Creswick v Creswick; Tabtill Pty Ltd v Creswick - [2011] QCA 66

SUPREME COURT OF QUEENSLAND

CITATION:

Creswick v Creswick & Ors; Tabtill Pty Ltd & Ors v Creswick [2011] QCA 66

PARTIES:

TABTILL PTY LIMITED
ACN 010 408 545
(appellant/first cross-respondent)
JOHN FRANCIS CRESWICK
(second cross-respondent)
WILLIAM GERARD CRESWICK
(third cross-respondent)
SHAYNE MARIE CRESWICK
(fourth cross-respondent)
JANE VERONICA CRESWICK
(fifth cross-respondent)
TABTILL NO 2 PTY LTD
ACN 098 424 741
(sixth cross-respondent)
TABTILL NO 3 PTY LTD
ACN 106 070 848
(seventh cross-respondent)
TABTILL NO 4 PTY LTD
ACN 106 071 096
(eighth cross-respondent)
T2 PROJECTS PTY LTD
ACN 109 792 707
(ninth cross-respondent)
v
FELIX ANTHONY CRESWICK
(respondent/cross-appellant)

FILE NO/S:

Appeal No 11039 of 2010
SC No 10963 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

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

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

14 April 2011

DELIVERED AT:

Brisbane

HEARING DATES:

24 March 2011, 14 April 2011

JUDGE:

Fraser JA

ORDERS:

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

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

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

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

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – WHEN GRANTED – where the trial judge made a decree of specific performance – where the decree required Felix Creswick to transfer his interest in a number of properties to the cross-respondents in consideration of a lump sum payment and regular weekly payments – where there is risk that the cross-respondents may sell or mortgage the properties – where the cross-respondents contended they would be prejudiced by a stay of the decree – where Felix Creswick contended that compliance with the decree would be complex and expensive – where none of the parties provided reliable evidence of their respective financial positions – where Felix Creswick offered an undertaking to expedite the appeal – where the cross-respondents argued that a stay…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] QCA 66
Decision Date: 14 April 2011

CaseChat Overview and Summary

In the matter of Creswick v Creswick; Tabtill Pty Ltd v Creswick, the dispute involved the enforceability of a decree of specific performance that required Felix Creswick to transfer his interest in various properties to the cross-respondents in return for a lump sum and regular payments. The case was heard in the Queensland Court of Appeal. Felix Creswick appealed against certain orders of the trial judge, while the cross-respondents argued against a stay of the decree and the competence of Felix's cross appeal. The central legal issues revolved around whether Felix's cross appeal was competent, whether an extension of time should be granted for the appeal, and whether a stay of the decree should be granted pending the outcome of the appeal.

The court held that Felix's notice of cross appeal was competent despite being filed outside the prescribed time limit, as it was filed shortly after the expiry of the time for filing a notice of appeal. The court reasoned that the phrase "decision appealed from" in rule 754 of the Uniform Civil Procedure Rules 1999 (Qld) did not limit the scope of a cross appeal to the matters raised in the notice of appeal. The court granted an extension of time for Felix to appeal, considering that the delay was not deliberate and that Felix's prospects of success in the appeal were not negligible. The court also granted a conditional stay of the decree pending the determination of the appeal, requiring Felix to file and serve his consent to certain conditions and to diligently prosecute his appeal.

The court refused the cross-respondents' application for a stay of a procedural order directing the parties to bring in proposed orders giving effect to the decree. The court found that Felix's draft orders did not accurately reflect the terms of the agreement being enforced and, therefore, did not warrant a stay. The costs of various applications were reserved for further determination.

Orders

Orders of the court

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

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

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

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Creswick v Creswick & Ors; Tabtill Pty Ltd & Ors v Creswick [2011] QCA 66
PARTIES:	TABTILL PTY LIMITED ACN 010 408 545 (appellant/first cross-respondent) JOHN FRANCIS CRESWICK (second cross-respondent) WILLIAM GERARD CRESWICK (third cross-respondent) SHAYNE MARIE CRESWICK (fourth cross-respondent) JANE VERONICA CRESWICK (fifth cross-respondent) TABTILL NO 2 PTY LTD ACN 098 424 741 (sixth cross-respondent) TABTILL NO 3 PTY LTD ACN 106 070 848 (seventh cross-respondent) TABTILL NO 4 PTY LTD ACN 106 071 096 (eighth cross-respondent) T2 PROJECTS PTY LTD ACN 109 792 707 (ninth cross-respondent) v FELIX ANTHONY CRESWICK (respondent/cross-appellant)
FILE NO/S:	Appeal No 11039 of 2010 SC No 10963 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Application for Stay of Execution Application for Extension of Time Application to Strike Out
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	14 April 2011
DELIVERED AT:	Brisbane
HEARING DATES:	24 March 2011, 14 April 2011
JUDGE:	Fraser JA
ORDERS:	The notice of cross appeal filed on 27 October 2010 by stand as a notice of appeal and the time for appealing is extended as necessary for that purpose. the defendant 1. there be a stay of order number 1 made by Daubney J on 13 September 2010.until the determination of that appeal or further orderUpon the defendant by his senior counsel undertaking to file and serve upon the plaintiffs and defendants by counterclaim by 4.00 pm on 15 April 2011 the defendant’s consent to the order made by White J on 28 February 2008 being varied by the omission of the conditions in paragraphs 3(b) and (c) of that order, and upon the defendant undertaking by his senior counsel that he will diligently prosecute his appeal against orders made by Daubney J on 13 September 2010, 2. is refused.order number 2 made by Daubney J on 13 September 2010 The defendant’s application for a stay of 3. that the cross appeal stand as an appeal and that the time within which to appeal be extended for that purpose, are reserved.The costs of the defendant’s application filed on 1 February 2011, the cross-respondents’ application filed on 10 February 2011, and the defendant’s application for orders 4.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – WHEN GRANTED – where the trial judge made a decree of specific performance – where the decree required Felix Creswick to transfer his interest in a number of properties to the cross-respondents in consideration of a lump sum payment and regular weekly payments – where there is risk that the cross-respondents may sell or mortgage the properties – where the cross-respondents contended they would be prejudiced by a stay of the decree – where Felix Creswick contended that compliance with the decree would be complex and expensive – where none of the parties provided reliable evidence of their respective financial positions – where Felix Creswick offered an undertaking to expedite the appeal – where the cross-respondents argued that a stay…