Tabtill Pty Ltd v Creswick

Case [2011] QCA 381

SUPREME COURT OF QUEENSLAND

CITATION:

Tabtill Pty Ltd v Creswick; Creswick v Creswick & Ors [2011] QCA 381

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

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

23 December 2011

DELIVERED AT:

Brisbane

HEARING DATE:

1-2 August 2011

JUDGES:

Fraser and White JJA and Boddice J
Judgment of the Court

ORDERS:

1.    Dismiss Tabtill Pty Ltd’s appeal.

2.    Allow the appeal by Felix Antonio Creswick.

3.    Allow the cross appeal by John Francis Creswick, William Gerard Creswick, Shayne Marise Creswick, Jane Veronica Creswick, Tabtill Pty Ltd (ACN 010 408 545), Tabtill No 2 Pty Ltd (ACN 010 408 545), Tabtill No 3 Pty Ltd (ACN 106 070 848), Tabtill No 4 Pty Ltd (ACN 106 071 096),  T2 Projects Pty Ltd (ACN 109 792 707).

4.    Set aside the orders made below.

5.    Set aside the agreement made between John Francis Creswick, William Gerard Creswick, Shayne Marise Creswick, Jane Veronica Creswick and Felix Antonio Creswick dated 26 May 2007.

6.    Declare that the purported signature of Felix Antonio Creswick on each of those 105 documents listed in Annexure D to Exhibit 22 to the trial exhibits was affixed by John Francis Creswick without the authority of Felix Antonio Creswick.

7.    Declare that the transfer authority of Felix Antonio Creswick’s shares in Tabtill 2 to John Francis Creswick and William Gerard Creswick is null and void and order that John Francis Creswick and William Gerard Creswick do all things necessary to revest those shares in Felix Antonio Creswick.

8.    Order that caveats lodged by John Francis Creswick over the Holland Park properties being 905 Logan Road (Lots 1 and 3 on RP 38083, Lots 1 and 2 RP 46140 and Lot 1 on RP 51268 County of Stanley Parish of Yeerongpilly, Title References 16817020, 14851018 and 14853044), 909 Logan Road (Lot 2 on RP 51268 County of Stanley Parish of Yeerongpilly, Title Reference 15966057) and 911 Logan Road (Lots 5 and 6 on RP 38083, County of Stanley, Parish of Yeerongpilly, Title Reference 15871094) and by William Gerard Creswick and John Francis Creswick over 35 Sentinel Court (Lot 416 on SL 12471 County of Stanley Parish of Cleveland, Title Reference…

Continue reading Tabtill Pty Ltd v Creswick

Sign in free to access the full text

Details
AGLC
Tabtill Pty Ltd v Creswick [2011] QCA 381
Case
[2011] QCA 381
Decision Date

CaseChat Overview and Summary

In the case of Tabtill Pty Ltd v Creswick, the primary dispute centered around the alleged forgery of signatures by Felix Creswick on multiple documents, which were claimed to have been forged by his son, John Creswick. The case was heard in the Supreme Court of Queensland, Court of Appeal. The court had to determine whether Felix Creswick had proven the alleged forgery to the requisite standard and whether the agreement between the parties was valid and enforceable.

The legal issues before the court included whether Felix Creswick had established the forgery of his signatures to the Briginshaw standard, whether the trial judge appropriately assessed the evidence and findings of credit, and whether the agreement between the parties was voidable due to unconscionability, undue influence, or duress. Additionally, the court considered the issue of resulting trusts in relation to certain properties.

The Court of Appeal found that the trial judge did not err in his assessment of the evidence and the findings of credit. The court held that Felix Creswick had not met the Briginshaw standard for proving forgery. The Court of Appeal also determined that the agreement between the parties was not voidable on the grounds of unconscionability, undue influence, or duress. The court further held that the presumption of resulting trust was not raised and thus, no resulting trusts were ordered.

The final orders of the court were to dismiss Tabtill Pty Ltd’s appeal, allow the appeal by Felix Antonio Creswick, and allow the cross appeal by the other respondents. The court set aside the agreement made between the parties on May 26, 2007, and declared that the signatures on the disputed documents were affixed by John Francis Creswick without Felix Antonio Creswick’s authority. The court also ordered that Felix Antonio Creswick holds his interests in certain properties on trust for Tabtill Pty Ltd and remitted the proceedings to the Trial Division for further tracing of benefits obtained by Tabtill Pty Ltd and the respondents.

Orders

Orders of the court

1. Dismiss Tabtill Pty Ltd’s appeal.

2. Allow the appeal by Felix Antonio Creswick.

3. Allow the cross appeal by John Francis Creswick, William Gerard Creswick, Shayne Marise Creswick, Jane Veronica Creswick, Tabtill Pty Ltd (ACN 010 408 545), Tabtill No 2 Pty Ltd (ACN 010 408 545), Tabtill No 3 Pty Ltd (ACN 106 070 848), Tabtill No 4 Pty Ltd (ACN 106 071 096), T2 Projects Pty Ltd (ACN 109 792 707).

4. Set aside the orders made below.

5. Set aside the agreement made between John Francis Creswick, William Gerard Creswick, Shayne Marise Creswick, Jane Veronica Creswick and Felix Antonio Creswick dated 26 May 2007.

6. Declare that the purported signature of Felix Antonio Creswick on each of those 105 documents listed in Annexure D to Exhibit 22 to the trial exhibits was affixed by John Francis Creswick without the authority of Felix Antonio Creswick.

7. Declare that the transfer authority of Felix Antonio Creswick’s shares in Tabtill 2 to John Francis Creswick and William Gerard Creswick is null and void and order that John Francis Creswick and William Gerard Creswick do all things necessary to revest those shares in Felix Antonio Creswick.

8. Order that caveats lodged by John Francis Creswick over the Holland Park properties being 905 Logan Road (Lots 1 and 3 on RP 38083, Lots 1 and 2 RP 46140 and Lot 1 on RP 51268 County of Stanley Parish of Yeerongpilly, Title References 16817020, 14851018 and 14853044), 909 Logan Road (Lot 2 on RP 51268 County of Stanley Parish of Yeerongpilly, Title Reference 15966057) and 911 Logan Road (Lots 5 and 6 on RP 38083, County of Stanley, Parish of Yeerongpilly, Title Reference 15871094) and by William Gerard Creswick and John Francis Creswick over 35 Sentinel Court (Lot 416 on SL 12471 County of Stanley Parish of Cleveland, Title Reference 17255029) in reliance on their interest under the agreement made 26 May 2007 be removed.

9. Declare that Felix Antonio Creswick holds his interests in the properties situated at 503 Logan Road, Holland Park, more particularly described as Lots 1 and 2 on RP 12943, County of Stanley, Parish of Bulimba, and at 35 Sentinel Court, Cleveland, more particularly described as Lot 416 on Crown Plan SL12471, County of Stanley, Parish of Cleveland, Title Reference 17255029, on trust for Tabtill Pty Ltd ACN 010 408 545.

10. Remit the proceedings to the Trial Division for Felix Antonio Creswick to trace any benefits obtained by Tabtill Pty Ltd and the respondents as a result of the purported affixing of Felix Antonio Creswick’s signature by John Francis Creswick on the documents identified in Order 6.

11. Felix Antonio Creswick be entitled to obtain all accounts, inquiries and disclosure to carry out the tracing referred to in Order 10.

12. Leave to the parties to make written submissions, within such time and in such form as a judge of the Court directs, concerning:

(a) further or consequential orders in conformity with the Court’s reasons, and

(b) orders as to the costs of the appeals, cross appeal, and the proceedings in the Trial Division.

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.