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…
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- AGLC
- Creswick v Creswick [2010] QSC 339
- Case
- [2010] QSC 339
- Decision Date
CaseChat Overview and Summary
The court considered the evidence of forensic document examiners and witnesses who claimed to have observed the defendant sign the disputed documents. The court found that the evidence did not establish forgery on the part of the first plaintiff. The court also found that the defendant had not proved unconscientious dealing, undue influence, or mistake. The court concluded that the agreement was valid and enforceable, and the plaintiffs' claim for rectification was dismissed due to a lack of credible evidence. Finally, the court considered the failure of the defendant's partner to give evidence and found that no Jones v Dunkel inference should be drawn in the circumstances.
The court ordered the specific performance of the agreement and directed the parties to bring in orders to effect the decree of specific performance, including the removal of caveats. The defendant was granted liberty to apply for permanent injunctive relief against the first and third plaintiffs regarding the occupation of a property at 11 Seahaven Court, Raby Bay. The plaintiffs' claim and the defendant's counterclaim were dismissed. The court reserved costs for later determination.
Orders
Orders of the court
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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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