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Tabtill Pty Ltd v Creswick

Tabtill Pty Ltd v Creswick

Case [2012] QCA 78 30 March 2012

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SUPREME COURT OF QUEENSLAND

CITATION:

Tabtill Pty Ltd v Creswick; Creswick v Creswick & Ors [2012] QCA 78

PARTIES:

In the “Tabtill Appeal”:

TABTILL PTY LTD AS TRUSTEE FOR THE JOHN CRESWICK FAMILY TRUST
(appellant)
v
FELIX ANTONIO CRESWICK
(respondent)

In the “Creswick Appeal”:

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

FILE NO/S:

Appeal No 11039 of 2010
SC No 10963 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeals – Further Orders

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

30 March 2012

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Fraser and White JJA, and Boddice J
Judgment of the Court

FURTHER ORDERS:

Tabtill Pty Ltd pay Felix Creswick’s costs of and incidental to Tabtill Pty Ltd’s appeal, to be assessed on the standard basis.1.

The respondents to Felix Creswick’s appeal pay Felix Creswick’s costs of and incidental to the trial (including any reserved costs), and of and incidental to that appeal, to be assessed on the standard basis.2.

Felix Creswick pay one-third of Tabtill Pty Ltd’s costs of and incidental to the cross-appeal.3.

The application by the respondents to Felix Creswick’s appeal for an indemnity certificate under s 15 of the Appeal Costs Fund Act 1973 is refused.4.

Order 6 made on 23 December 2011 is amended by omitting the words “listed in Annexure D to” and substituting the words “included in”.5.

Order 8 made on 23 December 2011 is amended by substituting “Jane Veronica Creswick” for “John Francis Creswick” where the latter name appears for the second time.6.

Order 10 made on 23 December 2011 is amended by adding the following text: “, and for the purpose of taking such accounts and making such further ancillary orders as are appropriate and consistent with these orders”.7.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – COSTS – where the respondent in the Tabtill Appeal and appellant/cross respondent in the Creswick Appeal argued that an award for costs should be made in his favour against the appellant in the Tabtill Appeal and the respondents/cross appellants in the Creswick Appeal – where the respondent in the Tabtill Appeal and appellant/cross respondent in the Creswick Appeal enjoyed substantial success on appeal – whether an award of costs should be made in favour of the respondent in the Tabtill Appeal and appellant/cross respondent in the Creswick Appeal

APPEAL AND NEW TRIAL – APPEAL…

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.

Continue reading Tabtill Pty Ltd v Creswick

Details

AGLC: Tabtill Pty Ltd v Creswick [2012] QCA 78
Case: [2012] QCA 78
Decision Date: 30 March 2012

CaseChat Overview and Summary

Tabtill Pty Ltd, along with associated companies, brought an action against Creswick, claiming that he had forged a document. Creswick counterclaimed, alleging that Tabtill had made false and misleading statements. The matter was heard in the Supreme Court of Queensland, with the appeal subsequently being heard by the Court of Appeal. The key issue before the court was whether an award of costs should be made in favor of Creswick against Tabtill and its associated companies. The appeal also addressed whether the appellant should be awarded costs on an indemnity basis due to the substantial success on appeal regarding claims that represented a significant portion of the trial and appeal.

The court considered the substantial success enjoyed by Creswick on appeal and the critical assessment of the evidence provided by the trial judge. It was determined that the appeal's success was due to the court's findings of fact rather than merely correcting legal errors. Consequently, the court found that the trial judge had erred in law by failing to make sufficient findings of fact. The court held that it had the discretion to award an indemnity certificate under section 15 of the Appeal Costs Fund Act 1973 in favor of the respondents, except the first respondent, with respect to the forgery issue.

The court exercised its discretion and awarded an indemnity certificate in favor of the respondents to the Creswick Appeal, except the first respondent, in respect to the forgery issue. It was determined that the substantial success on appeal justified the award of costs on an indemnity basis. The court concluded that the respondents' success was due to the findings of fact, rather than merely correcting legal errors, and that the trial judge's critical assessment of their evidence did not prevent the award of costs on an indemnity basis. The appeal was allowed, and the costs were awarded in favor of Creswick against Tabtill and its associated companies.

Orders