drinking more than was good for him, was also experiencing blackouts (which Dr Hossack attributed to his cardiac condition) and was depressed. In late 2006, Felix was referred to

Dr Apel, psychiatrist, who saw Felix for the first time in November 2006. At that time, Felix had made a WorkCover claim (to which I will refer later). On

30 November 2006, Dr Apel wrote to Dr Brett Towner of the Capalaba Medical Centre, saying:

“Dr Cliff Quinn originally referred this gentleman to me however I understand Mr Creswick’s son had objected to his WorkCover claim and suggested that he change medical practitioners.
Mr Creswick has a mild Adjustment Disorder with mixed Anxiety and depressed mood secondary to a series of domestic stressors within his family.
Apparently Mr Creswick has a property mortgaged to benefit his son and states that he is now left without a roof over his head that he owes money and lacks the financial support. Family arguments are causing considerable distress, as his partner Marsha has been rejected by his son’s wife. His Adjustment Disorder is unlikely to settle until such times that his financial security is more guaranteed.
In the interim, I have left him on Stilnox 10 mg 1 to 2 Nocte and Lexotan 6mg half as required.”

Interestingly, Dr Apel also wrote to the referring medical practitioner, Dr Quinn, on 2 November 2006, saying:

“Thank you for referring the abovementioned. He certainly has an interesting family history. While his current Adjustment Disorder symptoms are related to his son John’s attitude to him in sacking him in May this year from his car business, it also likely that he has been fairly ruthless in his dealings with family members in the past.
I have lodged his WorkCover certificates with a letter to WorkCover and suggested they contact him to proceed with the claim. I suspect a lot of his proceedings are being done in order to punish his son John who also from all reports is no angel.”

In March 2007, Marcia and Felix executed a property settlement agreement under Part 19 of the Property Law Act. The recitals to that agreement provided:

“A.The Applicant filed a complaint against the Respondent in the Supreme Court for the State of Queensland, Matter Number BS1927 of 2005 (the “Complaint”), seeking to recover monetary payment and the rights and entitlements to and the interests in property held by or on behalf of the Respondent pursuant to Section 286 of the Property Law Act 1974.
B.The parties desire to enter into this Settlement Agreement in order to provide for certain payments and or conditions in full settlement and discharge of all claims which are, or might have been, the subject matter of the Complaint, upon the terms and conditions set forth below.
C.Whereas the Applicant and the Respondent (collectively “the Parties”) wish to implement this Settlement Agreement (“Agreement”) to avoid protracted and costly litigation and to preserve judicial resources.
D.Now therefore, the parties, intending to be bound by this Agreement, hereby stipulate and agree as follows:”

This agreement imposed the following obligations on Felix:
“2.0 Payments and Considerations:
2.1In consideration of the release set forth above, the respondent, Felix Anthony Creswick, agrees:
2.2To provide for the applicant a new dwelling house on a portion/block of land valued at five hundred thousand dollars $500,000 at no cost or outlay to the applicant in any way or manner whatsoever. This dwelling house and the land that it stands upon shall be registered as Marcia Dianne Banfield being the sole owner of that property.
2.3The provision of five hundred dollars nett ($500.00) per week indexed for the rest of her natural life.
2.4Continual payments of Health Insurance for Marcia Dianne Banfield for the rest of her natural life to a Health Insurer of her choice.
2.5That the property consisting of an area of 44.7 Hectares at Office Lane, Wanora Queensland 4306 property ID 401914 on RPD L21 RP118094: in the parish of Walloon be converted to ownership in the joint names of Felix Anthony Creswick (the Respondent) and Marcia Dianne Banfield (the Applicant).
2.6The provision of a motor vehicle to the value of fifty thousand dollars. ($50,000).
2.7That the above agreement provisions be completed within a period of 120 days (one hundred and twenty days) or a period that is considered reasonable which shall be no longer than 150 days from the date that the Respondent and the Applicant sign this Agreement.”

John and Bill found out about Felix having entered into this agreement with Marcia. Apart from anything else, the agreement required that a $500,000 house and a $50,000 motor vehicle be procured for Marcia within 120-150 days from the date of the agreement. The chronology is not completely clear on the evidence, but it would appear that Felix discussed with John the need for Felix to make provision for a house for Marcia, and John took Felix to look at a “spec” house John had built at Schonrock Street, Wellington Point. John says that Felix, in colourful terms, rejected this property, indicating that the house was below a standard appropriate for Marcia. Felix effectively agreed with this as the reason he rejected that property.

Felix and John then had a number of arguments about various matters, culminating in a telephone call in which John accused Felix of having called John’s daughters “sluts” or “whores”. Felix denied having used those words in reference to John’s daughters although it was equally clear that Felix disapproved, and expressed his disapproval of, his granddaughter Jayne’s intimate relationship with her then boyfriend.

After that phone call, John, in late March 2007, wrote the following letter to Felix:

“To
Felix Creswick
11 Seahaven Crt
Raby Bay QLD
To the Family Man you call yourself ...
Today marks the final time you and I will ever have any further contract with each other, via phone or any verbal communication. I do not have the time or inclination to cop your verbal abuse and accusations that you make about me and foremost my wife and today, even my children. These are my feelings on your contribution to this family over the past several years and to be quite blunt with you they pretty well express the feelings of anyone who has anything to do with you both personally and financially.
You are a complete Liar and a dishonest person in all your dealings both personally and in family matters and you will stop at nothing to achieve your own personal satisfaction from any situation no matter who you have to use or expend along the way. Most intelligent people stay away from you as they see you for what your are, however you still manage to gather a few unfortunate people with similar dysfunctional problems and be-friend them as our allies, however eventually you end up burning them also.
Take a good look at yourself “Mr. Family Man” “Cane Cutter Millionaire” and ask what have you done over the past 25 year? Did you find 1 property? (did you have the financial capabilities to settle a deal?) Did you contribute to the betterment of the family? I bet you are thinking right now “I WORK LIKE A SLAVE AND GIVE MY BLOOD AT HOLLAND PARK” Well these are the facts and on the record you have 90 plus complaints with Office of Fair Trading, you have or had court cases involving a (Jaguar, LEE) (Rolls Royce) (Kallis) (Matilda) (Fadoulis) (Spranklin) (Gunther) (Geary) (Narm Corp) and so on and so on, all of which were never your fault as u say and furthermore u are responsible for the near loss of my Dealers Licence THRU YOUR DISHONEST Motor Dealing at Holland Park and over charging REV’s certificates. Are you starting to get the picture & do u remember these events or have u got memory loss again? In business you were consider a dud! Even Ronnie Wanless jokes how you touched him up and so many people consider you not a smart person! Just a dishonest person who never keeps his word and rob people for some lousy crumbs. How about the fake insurance claim with Dr Quinn for stress or the fake insurance claim... Remember now.
Today you hit rock bottom by attacking my wife and children.. Did u even know that Jayne is 1 year off being a Doctor and Sarah is a qualified Beauty Therapist and Emily is 2^nd year university and James is at Nudgee Boarding. Harry is off to Nudgee. Next year Isabella sings like a bird and Amelia is bright as a button like Jayne and guess what? They all LOVE their fathers and live at HOME with their Parent’s like normal families do. You will never until the day you die, you miserable bastard! Be able to take that from me or Bill and more importantly you will never in your life experience the Love or children give to us as fathers. All you have is 2 dogs in this world because they cannot fend for themselves or speak their minds. You must be a proud man right now, Mr. Family Man!!
I even have to put a ROOF over your miserable head at no. 11 Seahaven and organize the Holland Park rental income for the past 3 years so you can merrily gamble and drink the lot away and now you want to further cause havoc in our lives by demanding outrages settlements and further by not keeping your word by settling up Bill ... Well Mr Family man!! You no longer have a hold on me emotionally or financially and you can pull whatever you want and which ever way it all goes everyone will know finally what you are!! Take a good look at yourself and ask did I have a successful family life? Do I have the love of my children? Did I do my best for the family? Have I done anything outstanding in business? Did I leave anything in Business for my children to build on? You must now be getting the picture as clear as a bell!!! “YOU HAVE ACHIEVED NOTHING!!!!! But created misery & embarresmant for this family.
Bill and myself are building up a family business to pass on to our children and then their children, that is something you won’t understand however you will understand that I will protect Bills and my family from going down the path you and Francis took and I will use everything in my power and whatever resources required no matter what it takes to keep our Family’s together!!!!! I have over the passed several years turned elsewhere for advise on how to be successful and to be quite frank with you. I am fed up with hearing you bad mouthing me around the place and although that only shows how stupid you really are I suggest you keep your worthless opinions to yourself!!!

None of my children want to have anything to do with such a miserable person such as yourself and that is their decision, as unlike you I give them the time of day to decide who they can and can’t associate with.
I sincerely hope you and your Millions and all your properties and whatever worldly possessions YOU THINK you have enjoy the remaining days you have left!!!!!
May you live and enjoy your life
Goodbye!!!
John”

Felix responded (in a letter also addressed to Bill) dated 2 April 2007:

“After receiving your very emotional and angry letter I also feel very hurt that you would say and think such things about me. It has caused me a great deal of heartache and distress.
We all make some mistakes in life that we don’t mean to make but that is the way life goes sometimes. You have expressed your feelings to me and I am not going to reply to them as such as it will not achieve anything. The only thing I will say is that they are not true and as for your comment about me bad-mouthing you, I have praised your achievements to other people and commented on how hard you work.
You say that you and Bill are building up a family business to pass on to your children and I hope you are very successful.
I want to point out to you that without my business you would not have been able to build up a business. I am very concerned that you are and have been using my assets to build your business, and am very concerned about the way you may have gone about it. Because my properties are so heavily mortgaged I am left with nothing.
I am the registered owner of the property at Logan Road. I am the registered owner of the property at Glenmorganvale. I am the registered owner of the land at Sentinel Court and I am one third owner of the property at 441 Logan Road Stones Corner.
You have been building your own business on my assets and borrowing money on them where they are now mortgaged to the full.
I have also been speaking with certain people who have advised me that certain documents have been signed on my behalf and without my knowledge in order to obtain money from my assets.
I do not want to cause you or Bill or your families any distress and want you all to be happy and successful, but not at yours or my expense. I am entitled to my share of what is rightfully mine.
I am lead to believe that numerous transactions and business dealings have been done without my knowledge and may involve people within the financial institutions that money has been borrowed from.
My farm at Wellington Point was developed and sold by you and I received absolutely no financial return.
How was this done without my knowledge and authority.
All I want is what is rightfully mine and I believe as sensible adults we can come to some compromise on this so that neither me or your families suffer.
I do not want to have to resort to taking action that could be hurtful to us all, but if I have to I will have no choice but to do so.
Unless we can settle this matter as sensible adults I can only see myself taking the following actions.
1. Having the business dealings concerning my assets investigated.
2.Obtaining documents that relate to those business dealings, particularly where money has been borrowed against my assets.
3.If there is any evidence of serious fraud or unethical business practices report them to the appropriate authorities.
4.Advise the financial institutions of what I am doing.
5.As a last resort declare myself bankrupt.

I have kept records of all payments that I have made in the way of rates and land taxes that I was responsible for and have kept other documents.
You and Bill can continue to build your business and you can keep whatever you want to continue to be successful provided I am given my fair share of what I am entitled to.
I don’t know why you would say that I have millions and properties that I think I have. I know I have the properties.
To think it has come to this is beyond my belief, and I am happy for you and Bill to be happy and successful provided I can walk away with what I am entitled to so I can be assured of a comfortable life in my twilight years. Is this too much to ask?
I am shocked to think that you are so bitter towards me as I have never intended to be bitter to you or Bill or any of my family.
It seems as though I have been deliberately bypassed and I have been stripped of all my assets without my knowledge or consent on a number of occasions. I hope this is not true but if it is it will all have to come out unless we can settle this in a sensible manner.
I sincerely hope that you will take the time to discuss this with Bill and come to a sensible conclusion instead of continuing with this unnecessary bitterness.
I never intended not to set Bill up as you have said, however I must be entitled to what part of any properties are mine.
I know that during our phone conversations with both you and Bill last week it became heated and a lot of things are said when emotions are running high. I am also under a lot of stress and pressure with regards my future security also.
I am not bitter and I am not stupid and I do not want to be left to rot and die as you seem to want me to do. This is all so unnecessary.
Signed
Felix Creswick”

After Felix resiled from the May Agreement (the circumstances of which are set out below), John sent Felix a fax dated 4 June 2007. The typed part of the fax was a copy of an email which John had sent to Bill for Bill to see, but was, in fact, a letter from John to Felix. This letter said:

“Dear Dad
I would like to say my Final Goodbye’s to you as my father “now” before we start a battle which I never thought I would have to enter against you of all people in this world because of a Marcia Benfield or for any reason on this earth.
From the time I lefty Sunnybank with you until a few years ago I had the deepest respect for you as a Father and a hard Business man and I thank you for teaching me the principals of how to do a deal and make a success.
It is unfortunate the events of the past few years has seen you and me fall apart as a team and more important as Father and son. We have had a lot of people try and bring us down over the past 30 years but we stood together and not 1 ever came near us and we successfully built a solid empire. Now it is time as Father’s for Bill and myself to carry forward this success and pass on to our Son’s and Daughters the knowledge for their future’s.
However!!!!
James came home from Nudgee College the other day and asked me “why have you and Grandpa started to fight each other” ... I had not answer. I could not tell my son WHY and I did not want him to experience the thought of a Father and Son having to fight each other.
Later I sat with him and Explained.
James FAMILY is First and then there is every one else in the World. Unfortunately Grandpa is getting older and is being “Conned” and has decided that Marcia Benfield and her Daughter Evyette along with Richard who is grandpa’s great advisor are the only people in the World who care for him and are more Important than the Creswick Family and he has decided to be listen to their advise and eventually when they are finished with him and cleaned him out they to will Leave him to rot like a dog with nothing and all Alone to live his last days a sad man without Family.
James then asked me to Stop this and Talk to You Grandpa and Fix up the dispute. I told him that I had tried to fix up the problem between Grandpa and me and you know, like the day I went to court when You and “Frances” got divorced ... your grandson James said he will try and fix the problem between us. I said to him thanks, but Grandpa has made his decision to stay with Marcia and Evyette and listen to Richard’s advise and what happens from here will be decided by the courts.
Life has made a full circle however I make a “Solemn Oath” to never be like you Dad and destroy my Son and or the Family but I will guide my Son and the Family till the day I die and Love them all with all my Heart. I also will never become a Gambler an Alcoholic or a man who goes back on any deal or my word to anyone and that is why I am successful today and will be in the future after you finish this useless fight with me.
No MAN will win this fight in court DAD “only” Marcia Benfield and her Daughter Yvette will enjoy the fruits of your money and properties, AND even after they leave you after the Settlement, you will live the rest of your life a lonely old man. I will not stop any of the family who want to see you and I will still let you live in my House at Seahaven and keep a roof over your heard and food on the table however I cannot and will not ever have anything to do with you again. For this I am not sorry and you will understand my reasons.
As for “The Creswick Family” we will succeed and grow even bigger and better and learn from this experience and I will guide them to be the very opposite to My Mother and you my Father.
Goodbye Dad!!! May u live many many more years on this planet but to me sadly my Dad left me a few years.”

John handwrote a message to Felix on this fax:

“Felix. I have the $600,000 cash ready to settle by Wednesday 6/6/07 and you can pay Marcia straight away if this helps.”

On 6 June 2007, John sent Marcia a handwritten fax, in which he said:

“Happy now Marcia
Why not just go and leave us alone
JC
You have managed to & succeeded to destroy what was left of our family. Your money is ready to collect. Have your solicitor make arrangements.”

I have not attempted to recount the entire history of the members of the Creswick family over the 25 years or so with which this litigation has been concerned. The matters I have set out above are a sufficient statement of the background to the circumstances surrounding the execution of the May Agreement. Nor have I attempted to give details of the many properties in which members and associates of the Creswick family have had interests over the years. To the extent that particular properties are relevant to the particular matters in issue, those properties have been referred to already or will be identified in the reasons below.

It is, however, appropriate to pause at this point to say something about the credit of the Creswick witnesses.

The Creswick witnesses

I had ample opportunity in the course of this trial to see, hear and assess the demeanour of each of Felix, John, Shayne, Bill and Jane.

John’s evidence-in-chief occupied about a day of court time. He was then cross-examined for the best part of five days. Felix’s oral testimony was of similar duration.

No topic was out of bounds for these witnesses. The personal character of each of John and Felix was in play from the outset. Each was clearly intent on portraying the other as dishonest and immoral.

I do not propose rehearsing every individual allegation and admission made in the course of these witnesses evidence. Nor do I propose setting out the submissions made by counsel. It is sufficient to note that:

(a)the written submissions in chief by counsel for the plaintiffs run to 180 pages, of which about one quarter is devoted to the evidence of the Creswick witnesses on various aspects of the case. Some 30 pages alone directly address issues of credit concerning John, Felix and Jane;
(b)The written submissions in chief on behalf of Felix run to 151 pages. Pages 6-22 of those submissions are devoted solely to issues of credit in respect of the Creswick family, while issues of credit in respect of them are subsequently raised and argued in respect of each discreet aspect of the case subsequently referred to in those submissions;
(c)Ten of the plaintiffs’ 40 page submissions in reply dealt solely with the credit of the Creswick witnesses;
(d)Six of the 65 pages of Felix’s submissions in reply addressed the credit of the Creswick witnesses directly, while there were many more submissions on their credit throughout the rest of the document.

In short, I think it can fairly be said that everything that each of the Creswicks could possibly want to say about one another has been said.

In what follows I will deal with the Creswick witnesses in the order in which their names appear in the court heading to this proceeding, state my assessment of their credibility and give at least examples of the matters which, apart from my own observation of them as witnesses, have led me to make these assessments.

John

John gave his evidence-in-chief in a measured and confident way. He was

cross-examined at great length and in great detail. On occasion, the attack of the cross-examiner was intensely hostile. It is not surprising that, in response, John was occasionally truculent.

But John was, I find, prepared to say in evidence whatever he thought was necessary to advance his own interests, to protect himself from attack, and to blacken Felix’s character. My assessment of John is that he is a bully in his business and personal lives. One example of this emerged in a video[1] taken by officers of the Office of Fair Trading when they executed a warrant on the Capalaba yard on 26 May 2003. The video clearly shows John physically and verbally intimidating the officers, and referring to at least one, if not both, of the officers as “dogs”. John explanation that his demeanour at the time was affected by the flu was quite unconvincing.
[1]Exhibit 17.

Another significant indicator for me, in conjunction with my observations of John, was the language he used in his correspondence with Felix, particularly the letter of March 2007 and the subsequent letter of April 2007. Even if one accepts that John thought he heard Felix refer to his daughters as “sluts”, the language and tone of the March letter were not only extreme, but served to highlight the depth of feeling which John then had for Felix and which enured through their subsequent dealings and throughout the current litigation. I suppose, as John suggested when

cross-examined about the March letter, that one could imagine a son writing a more hateful letter to a father, but that just highlights John’s tacit acceptance of the fact that his letter itself was “hateful”.

Felix’s counsel sought to make much of the fact, as it emerged, that John had a second family with his long term mistress, Susan. I am prepared to accept that, when initially questioned on the number of children he had, the answer he gave

(i.e. four) related to his children by Shayne, that relationship being the immediate context of the questioning. Nor do the facts that John had a second family with his mistress, or even that he had commenced this extramarital relationship early in his marriage to Shayne, of themselves mean that his evidence is unreliable. It might, as was submitted by Felix’s counsel, be used as a pointer to his character – the fact that he was prepared to cheat for so long and so systematically on his wife would support a finding that he would be prepared to cheat on his father. But ultimately, what undermined John’s credibility as a witness were the evasive, and indeed ridiculous, answers he gave when questioned on the topic of his second family:

“How long were you involved with Susan Orwell, Mr Creswick? -- Several years.
Several years. It started when she was 19 years old? -- I don’t recall.
You don’t recall. You give us the dates, Mr Creswick, when the relationship started and when it ended? -- I don’t recall the dates.
You can’t recall the dates? -- No, I can’t.
That’s a lie, Mr Creswick. You are not telling the truth? -- I am telling the truth.
Do you think that the sort of behaviour you can get away with in a used car sales lot works in Court? -- Could you clarify that?
Do you think that you can insult his Honour’s intelligence by saying you don’t remember these things? -- I don’t recall the length of term that Susan Orwell and myself had an affair.
I am suggesting to you that you started having a sexual relationship with her when she was 19 years old, is that correct? -- I don’t recall.
You don’t recall? You don’t recall how old she was when you began having a relationship with her? -- No, I don’t.
You were married at the time to Shayne. Do you recall that? -- I was married May of ’82.
Can you answer the question? -- I was married while I was having a sexual relationship with Susan Orwell, yes.”

These answers (or non-answers) stood in stark contrast to the confidence with which John was able to give evidence about the details of his childhood and of his early years in business with Felix. In fact, as it emerged in evidence, John’s relationship with Susan was for years, and he arranged for support and accommodation for his second family to be financed through Tabtill.

The evidence also disclosed at least one occasion when John had lied under oath. On 2 February 2008, he swore an affidavit in which he stated, inter alia, that he had not spoken with Felix since about June 2007. But in his oral evidence before me, he said that he had spoken to Felix in July 2007. It was necessary for him to say this in order to explain the existence of a Suncorp letter of offer dated 18 July 2007 which bore a signature which John asserted was Felix’s signature. John’s counsel’s submission that “the phone records show that there was contact between John and Felix in July 2007” goes no way to explaining the sworn statement John had made in February 2008.

Bill

Bill was a bit player in the Creswick family drama. It was clear that Bill relied on John completely. Bill left the business and property development sides of the family business to John. Bill was criticised by Felix’s counsel for giving confused and confusing evidence about the arrangements for Bill and Jane to acquire

35 Sentinel Court
. I do not think Bill was being deliberately evasive; I consider it more likely that he did not have a proper understanding of the arrangement itself.

I do not regard the fact that Bill, through his solicitors, flagged the prospect of bringing a family provision application under the Succession Act in respect of his mother’s deceased estate is of itself emblematic of him being an “avaricious man”, as was submitted by Felix’s counsel. But the questioning of him on this topic revealed to me that Bill was intent on ensuring that he not be seen as such a character. On 29 May 2009, Mott, acting for Bill, wrote to the solicitors for the executors of Frances’ deceased estate, saying that he had received instructions from Bill that Bill “wishes to make an application under the family provisions of the Succession Act for provision from the estate of his late mother”. Mott sought financial information from the estate’s solicitors and correspondence then ensued between the solicitors. On 21 August 2009, after having received some information from the estate solicitors, Mott wrote to the estate solicitors advising that Bill was “currently absent from Brisbane” and saying:

“I believe it is my client’s intention to obtain counsel’s opinion in relation to this matter which he will attend to as soon as practicable. In the meantime, I am instructed to advise that it is my client’s intention to pursue his claim in this matter.”

When cross-examined, Bill was careful to say that he had not actually made a claim on his mother’s estate. After having been shown the correspondence which passed between the solicitors, there then ensued a passage of evidence which dealt both with that topic and also contact between Bill and Felix on the evening of

25 May 2007, i.e. after Felix had signed the May Agreement. It is necessary to set out that evidence at some length:

“MR KELLY: So what I am putting to you – are you aware from the fact that you are making – or you – maybe you haven’t made one formally, but you have intimated that you wish to make a claim for family provision? -- I received a phone call from my sister in Rockhampton, who I hadn’t spoken to for some time, although I had spoken to her husband, and this was after my mother’s funeral, and on the day of my mother’s funeral she spoke to me and she indicted that she was slightly concerned with the area of my mother’s will and I asked her if she wanted me to have – if she would like me to look into it, I will. If not, then I won’t. So I simply asked Mr Mott to pen a letter, forward a letter, and just asking what was in it. I have no claim against my mother’s will. I won’t be making a claim against my mother’s will. It is not my intention to make a claim against my mother’s will.

I accept that it was Felix who initiated contact with Banjanin with respect to this matter. Despite his protestations, Felix was undoubtedly under pressure, not the least being the financial pressure caused by the property settlement he had reached with Marcia. That pressure was exacerbated by Marcia leaving him; he thought at the time that she had left him for good. Felix needed to have access to money to make good on his deal with Marcia. That was, in my assessment, more than sufficient reason for him to ask Banjanin, as a friend, to intervene with John.

On the other side of the coin, there was little incentive for John to bring his dealings with Felix to closure. The acrimonious correspondence between their solicitors had been in abeyance for some months. Felix and John had certainly had a major falling-out at the end of March and beginning of April but, despite that, there was no discernible benefit for John in agitating to have Felix conclude a settlement with him.

I also reject Felix’s version of having been told by Banjanin that he had a cheque for $200,000 in his pocket because the sale of the property had fallen through.

Not only does this not make sense, it simply does not align with the fact that the house was not actually sold until a considerable time after the events in question. Nor do I accept the version that Banjanin told Felix that GE was foreclosing on John and Bill, that they were in trouble and that they needed Felix to sign a guarantee. But in any event, as noted above, Felix said that he did not believe the statements he asserted Banjanin had made about the financier foreclosing and the boys being in trouble.

I consider it much more likely, and accept, that the course of events on

24 and 25 May 2007 between Felix and Banjanin was generally as described by Banjanin. In particular, I accept that on the morning of 25 May, and going into later in that day, Banjanin made numerous phone calls to John relaying Felix’s various requests. The telephone records[31] disclose that Banjanin phoned John at 10.23 am and again at 10.27 am. These calls were of short duration. At 11.40 am there was a short call from Shayne’s phone to Banjanin’s phone. I think it reasonable to infer that these were all either very short calls or that voicemail messages were left. But at 11.16 am there was a nine minute call from John to Banjanin. That was followed at 11.31 am by an 18 minute call from John to Mott. This pattern is consistent with Banjanin relaying Felix’s requests to John, and John in turn giving instructions to Mott for preparation of the agreement. During the course of the early afternoon there were also numerous calls recorded from Banjanin to Felix and from Banjanin to John. There were also a number of calls between about 2 pm and 2.30 pm between Banjanin’s phone and Bill’s phone, although it is quite possible (indeed,

I think it likely) that John was using Bill’s phone during that period. There were enough calls backwards and forwards between Banjanin and John, interspersed with numerous calls from Banjanin to Felix, to satisfy me that this pattern was consistent with Banjanin relaying information back and forth between Felix and John about what was to be contained in the agreement.
[31]Exhibits 77 and 100.

Nothing turns on the differences in detail concerning the attendance at Mott’s office to collect the draft agreement.

I have already indicated that I generally accept Mr Colville’s evidence about what transpired in his office. Mr Colville was a prudent and diligent solicitor. I accept that he asked for the weekend to peruse the documentation. I also consider it likely that Banjanin said that the documentation needed to be signed that evening and is likely to have mentioned financiers in that context. Banjanin had a personal interest in having the matter finished; it was late on a Friday afternoon and he had already spent considerable time with Felix and in the to-and-fro with John. But I think it was also likely that John had conveyed to Banjanin a need for the documentation to be completed for the purposes of arranging finance. Apart from anything else, given the protracted history of the dealings, John would have seen this as a way of impelling matters to finality. But again, from Felix’s perspective, it did not matter even if Banjanin was saying that the documents were needed urgently to prevent foreclosure by the financiers and to get the boys out of trouble, because Felix said he did not believe any such statements to be true.

Otherwise, I accept the evidence of Mr Colville and Banjanin as to the events which transpired in Mr Colville’s office. Mr Colville did explain each clause in detail and Felix did give instructions to make amendments to the agreement. Each of the amendments considerably improved Felix’s position under the agreement, not least by raising the weekly allowance from $1,000 to $1,250 and recalibrating in Felix’s favour, the proportion of the interests held by Felix, John and Bill in the Logan Road properties. The indemnities which were included in the agreement on Felix’s instructions were also palpably to his benefit. There was none of the noise and shouting which Felix described. As amendments were made, Banjanin left the room to telephone John. Felix did become agitated when dealing with clauses with which he disagreed, but nevertheless gave instructions for their amendment. I consider that what Mr Colville saw by way of Felix’s agitation was what I observed of Felix when he was giving some of his more colourful evidence. Felix, as a veteran businessman with a lifetime of experience, could not possibly have thought that he was signing a guarantee, particularly in view of Mr Colville’s careful explanation of each of the clauses of the document. Felix’s evidence when challenged on this point, in the context of the amendments he instructed Mr Colville to make, was evasive and not credible. Banjanin did not repeatedly shout at Felix demanding that he sign the agreement. In fact, Mr Colville did not hear

Banjanin say anything to Felix. It is also clear that, despite Mr Colville’s two warnings, it was Felix who deliberately decided to sign the May Agreement containing the amendments he had requested (all being amendments for his own financial benefit).

It is also, in my judgment, clear that the catalyst for Felix seeking to resile from the agreement he had signed was Marcia’s “hysterical” reaction to the news he gave her when he was dropped home that evening. I have already noted the consequences of Felix’s decision not to call Marcia to give evidence on this point. I accept, on the basis of the telephone records, that Felix informed at least Bill of his change of heart that evening, and that this provoked the outburst from Bill which was recorded in the note written by Marcia. A suggestion that this conversation occurred on 28 May is not supported by reference to the telephone records. It is, however, unnecessary to make further findings with respect to Felix’s conduct in seeking to resile from the May Agreement he signed, because no case was advanced on his behalf on reliance of his change of mind.

Felix seeks to avoid the May Agreement

Counsel for Felix contended that the May Agreement ought be set aside because:

(a)it was an unconscientious dealing; or
(b)Felix was subject to undue influence by John.

In support of these arguments, Felix’s counsel pointed to a number of factors which were said to support the setting aside of the agreement. These factors were:

(a)the relationship between Felix and John, with particular reference to Felix’s age and state of health, and the fact that John had for many years effectively managed the family’s business affairs;
(b)the allegations of fraudulent conduct against John by reason of the alleged forgeries (although in light of my findings above, I give no weight to this factor);
(c)a desire for Felix to have “a house of his own”;
(d)the hostile nature of the relationships within the Creswick family;
(e)Felix’s increasing isolation, both personal and financial, from the rest of the Creswick family;
(f)Felix’s state of physical and mental health;
(g)Felix’s assertions concerning the method by which the execution of the May Agreement was procured (although, in view of the findings I have made above, much of the sting in this aspect of the argument has been diluted);
(h)the alleged “improvidence” of the May Agreement from Felix’s perspective. In this regard much emphasis was laid on what Felix was “giving up” under the terms of the May Agreement. On the other hand, no credit was given either for the value of the cash and property which Felix was to receive under the agreement or for the very significant sums which Felix had received through the family business over many years. In this regard, it is sufficient again to refer to Felix’s receipt of more than $300,000 over a relatively short period of time from the Zupps lease.

Felix’s side did not argue this aspect of the case on the basis of common law duress. Rather, it was submitted that the claim to specifically enforce the May Agreement should be rejected for these reasons:

“(a)First, the May agreement was the result of the unconscientious taking advantage of Felix by John and Bill when he was in a position of special disadvantage in relation to them;
(b)Secondly, the May agreement was procured by undue influence, being a result of duress applied to Felix such that his entry into it cannot be described as the result of the free, voluntary and independent exercise of his will.”

As to the first of these arguments, it is appropriate to cite the well-known passage in the judgment of Fullager J in Blomley v Ryan,[32] in which his Honour said:

“The circumstances adversely affecting a party, which may induce a court of equity either to refuse its aid or to set a transaction aside, are of great variety and can hardly be satisfactorily classified. Among them are poverty or need of any kind, sickness, age, sex, infirmity of body or mind, drunkenness, illiteracy or lack of education, lack of assistance or explanation where assistance or explanation is necessary. The common characteristic seems to be that they have the effect of placing one party at a serious disadvantage vis-a-vis the other. It does not appear to be essential in all cases that the party at a disadvantage should suffer loss or detriment by the bargain. ... But inadequacy of consideration, while never of itself a ground for resisting enforcement, will often be a specially important element in cases of this type. It may be important in either or both of two ways – firstly as supporting the inference that a position of disadvantage existed, and secondly as tending to show that an unfair use was made of the occasion.”

[32](1956) 99 CLR 362 at 405.

An unconscientious dealing does not occur, however, simply because parties are in unequal bargaining positions, or even merely because of one party suffering from some form or degree of infirmity or disability. In Commercial Bank of Australia v Amadio,[33] Mason J,[34] having quoted this passage from Blomley v Ryan, emphasised that the word “disadvantage” needs to be qualified by the adjective “special” in order “to disavow any suggestion that the principle applies whenever there is some difference in the bargaining power of the parties and in order to emphasise that the disabling condition or circumstance is one which seriously affects the ability of the innocent party to make a judgment as to his own best interests, when the other party knows or ought to know of the existence of that condition or circumstance and of its effect on the innocent party” (emphasis added).
[33](1983) 151 CLR 447.
[34]At 462.

Unlike the circumstances in Louth v Diprose,[35] to which I was also referred by Felix’s counsel, I do not consider that the circumstances of the execution of the

May Agreement by Felix were marked by some false sense of crisis which had been manufactured by John. As I have found above, it was Felix who, through Banjanin, initiated the events which led to the signing of the May Agreement. As far as Felix was concerned, there could have been no sense of crisis by reason of financial pressure on John; Felix said that he did not believe statements to the effect that the financiers were going to foreclose on John and Bill and that the boys were in trouble.
[35](1992) 175 CLR 621.

Nor do I consider that the May Agreement represented an improvident transaction from Felix’s perspective. I have already mentioned above the fact that Felix ignores the significant financial benefits he had obtained from the family business over many years, including the years immediately preceding the execution of the

May Agreement. On any view, the May Agreement provided for Felix to receive a considerable value of cash and property. The fact that a large part of the lump sum being paid to Felix was to be applied by Felix in satisfaction of the obligations he owed Marcia under the settlement agreement he had reached with her is hardly a matter which can be visited upon John and Bill. That is the price that Felix agreed to pay to Marcia as a consequence of the failure of their relationship.

Nor do I consider that Felix was under a “special disadvantage” in relation to John. Felix may have been of advanced years, but he was a sharp businessman. He used solicitors to his advantage, when required. He was not backwards in making extravagant claims. Importantly, when the final terms of the May Agreement were being negotiated and settled, Felix secured for himself even more advantages under the agreement than had been previously provided for. His conduct in Mr Colville’s office in securing an even better deal for himself indicates that he was not suffering from any condition which seriously affected his ability to make a judgment as to his own best interests.

I would, therefore, reject the argument that the May Agreement ought be set aside as an unconscientious dealing between Felix and John.

This is also, in my view, not a case in which it can successfully be argued that the May Agreement ought be set aside on the basis of undue influence. The doctrine of undue influence provides for a remedy in equity in circumstances where one party has made improper use of an ascendancy over the other party to obtain a benefit that it would be unconscientious to retain.[36] As Felix’s counsel properly submitted, the remedy focuses on the relationship of the parties at the time of the transaction in question so as to identify whether that relationship impaired the judgment or free will of the weaker party. The remedy does not lie simply because the transaction in question was improvident, unjust or lacking in consideration. It provides relief for a party whose intention to enter a transaction was the result of a relationship of confidence, control, domination, influence or some other form of superiority.[37]
[36]Louth v Diprose (1992) 175 CLR 621; Johnson v Buttress (1936) 56 CLR 113.
[37]Brusewitz v Brown [1923] NZLR 1106 at 1109.

Counsel for Felix argued that the facts of this case supported a finding that John, as the stronger party, had exerted actual influence over Felix, as the weaker party. Much of that submission, however, depended on Felix having the benefit of findings of fraudulent forgery against John and, for the reasons that I have set out length above, that argument has been rejected. Similarly, the arguments advanced on behalf of Felix seeking to demonstrate actual undue influence in the events surrounding the execution of the May Agreement depend on an acceptance of Felix’s version of what occurred. It will be clear from what I have written above that this position cannot be maintained.

It was alternatively argued that the nature of Felix’s and John’s antecedent relationship was such that Felix was an unequal weaker party who was influenced by the relationship in his decision to enter into the transaction. It was conceded on behalf of Felix that the relationship between Felix and John was not within any of the well-established categories of relationship which are identified as giving rise to the presumption of undue influence (including the relationship between solicitor and client, physician and patient, and parent and child, but not, relevantly, as between child and parent). These categories are, however, not fixed.[38]
[38]See Johnson v Buttress (1936) 56 CLR 113 per Lathan CJ at 119.

The principle for invocation of the doctrine of undue influence in this context was, and remains, the authoritative statement by Dixon J in Johnson v Buttress:[39]

“The basis of the equitable jurisdiction to set aside an alienation of property on the ground of undue influence is the prevention of an unconscientious use of any special capacity or opportunity that may exist or arise affecting the alienor’s will or freedom of judgment in reference to such a matter. The source of power to practice such a domination may be found in no antecedent relation but in a particular situation, or in the deliberate contrivance of the party. If this be so, facts must be proved showing that the transaction was the outcome of such an actual influence over the mind of the alienor that it cannot be considered his free act.”

[39](1936) 56 CLR 113 at 134.

After referring to the notion that the categories of relationship in which the principle might apply is not fixed, Dixon J observed that the doctrine rests upon a principle:[40]

“It applies whenever one party occupies or assumes towards another a position naturally involving an ascendancy or influence over that other, or a dependence or trust on his part. One occupying such a position falls under a duty in which fiduciary characteristics may be seen. It is his duty to use his position of influence in the interest of no one but the man who is governed by his judgment, gives him his dependence and entrusts him with his welfare. When he takes from that man a substantial gift of property, it is incumbent upon him to show that it cannot be ascribed to the inequality between them which must arise from his special position. He may be taken to possess a peculiar knowledge not only of the disposition itself but of the circumstances which should affect its validity; he has chosen to accept a benefit which may well proceed from an abuse of the authority conceded to him, or the confidence reposed in him; and the relations between him and the donor are so close as to make it difficult to disentangle the inducements which led to the transaction. These considerations combine with reasons of policy to supply a firm foundation for the presumption against a voluntary disposition in his favour. But except in the well-recognized relations of influence, the circumstances relied upon to establish an antecedent relation between the parties of such a nature as to necessitate a justification of the transaction will be almost certain to cast upon it at least some measure of suspicion that active circumvention has been practised. This often will be so even when the case falls within the list of established relations of influence. Because of the presence of circumstances which might be regarded as presumptive proof of express influence, cases outside the list but nevertheless importing a special relationship of influence sometimes are treated as if they were not governed by the presumption but depended on an inference of fact. ... Further, when the transaction is not one of gift but of purchase or other contract, the matters affecting its validity are necessarily somewhat different. Adequacy of consideration becomes a material question. Instead of inquiring how the subordinate party came to confer a benefit, the court examines the propriety of what wears the appearance of a business dealing. These differences form an additional cause why cases which really illustrate the effect of a special relation of influence in raising a presumption of invalidity are often taken to decide that express influence which is undue should be inferred from the circumstances.”

[40](1936) 56 CLR 113 at 134-136.

This is not a case, in my view, in which it can properly be said that the relationship between John and Felix gave rise to a presumption of undue influence.

I acknowledge that Felix was considerably older than John and suffered health and emotional issues. A significant contributor to the emotional state in which Felix found himself leading up to the execution of the May Agreement, however, had nothing to do with John; it was, rather, by reason of the difficulties which Felix faced as a consequence of the troubles in his relationship with Marcia. Felix was quite capable of dealing robustly with John and was canny enough to enlist professional assistance when required. True it is that John was effectively the manager of the Creswick family business affairs, but that of itself did not put him in a position of ascendancy over Felix. On the contrary, Felix had for many years enjoyed the benefits of John having assumed that position. I decline to find that John was in the necessary position of ascendancy over Felix such as to give rise to a relationship in which undue influence would be presumed.

Accordingly, I reject the arguments advanced on behalf of Felix for the setting aside of the May Agreement.

The claim for rectification

John’s side claims that the May Agreement ought to be rectified such that references in the May Agreement to the Logan Road properties ought to be read as including references to the Crump Street properties.

The only evidence in support of this rectification claim was from each of John, Bill and Shayne who said, in effect, that there was a convention or practice within the Creswick family that when one spoke of “Holland Park”, one was referring to both the Logan Road properties and the Crump Street properties. This evidence was not, however, independently corroborated. In view of my findings as to the credit of each of these witnesses, I am not prepared to accept this evidence. That finding is sufficient to dispose of the rectification claim.

For completeness, however, I should additionally note that the evidence before me discloses that at all times prior to the execution of the May Agreement, the only instructions given by John to Mott in connection with the drafting of that agreement encompassed details of the Logan Road properties. Mott was not provided with any detail concerning the Crump Street properties until well after the agreement had been signed.

Conclusions on the May agreement

It follows from my findings above that I conclude that the May Agreement, in the form executed by Felix on 25 May 2007 and by the other parties on 26 May 2007 was, and remains, a binding agreement between the parties.

In light of this conclusion, it is unnecessary for me to consider the plaintiff’s alternative case concerning constructive and resulting trusts.

Other relief claimed by John

John’s side also claimed:

(a)for a declaration that Felix’s one third interest in the property at 503 Logan Road is held on trust for John and/or Tabtill; and
(b)for the repayment of some $140,945.77 which it was said was money wrongly paid to Felix and which ought to have been paid to Tabtill.

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.

In those circumstances, it is appropriate to refuse the relief sought by John’s side in connection with the 503 Logan Road property and the claim for repayment of $140,945.77.

Felix’s other claims

Felix also advanced alternative claims that there should be an accounting to him of what he asserted were partnerships entered into between him and John with respect to property development and with respect to the businesses.

As the evidence fell from Felix, however, these claims can really only faintly be advanced, and cannot succeed. Apart from anything else, not only are the objective indicia of the partnerships contended for by Felix not supported even by Felix’s own evidence, the claims fly in the face of the business structures under which the parties operated for many years. These structures were reflected in the books of account and tax returns for the members of the family and the associated entities which were carefully prepared and submitted by their accountant, West. One would certainly have expected West to have known if Felix and John were in the partnerships contended for. West’s evidence, which I accept, was quite to the contrary.

Felix also advanced a case to the effect that John owed Felix fiduciary duties independent of the dealership and property partnerships, and that John breached these duties by the forgeries which Felix alleged were committed by John. In view of my findings with respect to the forgery case, however, it is unnecessary to make any further findings on this argument.

I should say that it also follows from my findings with respect to the forgery case that Felix’s contention that the transfer of shares initially registered in Felix’s name in Tabtill No 2 to John ought be undone, also falls away.

It also necessarily follows that I reject Felix’s claim to be reimbursed in respect of the Wellington Point subdivision. His evidence about an agreement that he be paid $1 million and be provided with a car was not only uncorroborated, he gave quite contradictory evidence on this point.

Other matters

Despite the length of this judgment, I have sought to limit my recitation of evidence to those matters which I considered directly relevant to the issues which have been determined. There was, however, more – much more – evidence put before me, both orally and in documentary form, but I do not consider it either necessary or desirable to traverse that evidence here. For example, both sides obtained expert accounting evidence, and their accountants gave evidence concurrently before me. The report by the accountants called by John’s side, Ernst & Young, runs to five lever arch folders (including annexures) alone. There is no need for me, in view of my findings, to have reference to those or the other expert accounting reports and evidence put before me. I should say that I am not criticising the parties’ advisers for obtaining these reports. On the contrary, they would have come to the fore had it been necessary to go into the alternative trust and partnership claims advanced by John and Felix. But in view of my findings, that evidence is now otiose.

A significant amount of evidence was also put before me concerning the dealings between the parties in the months after the May Agreement was signed. This included evidence concerning attendances on Felix while he was in hospital to deliver transfer documents required under the May Agreement, increasingly aggressive correspondence between the parties’ solicitors, the tendering of performance by John’s side under the May Agreement and the incident in

December 2007 when John and Shayne turned up at 11 Seahaven Court. This was the incident to which I have referred to above, and which was the catalyst for an application being made that evening by Felix’s solicitor for urgent injunctive relief.

Each side, and particularly Felix’s side, relied on this evidence to a greater or lesser degree to seek to impeach the credibility of the other side (and their advisers).

In view of the findings I have already made, however, I do not consider it necessary to discuss these matters any further.

One of the unfortunate aspects of this case was the degree of frank acrimony which permeated the dealings between the parties’ solicitors for a considerable period of time prior to the trial. Thankfully, I was insulated from this to a large degree at trial by the responsible manner in which counsel for both parties conducted the hearing. That is not to say that the trial was pleasant; far from it. To pick up on an observation I made in the course of the trial, each party can be well satisfied that every skerrick of dirty Creswick laundry was publicly aired. That does not mean, however, that I need to dignify all of those matters by unnecessarily recording them in this judgment.

I should also mention that Felix made serious assertions in the course of evidence and in submissions concerning Mott’s credibility and professionalism. Mott left himself open for this criticism – it became apparent that, in many respects, Mott acted as little more than John’s cipher. When explaining correspondence he had sent to Connor Hunter in 2006, Mott said that John would tell him the response and Mott would “just tidy up his verbiage for the purposes of putting it in legal form”. He said, “I just mouthed what he told me to say”, and agreed with the description that he was “a hired gun”.

Mott was also attacked for his conduct in the urgent injunction hearing on

13 December 2010. Initially that attack (made in the course of cross-examination of John) was to the effect that Mott had misled the Court about whether Shayne was at the 11 Seahaven Court property. A subsequent examination of the transcript of that hearing, however, revealed that the factual premise for this attack was wrong.

When Mott was cross-examined, a further attack was made on him to the effect that he had told the Court that there had been no attempts by John to evict Felix from the property when, in fact, in 2006, Mott had written several letters to Felix’s then solicitors demanding possession of the property. Mott conceded that he had, in fact, misinformed the judge on 13 December 2007 in this regard, but explained it by saying that he was appearing before the Court on very short notice and with no time to prepare (which was true), that his responses to the Court were in the context of the events since the signing of the May Agreement, that the events of 2007 were the subject of his attention, and that he simply did not turn his mind to what had happened in 2006.

In fairness to Mott, the subject exchange with Philippides J on 13 December 2007 came in the course of argument when her Honour asked Mott whether there was any difficulty with Felix remaining in the property for the immediate future, to which Mott responded, “The applicant [Felix] has never been required to move out”, and he then went on to give her Honour a précis of the events of the previous day or so. I accept that, in that context, Mott was intending to refer to the fact that there had not been any recent or proximate demands made for Felix to move out. Having heard Mott give evidence and be seriously challenged on this point, I am satisfied that he did not deliberately set out to deceive the Court on 13 December 2007.

Mott was placed in the difficult position of appearing on an urgent application as a consequence of the completely unnecessary conduct of John and Shayne in turning up on Felix and Marcia’s doorstep.

Finally, I note that just prior to the commencement of this trial, Felix’s side indicated that they would not be pursuing the case pleaded against Jayne. That claim will accordingly be dismissed.

Relief

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.

There will obviously be consequential orders required, including with respect to the removal of caveats which John’s side have placed over properties affected by the May Agreement. I will hear from counsel as to the appropriate orders for removal which need to be made for the purposes of giving effect to the decree for specific performance.

At the end of oral argument, Felix’s counsel, anticipating that the May Agreement might be upheld, invited John’s side to offer undertakings to the Court to the effect that Shayne undertook not to interfere with Felix’s quiet possession of the

11 Seahaven Court property for the remainder of Felix’s life and that John undertook not to exercise the power of attorney contained in clause 12 of the

May Agreement so as to effect the interest of Felix in 11 Seahaven Court for the remainder of Felix’s life.

No response to that invitation has, so far as I am aware, come from John and Shayne.

It is, on any view of the May Agreement, abundantly clear that the parties intended that Felix should have that property as his home for the rest of his life. Recital E to the agreement stated:

“Felix is concerned to secure for himself a place of residence for the remainder of his natural life.”

There was also, on the evidence, enough in the previous conduct of John and Shayne, and indeed from Shayne’s admitted enmity of Felix, to warrant Felix’s concerns about the security of his ongoing tenure in 11 Seahaven Court.

As I have said, I am not aware as to whether there was a response to Felix’s invitation. It may be that it will be unnecessary for Felix to pursue this aspect. In the circumstances, then, it seems to me that the appropriate thing is simply to give Felix liberty to apply to me for permanent injunctive relief against John and Shayne concerning his occupation of 11 Seahaven Court for the remainder of his life.

Orders

There will be the following orders:

1.That the agreement made between the first, second, third and fourth plaintiffs and the defendant dated 26 May 2007 be specifically performed and carried into effect.
2.That counsel for the parties bring in such orders as may be required to give effect to the decree of specific performance, including but not limited to such orders as may be required for the removal of caveats.

3.That the defendant has liberty to apply to me for permanent injunctive relief against the first plaintiff and the third plaintiff in respect of the defendant’s occupation of the property situated at 11 Seahaven Court, Raby Bay for the remainder of his life.
4.The plaintiffs’ claim is otherwise dismissed.
5.The defendant’s counterclaim is otherwise dismissed.
6.I will hear the parties as to costs.

CITATION:	Creswick and Ors v Creswick [2010] QSC 339
PARTIES:	JOHN FRANCIS CRESWICK (first plaintiff/first defendant by counterclaim) and WILLIAM GERARD CRESWICK (second plaintiff/second defendant by counterclaim) and SHAYNE MARISE CRESWICK (third plaintiff/third defendant by counterclaim) and JANE VERONICA CRESWICK (fourth plaintiff/fourth defendant by counterclaim) and TABTILL PTY LTD ACN 010 408 545 AS TRUSTEE FOR THE JOHN CRESWICK FAMILY TRUST (fifth plaintiff) and TABTILL PTY LTD ACN 010 408 545 (fifth defendant by counterclaim) and TABTILL NO. 2 PTY LTD ACN 098 424 741 (sixth defendant by counterclaim) and TABTILL NO. 3 PTY LTD ACN 106 070 948 (seventh defendant by counterclaim) and TABTILL NO. 4 PTY LTD ACN 106 071 096 (eighth defendant by counterclaim) and T2 PROJECTS PTY LTD ACN 109 792 707 (ninth defendant by counterclaim) and JAYNE EMMA CRESWICK (tenth defendant by counterclaim) v FELIX ANTHONY CRESWICK (defendant/plaintiff by counterclaim)
FILE NO:	BS 10963 of 2007
DIVISION:	Trial Division
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	13 September 2010
DELIVERED AT:	Brisbane
HEARING DATE:	7 September 2009 – 11 September 2009; 14 September 2009 – 18 September 2009; 21 September 2009 – 25 September 2009; 28 September 2009 – 2 October 2009; 8 October 2009; and further submissions on 6 November 2009 and 9 November 2009.
JUDGE:	Daubney J
ORDER:	1. That the agreement made between the first, second, third and fourth plaintiffs and the defendant dated 26 May 2007 be specifically performed and carried into effect. 2. That counsel for the parties bring in such orders as may be required to give effect to the decree of specific performance, including but not limited to such orders as may be required for the removal of caveats. 3. That the defendant has liberty to apply to me for permanent injunctive relief against the first plaintiff and the third plaintiff in respect of the defendant’s occupation of the property situated at 11 Seahaven Court, Raby Bay for the remainder of his life. 4. The plaintiffs’ claim is otherwise dismissed. 5. The defendant’s counterclaim is otherwise dismissed. 6. I will hear the parties as to costs.
CATCHWORDS:	CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – PARTIES – GENERAL PRINCIPLES – FORGERY – where the defendant counterclaims that the first plaintiff has forged his signature on a great number of financial documents, contracts for the sale of land and real property transfers – where the disputed signature appeared on many documents, many of which were of benefit only to the plaintiffs and the plaintiffs’ companies - where the first plaintiff denied signing the disputed signature on the documents – where evidence was led by forensic document examiners and many persons who were said to have witnessed the signatures – whether the defendant has proved that the first plaintiff has forged his signature EQUITY – GENERAL PRINCIPLES – UNCONSCIONABILITY, UNCONSCIONABLE DEALINGS AND OTHER FORMS OF EQUITABLE FRAUD – GENERALLY – where the first, second, third and fourth plaintiffs and the defendant entered into an agreement following the break down of their business and personal relationships – where the first plaintiff and the second plaintiff are the sons of the defendant – where the defendant contends that the agreement ought be set aside because it was unconscientious dealing– where the defendant contends that he was in a position of special disadvantage in relation to the first plaintiff by reason of the nature of their relationship, his physical and mental health, his isolation from his family and an alleged improvidence of the agreement from his perspective – whether the agreement should be set aside on the basis of unconscientious dealing EQUITY – GENERAL PRINCIPLES – UNDUE INFLUENCE AND DURESS – PRESUMPTION OF UNDUE INFLUENCE FROM RELATIONSHIP OF PARTIES – GENERALLY – where the first, second, third and fourth plaintiffs and the defendant entered into an agreement following the break down of their business and personal relationships – where the first plaintiff and the second plaintiff are the sons of the defendant – where the defendant contends that the agreement ought be set aside because he was subject to undue influence by the first plaintiff – where the relationship between the parties, that of son and father, does not fall in an established category giving rise to a presumption of undue influence – whether the first plaintiff has made improper use of an ascendancy over the defendant to obtain a benefit – whether the agreement should be set aside on the basis of undue influence EQUITY – GENERAL PRINCIPLES – MISTAKE – EQUITABLE REMEDIES – RECTIFICATION – EVIDENCE – where the first, second, third and fourth plaintiffs and the defendant entered into an agreement following the break down of their business and personal relationships – where this agreement provided for the transfer of certain properties – where the agreement referred to the “Logan Road properties” – where the plaintiffs contend that agreement ought to be rectified so that the reference to the “Logan Road properties” be read as including reference to the “Crump Street properties” – where the only evidence in support of this claim was from the first and second plaintiffs – where the plaintiffs’ credibility was in doubt – where there was no independent evidence to corroborate this – whether the agreement ought to be rectified EVIDENCE – BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE – GENERALLY – CREDIBILITY AND WEIGHT – PARTY'S FAILURE TO GIVE OR CALL EVIDENCE – where the partner of the defendant was not called to give evidence – where counsel for the plaintiffs submitted that there were a number of areas of the defendant’s case where it might reasonably have been expected that the defendant’s partner could have, and should have, given evidence – where counsel for the defendant submitted that this witness could not have given admissible evidence relevant to issues in the trial, that her evidence would have been collateral and would have gone only to credit – whether a Jones v Dunkel inference that this witness could give no evidence that would assist the defendant in respect of these areas should be made in the circumstances Evidence Act 1977 (Qld), s17 Property Law Act 1974 (Qld), Part 19 Succession Act 1981 (Qld) Trade PracticesAct 1974 (Cth) Workers Compensation and Rehabilitation Act 2003 (Qld) Blomley v Ryan (1956) 99 CLR 362, cited Briginshaw v Briginshaw (1938) 60 CLR 336, applied Brusewitz v Brown [1923] NSLR 1106, cited Commercial Bank of Australia v Amadio (1983) 151 CLR 447, cited Cook’s Constructions P/L v Stork Food Systems Aust P/L [2008] QSC 179, cited Jeans v Cleary [2006] NSWSC 647, cited Johnson v Buttress (1936) 56 CLR 113, cited Jones v Dunkel (1959) 101 CLR 298, cited Louth v Diprose (1992) 175 CLR 621, distinguished Neat Holdings Pty Limited v Karajan Holdings Pty Limited (1992) 67 ALJR 170, applied Payne v Parker [1976] 1 NSWLR 191, applied
COUNSEL:	PH Morrison QC with K Howe and C Heyworth-Smith for the plaintiffs J Gallagher QC with LF Kelly SC and J Otto for the defendant
SOLICITORS:	DLA Phillips Fox for the plaintiffs Hopgood Ganim Lawyers for the defendant