Tabtill Pty Ltd v Creswick - [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 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.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – PROOF AND EVIDENCE – OTHER MATTERS – where Felix Creswick claimed that his son, John Creswick, had forged his signature on a large number of documents – where two handwriting experts had agreed that the disputed signatures were all written by the same author and bore no resemblance to Felix Creswick’s undisputed signature, but disagreed as to whether it was possible to say who had written the disputed signatures – where a number of witnesses to the disputed signatures were called to give evidence – where the effect of John Creswick’s argument was that Felix Creswick continued to use the disputed form of signature after he had falsely accused John Creswick of forgery – where the trial judge found that Felix Creswick had not proven the alleged forgery to the Briginshaw standard – where Felix Creswick argued on appeal that the trial judge failed to properly analyse the evidence and contemporaneous documentation, and failed to consider the consequences of the respective findings of credit made – whether the allegations of forgery were proven to the requisite standard

APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – FUNCTIONS OF APPELLATE COURT – WHERE FINDINGS BASED ON CREDIBILITY OF WITNESSES – PARTICULAR CASES – where the trial judge’s findings in relation to Felix Creswick’s forgery case were made on the basis of general findings as to each of the witness’s honesty and credibility – where the trial judge declined to make a finding as to the identity of the writer of the disputed signatures – whether it is appropriate for the Court of Appeal to make specific findings as to who wrote the disputed signatures from an analysis of the evidence given by witnesses found to be honest by the trial judge

EQUITY – EQUITABLE REMEDIES – RESCISSION – UNCONSCIONABILITY, UNCONSCIONABLE DEALINGS AND OTHER FORMS OF EQUITABLE FRAUD – where the parties entered into an agreement to resolve all matters in dispute between them – where Felix Creswick sought to resile from that agreement shortly after signing it – where the agreement was “brokered” by a real estate agent who had known John Creswick for many years – where Felix Creswick, in the agent’s presence, consulted with a lawyer about the draft agreement – where the agent communicated to Felix Creswick and the lawyer that the agreement had to be concluded the same day – where the lawyer advised Felix Creswick not to sign the agreement, and not to deliver it to John Creswick’s solicitors – where changes were made to the agreement and Felix Creswick signed it and returned it – where the lawyer later expressed his opinion to Felix Creswick and John Creswick’s solicitor that the agreement was signed under duress and would not be enforceable – where the trial judge found that Felix Creswick initiated the signing of the agreement, and that no “false sense of crisis” had been created – whether the trial judge erred in finding that the agreement ought not to be set aside as an unconscientious dealing

EQUITY – EQUITABLE REMEDIES – RESCISSION – UNDUE INFLUENCE OR DURESS – where, in addition to the alleged “false sense of crisis”, Felix Creswick, to John Creswick’s knowledge, was suffering from ill health and impecuniosity – where the trial judge found that Felix Creswick was capable of dealing robustly with John Creswick, and the nature of their relationship was not such as to give rise to undue influence – whether the trial judge erred in finding that the agreement ought not to be set aside on the basis of undue influence or duress

APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – POINTS AND OBJECTIONS NOT TAKEN BELOW – WHEN NOT ALLOWED TO BE RAISED ON APPEAL – QUESTIONS NOT RAISED ON PLEADINGS OR IN ARGUMENT – GENERALLY – where Felix Creswick made handwritten changes to the draft agreement provided to him before signing the agreement – where Felix Creswick communicated his intention to resile from the agreement before it had been executed by the respondents – where, on appeal, Felix Creswick argued that his signing of the agreement amounted to a counter-offer which was withdrawn before acceptance by the respondents and there was therefore no concluded agreement – where that argument was not raised on the pleadings or argued below – whether, in the circumstances, Felix Creswick should be entitled to raise that argument for the first time on appeal

EQUITY – TRUSTS AND TRUSTEES – IMPLIED TRUSTS – RESULTING TRUSTS – WHEN ARISING – PURCHASE IN ANOTHER’S NAME – where Tabtill Pty Ltd and John Creswick argued that a number of the properties registered in Felix Creswick’s name were held on resulting trusts for Tabtill Pty Ltd and/or John Creswick – where the basis of the alleged resulting trusts was the presumption of resulting trust arising from the payment of “acquisition costs”, rates, land tax, and other outgoings with respect to the properties – where the trial judge made adverse findings with respect to the credibility and reliability of both Felix Creswick and John Creswick – where the trial judge did not decide the issue of resulting trusts on the basis that the May agreement was upheld – whether the presumption of resulting trust is raised in the circumstances – whether resulting trusts ought to be ordered

Blomley v Ryan (1956) 99 CLR 362; [1956] HCA 87, considered
Calverley v Green (1984) 155 CLR 242; [1984] HCA 81, applied
Commercial Bank of Australia Lts v Amadio (1983) 151 CLR 447; [1983] HCA 14, cited
Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33, considered
Creswick and Ors v Creswick [2010] QSC 339, overrulled
Dickinson v Dodds (1876) 2 Ch D 463, cited
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, applied
Goldsborough Mort & Co. Ltd v Quinn (1910) 10 CLR 674; [1910] HCA 20, cited
IVI Pty Ltd v Baycrown Pty Ltd [2005] QCA 205, cited
Johnson v Buttress (1936) 56 CLR 113; [1936] HCA 41, considered
Louth v Diprose (1992) 175 CLR 621; [1992] HCA 61, applied
Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357; [2010] HCA 31, cited
Neat Holdings Pty Limited v Karajan Holdings Pty Limited (1992) 110 ALR 449; [1992] HCA 66, applied
O’Brien v Komesaroff (1982) 150 CLR 310; [1982] HCA 33, cited
University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481; [1985] HCA 28, cited
Water Board v Moustakas (1988) 180 CLR 491; [1988] HCA 12, applied

COUNSEL:

P H Morrison QC, with C C Heyworth-Smith, for the appellant in the Tabtill Appeal and the respondents/cross appellants in the Creswick Appeal
L F Kelly SC, with A C Stumer, for the respondent in the Tabtill Appeal and the appellant/cross respondent in the Creswick Appeal

SOLICITORS:

DLA Piper Lawyers for the appellant in the Tabtill Appeal and the respondents/cross appellants in the Creswick Appeal
Hopgood Ganim for the respondent in the Tabtill Appeal and the appellant/cross respondent in the Creswick Appeal

THE COURT: These appeals[1] and cross appeal concern findings about the business and personal relationships of a father, two of his sons and their families and other persons associated with them in business and personally over some 25 years. Felix, John and Bill Creswick have principally built up their fortunes through the used car business although Felix invested in property and John engaged in extensive property development. In 2006-2007 the relations between Felix Creswick and his sons soured. In May 2007 they and the sons’ wives executed an agreement (“the May agreement”) which ostensibly was to effect settlement of their disputes. Felix Creswick disavowed that agreement shortly after he signed it. It was the enforcement of that agreement and its rectification to add further properties as well as the payment of monies by Felix Creswick which led to the institution of these proceedings. Felix Creswick counter-claimed alleging that over many years his son John had forged his signature on bank securities, property transfers and other documents. He maintained that these frauds have led his son and other persons associated with him to obtain benefits at his expense and that they should account to him for those benefits. In the alternative to the claim for specific performance of the May agreement the plaintiff Creswicks and Tabtill Pty Ltd, a company associated with John Creswick, sought orders that Felix Creswick held certain properties of which he was the registered proprietor on trust for Tabtill (or John).
[1]The appeal filed by Tabtill Pty Ltd on 11 October 2010, and the cross appeal filed by Felix Creswick on 27 October 2010, which on 14 April 2011 was ordered to stand as an appeal.

At the trial and in the judgment, because many of those involved in the litigation shared the name Creswick, members of the family were referred to by their given names. It is convenient and appropriate to follow that course in these reasons.

In addition to John, Bill, and their wives Shayne and Jane, John and Shayne’s daughter Jayne, and six “Tabtill” companies controlled by John (collectively “the respondents”), joined in these proceedings against Felix. The background to the disputes has been set out conveniently by the trial judge and may be repeated as that summary is not challenged:[2]
[2]Creswick and Ors v Creswick [2010] QSC 339.

“[12]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.
[13]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 [his wife] 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.
[14]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.
[15]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.
[16]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.
[17]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.
[18]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.
[19]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.
[20]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.
[21]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).

[22]The funds for the acquisition of all these properties were sourced from or financed by Tabtill. Felix made no financial contribution to them.
[23]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.
[24]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.

[25]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.

[26]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.
[27]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.
[28]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.
[29]John 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.
[30]The next 20 years or so were, by and large, good for the Creswick family fortunes.
[31]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.
[32]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 Tabtilll’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. …
[33]Monies drawn by family members under these arrangements were recorded in journals (described within the family as “the green books”).
[34]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. …
[35]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.
[36]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.
[37]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.
[38]As at 2001, Felix and Marcia [Banfield - his de facto partner] 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.
[39]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.
[40]From at least mid 2006, the relations between the parties went into a downhill slide…”

The trial judge made adverse credit findings against Felix, John, Bill and Shayne.

FELIX’S APPEAL

1.Forgery

As part of his counterclaim, Felix alleged that John had, on many occasions over many years, forged his signature on documents with the consequence that John and others within the Creswick family obtained benefits at his expense.

Felix’s case at trial was that John, in each case, was the maker of the signature contained in those documents (“the disputed signature”). John denied making the signature, and contended Felix had written the signatures. Felix accepted he bore the onus of establishing that the disputed signature was forged by John, and that the standard of proof was stringent.[3]
[3]Reasons [113].

At trial, two handwriting experts, John Heath and Gregory Marheine, gave evidence. Evidence was also given by 15 witnesses who were recorded as having witnessed the disputed signature on various documents. With the exception of one witness, Paul Anthony Ziegenfusz, the trial judge found each of these witnesses honest and credible.

The trial judge found that an assessment of the evidence concerning the forgery case fell to be determined according to the Briginshaw standard. The onus to be satisfied was “on the balance of probabilities” not the criminal standard of proof.[4] Applying that test, the trial judge found Felix had not proven that John had forged his signature.
[4]Reasons [115].

Felix submits the trial judge erred in finding that his forgery case had not been proven to the requisite standard. Whilst numerous grounds of alleged error were identified, the essence of Felix’s submission was that the trial judge failed to properly analyse the evidence and contemporaneous documentation. Further, the trial judge failed to consider the consequences of the respective findings of credit made, when determining Felix had not proven his case.

The respondents submit the trial judge correctly applied the law, and properly analysed the documentation and evidence.

Trial judge’s findings

The trial judge’s reasons for finding that Felix had failed to establish his forgery case were as follows:

“[248] The evidence of Mr Heath and Mr Marheine clearly point to a conclusion that the disputed FC signature where it appears in the 105 documents relied on by Felix was made by one person. Beyond that, however, the experts were unable to give me a high degree of assurance as to the identity of the person who had written the disputed FC signature. Mr Heath expressed a view, based on examination of signatures, which tended to support a conclusion that the disputed FC may have been written by John. Mr Marheine, an equally eminent expert, declined to subscribe to Mr Heath’s opinion in this regard, and gave cogent reasons for so doing.
[249]I have related at length the evidence given by the witnesses to the disputed FC signature. It is quite clear that there is no common thread. Witnesses who gave evidence which was not supportive of Felix’s case were subjected to strenuous cross-examination with a view to exposing them as being either partisan or self-interested when giving evidence. With the exception of Mr Ziegenfusz, on whose evidence I have specifically commented above, I consider that each of the witnesses did his or her best to give truthful evidence before me. Occasionally, those witnesses were shown to have been mistaken in their evidence. That did not, however, detract from their overall credibility.
[250]The closest that Felix’s side got to uncovering a ‘smoking gun’ was the evidence of Mrs Stephens and that of Mr Foote. Of course, the absence of direct evidence of fraud is not determinative. The Briginshaw standard can be, and often is, satisfied by reference to circumstantial evidence or the drawing of inferences. At its best for Felix’s case, Foote and Stephens could be relied on to refute the notion that the disputed FC signature had been subscribed by Felix. But neither of them implicated John.
[251]One of the realistic difficulties which Felix’s side also face is that, in order be persuaded to accept the argument that John was the forger of the disputed FC signature, I would effectively need to find that not just one or two but a large series of bank officers from a number of institutions and other independent witnesses were either tricked by John or were so lax in their own witnessing procedures as to allow the alleged serial forgery to occur in front of so many witnesses over so many years. My assessment of the evidence of these witnesses does not allow me to reach that conclusion.
[252]In terms of the objective indicia that were pointed to by counsel for Felix, it is clear that, whilst some of those at least were persuasive to the argument being advanced, there were alternative credible arguments available to explain away the inconsistencies referred to.
[253]The allegations made by Felix were serious indeed. Proof of the forgeries by John required something more than ‘inexact proofs, indefinite testimony, or indirect inferences’. In the case which was run by Felix at trial, Felix needed, in order to succeed on the forgery claims, to persuade me on the balance of probabilities that John had committed these forgeries. My adjudication of whether he has met that standard of proof, however, needs to be made having regard to the seriousness of, and consequence of, the allegations. The evidence in this case provided some support for the proposition that the disputed FC signatures were not written by Felix. Having considered the evidence as a whole, however, I consider that I cannot be satisfied to the requisite standard that Felix has proved that John forged the disputed FC signatures.”

Evidence

Heath and Marheine prepared individual reports, in addition to a joint report. In their joint report, they agreed the disputed signatures were written by “one and the same writer”, and bore “no structural or pictorial likeness, or handwriting characteristics” to samples of Felix’s undisputed signature. They disagreed as to whether it was possible to say who had written the disputed signatures.[5]
[5]Reasons [121].

Marheine could not say who had written the disputed signature. Marheine considered there was some indicia supportive of Felix being the author of the disputed signatures, but they were not persuasive or compelling indicia. He accepted there was no relationship between Felix’s signature and the disputed signatures. Marheine disagreed there was evidence linking John to being the writer of the disputed signature. The disputed signature was of simplistic design, and there was nothing on John Creswick’s initials that persuaded him either way.

Heath’s examination of the various documents allowed him to form the opinion that the writer was not Felix. Heath did not agree that if the trial judge found Felix had more than one signature, it followed that it was possible Felix had signed the disputed signatures. There was no evidence from an examination of the documents to support a conclusion that the author of the disputed signatures was Felix:

“The two patterns are entirely different, ranging across the years from in the 70s through to current of the Felix Creswick specimen, I have been able to examine the substantial range of his variation from the point where he had a normal signature, a fully written signature, right to early times when he changed it from a fully written signature to a more abbreviated form of a signature, where you get this cursive Y type of effort, looks more like a ‘Y’ than an ‘F’, where he actually – the document shows where he started in the ‘70s actually using that abbreviated formation. So, from the time we wrote a fully written signature to the times he abbreviated into this more symbolic form to current date, there is no evidence in the handwriting, none, that says he has modified his signature radically, extremely, and changed it completely to this other pattern of signature.”

Heath accepted there wasn’t anything in the structure or shape of the signatures which could lead him to exclude the possibility that Felix had a second form of signature that he used on occasion. However, there was evidence that linked John Creswick to the completion of a particular pattern range of initials.

Douglas Porteous witnessed the disputed signature on four documents. He would never witness a document which was pre-signed. The signature he witnessed was that of Felix. He was familiar with that signature having seen it used by Felix on statutory declarations relating to infringement notices. He had never seen Felix use any other signature. He denied John Creswick wrote the signatures witnessed by him.

Kurt Deiter Faust witnessed the disputed signature on one document. He also witnessed other signatures within that document. Felix signed in front of him. He would not witness anything that was not signed by the person present.

Tom Banjanin witnessed the disputed signature on two documents. Felix signed in front of him. He never witnessed documents that had been pre-signed. He denied John had written the signature.

Stephen Phillip Zeller witnessed the disputed signature on one document. He had no recollection of witnessing the document, but considered it unlikely the signature was made by a person other than Felix as his practice was not to witness unless the person in front of him was signing the document.

Mark Kurbatoff witnessed the disputed signature on one document. He would not witness a pre-signed document. He could not recall the occasion of witnessing that document and could not recall any occasion when Felix had signed in front of him. He could not say whether he had ever been tricked or misled by John who may have signed a document and then placed it before him to witness it. He recalled meeting Felix on one occasion.

George Lawrence McMahon witnessed one document containing the disputed signature. That document also contained signatures of John, Bill, Tracey Ashton and Jane Creswick. He had witnessed each of those signatures. Felix was definitely present. He had signed first. It was then signed by Bill, John and Tracey.

David Anthony McGee witnessed one of the documents containing the disputed signature. He did not recall witnessing the document. It was possible John had asked him to witness his signature on a document when it was meant to be Felix signing it, but considered that a very unlikely proposition having regard to his usual practice of requiring the person who was required to sign the document to do so in his presence.

Karen Elizabeth Smeal witnessed the disputed signature on two documents. She did not recall the occasions but would not have witnessed the signature if Felix was not signing the document. She did not accept that John may have asked her to witness a signature he had placed on the document. It was her habit to check the name of the person whose signature she witnessed with the person signing the document.

Catherine Rita Stephens witnessed the disputed signature on several documents. She had never witnessed a signature made by Felix. She had never met Felix. On one occasion John had signed a contract in Felix’s name in her presence. She believed it was the contract for Lot 6 of the Wellington Point development. She had noted the contract was in the name of Felix. John said he had authority to sign on his behalf. John was the only person present on that day. She agreed it was difficult to remember individual contracts, but said some things stick. She could not be 100 per cent certain as to whether it was Lot 6 but was “probably 90%”. She denied the contract had come to her pre-signed. Every contract “has been witnessed and signed in front of people”. When it was suggested the Lot 6 contract was not signed by John. She replied “I can’t say who signed it”.

Dawn Moore witnessed the disputed signature on several documents. She had no recollection of the signing of those documents. The procedure in place at the time was that a person would have to sign in the presence of the person witnessing the signature. She followed that practice. She knew of John as a client of the law firm she worked for at the time. She has never met Felix. She did not read the document before witnessing a signature. She did not seek identification of the person as she was “simply witnessing a signature, not the person”. She assumed the person signing the document was the person able to sign that document.

Terrence James Flynn witnessed disputed signatures on several documents. When witnessing documents within the Creswick family he would not necessarily require the person signing to do so in his presence. On occasions, John gave him a document that already had his father’s signature on it. He did not see anything wrong with witnessing that document as “father and son got on very well and there was no reason to think that there would be anything wrong with it”. He recognised the documents as containing the signature he often saw from Felix. There were a variety of signatures in Felix’s name, although he would not have noticed the difference at the time. He could not remember whether Felix had signed the documents in his presence.

Ian Robert Foote, a solicitor, witnessed the disputed signature on one document. His practice was to require the person to sign in front of him. He would have followed his normal practice. He was “confident” he did not witness any documents for Felix. He did witness documents for John. If he had witnessed a signature for Felix, he would recall him being there “because of my close association with John”. He would not necessarily check that the person signing was the named signatory on the document. He would be satisfied as long as the person signed the document in his presence. It was not possible Felix had signed in his presence. He could not say who had signed the document. He would not have been suspicious of John when being asked to witness a document.

Donna Joy Taylor, who worked for both Felix and John, witnessed several documents containing the disputed signature. She did not recall witnessing any of those documents. John would sign documents and then have her take them to have his signature witnessed by the Justice of the Peace. After she became a Justice of the Peace, John would put documents in front of her and ask her to witness them. Sometimes there were already signatures on them. Ms Taylor subsequently said that it was her invariable practice when witnessing a document to have the person whose signature she was witnessing present before her. She accepted that evidence was inconsistent with earlier affidavit material signed by her.

Paul Anthony Ziegenfusz worked for John. On occasions, John had requested he witness documents that had already been signed before he was given the document. He was unable to say whether the documents containing the disputed signature were documents he had been given in a pre‑signed form. He had previously signed an affidavit in which he had said that he witnessed pre‑signed documents given to him by John, including documents purportedly signed by Felix. In cross-examination, he said his practice when witnessing documents was to have the person sign in front of him and then to return to his office where he would witness the signature.

Documentary evidence was also relied upon in support of Felix’s counterclaim. This documentary material included letters and a lease. Felix contended it was improbable he would have signed these documents having regard to the time at which those documents came into existence.

Discussion

The trial judge correctly recognised the applicable standard of proof was proof on the balance of probabilities in accordance with the Briginshaw standard. However, the trial judge found that on the evidence as a whole he could not be satisfied to the requisite standard that Felix had proven that John forged the disputed signatures.

Having regard to the joint opinion of the experts, accepted by the trial judge, that the disputed signatures were written by “one and the same writer”, and bore no structural or pictorial likeness to samples of Felix’s undisputed signature, the trial judge had to consider two options. Either, Felix was using two signatures contemporaneously, or John had forged the disputed signatures.

This is not the usual kind of case in which the only question is whether a particular signature is authentic. On John’s case Felix was in the habit of using two markedly different signatures at different times. A remarkable feature of John’s evidence is that Felix continued to use the disputed signature after he had accused John of forgery by signing the disputed signature. Felix’s solicitor made that accusation on 5 July 2007 in a letter to John’s solicitor. Yet the effect of John’s case was that Felix subsequently applied the disputed signature after 18 July 2007 to Suncorp’s letter of that date, thereby accepting (as guarantor) a variation of Tabtill No 2’s facility with that financier.

Felix’s case was that John forged his signature. On the other hand, John’s case required the conclusions that Felix falsely accused John of forgery and, having done so, again used the disputed signature and falsely accused John of forgery.

In circumstances where there were only two distinct options, each involving very discreditable conduct, it was incumbent upon the trial judge to make a determination. In this respect, the observations in the majority judgment in Neat Holdings are apposite:[6]

“When an issue falls for determination on the balance of probabilities and the determination depends on a choice between competing and mutually inconsistent allegations of fraudulent conduct, generalisations about the need for clear and cogent proof are likely to be at best unhelpful and at worst misleading. If such generalisations were to affect the proof required of the party bearing the onus of proving the issue, the issue would be determined not on the balance of probabilities but by an unbalanced standard. The most that can validly be said in such a case is that the trial judge should be conscious of the gravity of the allegations made on both sides when reaching his or her conclusion. Ultimately, however, it remains incumbent upon the trial judge to determine the issue by reference to the balance of probabilities.”

[6]Neat Holdings Pty Limited v Karajan Holdings Pty Limited (1992) 110 ALR 449 at 451.

In determining whether Felix had satisfied the onus of proof, it was incumbent upon the trial judge to make a determination as to the identity of the writer of the disputed signatures. That required specific findings as to which evidence was accepted, and the reasons why, not general findings as to the honesty of witnesses, and the cogency of the expert evidence. It was an error of law to make generalised findings that the witnesses to the disputed signature (bar one) were giving evidence honestly, or were credible, where some of those witnesses were giving evidence that they had positively witnessed Felix sign the documents,[7] others were giving evidence that they had never met Felix nor witnessed a signature by him[8] and some were giving evidence they had been given documents by John to witness which had already been signed.[9] To find that these witnesses had each given honest evidence created an inconsistency which required resolution by specific findings.
[7]Porteous, Faust, McMahon and Banjanin.
[8]Stephens, Foote and Moore.
[9]Flynn and Taylor.

The failure to make specific findings in respect of the acceptance or rejection of the key parts of a witness’s testimony was compounded by the trial judge’s treatment of evidence sought to be relied upon as “objective indicia of forgery”.[10] Whilst the trial judge dealt with the documents relied upon in support of Felix’s submissions, the trial judge made no specific findings relating those items to the other evidence.
[10]Reasons [226] - [247].

Once that conclusion is reached, it is necessary to consider whether this Court should make the requisite findings. An appellate court is slow to make factual findings in circumstances where the findings involve issues of credit and the trial judge has had the advantage of observing the witnesses give evidence. However, an appellate court may overturn a trial judge’s determination based on credit findings where the conclusion reached was inconsistent with “incontrovertible facts”, “glaringly improbable” or “contrary to compelling inferences”.[11]
[11]Fox v Percy (2003) 214 CLR 118 [28]-[29]; Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357 at 381 [76].

Where, as here, the trial judge has made general findings as to each of the witness’s honesty and credibility, there is no reason why this court is not suitably placed to make the necessary specific findings. Those findings can properly be made from a critical analysis of the evidence given by witnesses found to be honest by the trial judge. It was not submitted by either Felix or the respondents that this Court was unable to make these findings.

Critical to Felix’s contention that the only rational conclusion on the evidence was that John forged the disputed signatures is a consideration of the evidence given by Stephens, Foote and Moore. The respondents submit their evidence must be considered having regard to the evidence as a whole, particularly having regard to the evidence of Porteous, Banjanin, McMahon, Faust and Smeal.

Stephens was accepted by the trial judge as an honest witness. There was no reason for her to give evidence favourable to Felix. Stephens gave evidence that she had never witnessed a signature for Felix, that she had never met Felix, and that she had only ever witnessed a signature made in her presence. If that evidence was accepted, it precluded a possibility that Felix had signed any of the disputed signatures witnessed by her. The trial judge made no specific finding as to whether he accepted that evidence. Instead, he made a general finding that Stephens “was a credible witness who sought to tell the truth”.[12]
[12]Reasons [180].

Stephens gave direct evidence of an occasion when she was asked by John to witness a contract where the seller was specified as Felix. John signed as seller. She identified that contract as being for Lot 6 in a Wellington Point development, although she subsequently expressed some uncertainty in relation to whether the contract was in respect of Lot 6. In evidence in chief, Stephens said:

“Now, you will see – do you recognise that that contract concerns lot 6?-- Yes.
And was that from the Wellington Point subdivision?-- Yes.
Now, is the one that was the earliest in time. It’s dated the 10th of September 2000. You see that?-- Yes.
Now, could I ask you to turn to the second page of that document and you will see someone has signed for the seller?-- Mmm-hmm.
Who signed for the seller?-- John.
John Creswick?-- Yes
Now, can you tell his Honour what you recall of that occasion?-- Well, the first contract I did for the main estate-----
You might have to speak a little bit more slowly, just because the shorthand reporter has to take down your words?-- Okay. This was the first block that I sold for the main estate and when I did the contract and got – took it to John, I did say, ‘Well, it’s in the name of Felix Creswick.’, and John said he had authority to sign on his behalf.
All right. And where did the – can you recall where the actual signing took place?-- As far as I can remember, we met on a new subdivision in Wellington Point.”

Stephens said that John was the only person there. Stephens later identified other contracts that had been initialled by John.

Whilst Stephens, in cross-examination, conceded she was not 100 per cent certain Lot 6 was the contract in question, she was “90% certain”. A later answer, in relation to the Lot 6 contract, that she could not say “who signed it”, when viewed in context, did not detract from her evidence that she was 90 per cent certain the contract in question was the contract for Lot 6. The concession from 100 per cent certainty was nothing more than would be expected from a witness endeavouring to give evidence honestly. The trial judge specifically found Stephens was such a witness. An acceptance of Stephens’ evidence supported a conclusion that John was the writer of the disputed signature on the Lot 6 contract.

That conclusion is fortified by a consideration of John’s evidence that his initials do appear in the Lot 6 contract. Whilst he contended that other initials on that contract were made by Felix, the implausibility of such a scenario meant John’s evidence as to Felix having signed this contract should have been rejected. This is particularly so having regard to the trial judge’s adverse findings as to John’s credit. However, John’s concession that he had made initials on the Lot 6 contract, when considered with Stephens’ evidence, rendered only one conclusion open – John was the maker of the disputed signatures on the Lot 6 contract.

The highly improbable occurrence of both John and Felix having initialled that contract was noted by the trial judge[13] but not further addressed. Instead, the trial judge dealt with a submission that the initials were so similar as to have been written by the one person. That submission was rejected, based on the trial judge’s own eye. However, the improbability of such a scenario, when compared with Stephens’ evidence, favoured only one conclusion. The writer of the disputed signatures on that contract was John, not Felix.
[13]Reasons [242].

Once Stephens’ evidence on this critical issue is accepted, there is evidence that John was the writer of one of the disputed signatures. Having regard to the accepted evidence of the joint experts that the disputed signatures were made by one writer, it follows that he was the writer of each disputed signature. This conclusion is supported by inferences properly drawn from the evidence of Foote and Moore.

Foote could not recall witnessing the disputed signature on a mortgage document but had witnessed documents for John. He categorically denied ever witnessing any documents for Felix. The only inference properly to be drawn from the evidence of Foote, who was accepted by the trial judge as an honest witness, was that the disputed signature witnessed by him was not signed by Felix. Whilst it is correct Foote did not give evidence that John had signed the disputed signature, the case conducted at trial was that the writer of the disputed signatures was either Felix or John. Against that background, the only inference to be drawn from Foote’s evidence, having regard to his contact with John, was that John had signed the disputed signature witnessed by Foote.

Moore, formerly a Commissioner for Declarations, was shown five examples where she had witnessed the disputed signature. Whilst she did not recall any of those occasions, her practice was to have a person sign in front of her before witnessing the signature. She did not, however, seek identification from that person. She had never met Felix. She recognised John as being a client of the law firm she was working for at the time in question. The trial judge accepted Moore was an honest witness. The only inference from her evidence that she had regularly seen John at the law firm but had never met Felix, and that she required the person to sign in front of her before witnessing the signature, was that the disputed signature was signed by John.

The trial judge did not analyse the consequences of an acceptance of the evidence given by Stephens, Foote and Moore. Whilst the trial judge referred to their evidence as, at best, refuting the notion that the disputed signature had been written by Felix,[14] and as not implicating John, the evidence of Stephens, Foote and Moore, properly analysed, supported a finding that John was the writer of the disputed signatures witnessed by them.
[14]Reasons [250].

The significance of that evidence necessitated a determination of the conflicting evidence of Heath and Marheine as to whether there was evidence that John was the writer of the disputed signatures. No findings were made by the trial judge as to which expert was to be preferred. At best, there was an acknowledgement of the cogency of Marheine’s reasons for disagreeing with Heath.[15] Marheine’s reasons for not agreeing with Heath were based on the simplicity of the formations, and his instructions. Whilst Marheine was asked to put those instructions to one side, his initial reliance on those instructions could not but subconsciously affect his conclusion. Heath’s opinion was not so tainted. Heath’s evidence was clear and compelling. It ought to have been preferred. It supported the conclusion that John forged the disputed signatures.
[15]Reasons [248].

There was also other unmistakable evidence pointing to John being the author of the disputed signature. Both Flynn and Taylor gave evidence that John had given them pre-signed documents to witness, or have witnessed by another. Whilst it is correct they did not give evidence John had made those signatures that inference was properly to be drawn once a conclusion was reached that John was the writer of the disputed signature.

The respondents submit the trial judge’s findings must be viewed in the context of the acceptance of Porteous, McMahon, Faust and Banjanin as honest witnesses. Each gave evidence they had seen Felix sign the disputed signature. As the expert evidence accepted by the trial judge was that all of the disputed signatures had been signed by the one person, acceptance of their evidence as honest meant the trial judge implicitly rejected the accuracy of the evidence given by Stephens, Foote and Moore.

Whilst the trial judge did find Porteous, McMahon, Faust and Banjanin to be honest witnesses (although in the case of Banjanin there was a qualification to the finding), the trial judge did not make specific findings in relation to an acceptance of their evidence in relation to having witnessed Felix sign the disputed signature. Further, rather than find that the evidence supported a conclusion that Felix had written the disputed signatures, the trial judge specifically found that the evidence in this case provided some support for the proposition that the disputed signatures were not written by Felix.[16] That suggests the trial judge did not accept the reliability of the evidence of Porteous, Faust, McMahon or Banjanin in relation to their having witnessed Felix sign the disputed signatures. Such a conclusion is not inconsistent with the trial judge’s finding that each was a credible witness. There was good reason not to accept those witnesses as reliable witnesses.
[16]Reasons [253].

The trial judge’s refusal to reject the evidence of Porteous in respect of witnessing the signature on the Suncorp document on 24 July 2007 was specific. The trial judge was not prepared to reject Porteous’s evidence “in the way submitted by Felix’s counsel”.[17] That was a reference to an attack on Porteous as being a partisan witness who gave evidence to protect his own credibility. It is understandable the trial judge was not prepared to reject Porteous on that basis. It does not mean he accepted Porteous’s evidence as reliable. Porteous ultimately accepted it was possible that John could have tricked him by placing the document in front of him, signing it and his witnessing it without the same degree of vigilance as he would undertake in respect of a person he did not know. Having regard to Porteous’s close connection with John, that concession was significant.
[17]Reasons [231].

Faust’s evidence was the subject of inconsistencies. In evidence in chief, whilst he had the actual document in front of him, Faust gave evidence he had witnessed the signatures of John, Bill and Felix on page 8, and the signatures of Bill, Mrs Creswick and Felix on page 9 of the document. However, the signatures on page 9 were those of Bill, Mrs Creswick and John. Faust sought to explain this inconsistency in re-examination by saying “the explanation would be that I referred to the page 8 when I was asked that question” [sic] and he did not mean page 9. However, the questions in examination in chief were specific:

“Are you able to tell the Court whose signatures you have witnessed on page 8?-- I have witnessed the signatures of John Creswick, Bill Creswick and Felix Creswick.
Could you go to page 9? Could you tell the Court whose signatures you witnessed?-- That would be Bill Creswick’s, Mrs Creswick and Felix Creswick’s. All right.
And your signature appears both on pages 8 and 9?—Yes.” [sic]

Those responses, when viewed in the context of the document in front of him, rendered his explanation for the inconsistency difficult to accept. That inconsistency ought properly to have called into question Faust’s reliability.

Banjanin’s evidence covered both witnessing the disputed signature on certain documents, and the circumstances surrounding the signing of the May agreement. The trial judge specifically found that although he generally accepted Banjanin’s evidence in respect of the May agreement, he did not accept Banjanin’s evidence where it was in conflict with that of Colville. That very significant qualification, in the circumstances of this case, called into question Banjanin’s reliability as a witness. Whilst the trial judge accepted that Banjanin was a credible witness on the aspect of witnessing the disputed signature, a finding as to credibility did not deal with his reliability. The trial judge had found Banjanin unreliable in respect of events surrounding the May agreement. That finding properly called into question his reliability generally.

McMahon’s evidence also contained inconsistencies. In evidence in chief, he was asked how he went about witnessing the signatures of John, Bill, Felix and a lady named Tracey Ashton. He replied:

“It was said, ‘We were going to sign these documents. We want you to witness them.’ I can’t remember what happened after that but I do remember Bill stood up and let me sit in his chair, which was the main office. Everyone was standing around and there was a number of – a pile of documents. I don’t know how many there were on the desk”.

He subsequently said that Felix was definitely present and that Felix had signed first. In cross-examination he explained that the reference to not remembering what happened after that meant “just in that short space of time, from standing there to sitting in his chair”. That answer was difficult to reconcile with his unprompted response in chief. It called into question the reliability of McMahon’s evidence. The trial judge’s response to that challenge was to find that McMahon “generally” sought to give truthful evidence.[18] That finding did not address the issue of the reliability of the evidence he sought to give truthfully.
[18]Reasons [163].

Other items of alleged objective indicia were referred to by the trial judge. They were Suncorp documents dated May and July 2007 containing the disputed signatures, the Zupps lease, and recital M to the May agreement.[19] The trial judge correctly noted that there were competing contentions in respect of the significance of these documents. However, once a conclusion is reached that John was the maker of the disputed signature, these documents supported the conclusion that John forged the disputed signatures.
[19]Reasons [226] - [247].

The Suncorp documents were both signed at a time when there was great dispute between Felix and John. There was good reason why John needed both to be signed. There was no good reason why Felix would have signed them. The trial judge recorded the contentions advanced by Felix, but reached no conclusion in relation thereto, instead referring to reasons why Felix may have wished to keep his options open.[20] The contentions advanced by Felix were compelling and ought to have been accepted.
[20]Reasons [234] - [237].

There were strong reasons why it was improbable Felix would have signed the letter dated 24 July 2007. He had recently alleged, through his solicitor’s letter of 5 July 2007, forgery by John. There had also been a significant breakdown in the relationship since May. Objectively, it is far more probable John signed the letter dated 24 July 2007. Such a conclusion is entirely consistent with John’s perfunctory response, through his solicitor in a letter dated the same date, 24 July 2007, to the allegations of forgery recently made by Felix.

Felix also submitted the Zupps lease was a relevant document. Whilst the trial judge referred to it, it was accepted by the respondents that it was not a determining factor. Recital M to the May agreement was in a different category. It was inserted at John’s insistence. If John had forged the disputed signature, there was good reason why John would have included recital M to the May agreement.

The trial judge also referred to other documents as giving some support to Felix being the writer of the disputed signature,[21] but not “overwhelming support” for that theory. Those documents were equivocal, and could not overcome the evidence in support of the conclusion that John had forged the disputed signature. This is particularly so having regard to the expert evidence and the unlikelihood of Felix using two unrelated signatures at the one time.
[21]Reasons [240] - [242].

The evidence, in its entirety, established to the requisite standard that John was the writer of each disputed signature. The decision of the trial judge dismissing this aspect of Felix’s claim must be set aside. Felix is entitled to succeed on this aspect of his counterclaim.

2.The May agreement

Background

To appreciate the various factors in play on 25 May 2007 when Felix executed the May agreement, some further background needs to be mentioned. On 4 July 2006, John’s solicitor, Mr Mott, wrote to Felix’s then solicitors, Connor Hunter:

“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.”

Mr Mott wrote again to Felix’s solicitors on 17 August 2006:

“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 responded to Mr Mott noting that Felix had an equitable interest in the property and that Felix’s properties in Holland Park had been sold to enable John to develop a number of units on the land and setting out his claims:

“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 Macdonald’s).
We now await to hear from you within 21 days from today’s date.”

Mr Mott responded by 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. ”

Felix responded by writing directly to John and his wife, Shayne, on 2 October 2006:

“I am 76 years of age and have now worked for you and

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.”

Mr Mott responded by letter dated 6 October 2006 to Felix’s then solicitors:

“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.”

Not a partnership?-- All right. Now, John, at other time there, could draw - he could pay wages, he could draw money from the family business, I could draw money from the business, but we were working as a family business, not as a family partnership.
And you were running Holland Park?-- I was running the organisation, Holland Park, yes.
So what basis did you have for claiming from John 18 years of rent for Holland Park?-- Well, that’s why is this one here was, when we were split up, John and Eric - I never been taking any commission out of the cars that I was selling.
Because you-----?-- I was leaving everything in the family, in the family business.
Well, are you saying there was no basis for this claim for 18 years rent? You just made it up?-- I did not made it up. I worked this one here, how many cars I sold, what I’d done, what I should be entitlement, when we completely split with John, you know, split with John as a family business, and I was entitled to this money here for the effort I put in to run this business. I was running the business.
His business?-- Yes.
Okay. Now, where did you get 7,000 a month from? That was not an agreed figure, was it?-- I didn’t - this was not agreed, no, because I never charged it.
Yeah. Well, it was agreed there would be no rent, wasn’t it?-- But was not - I - we - we didn’t even discuss then. It was a family business. We didn’t discuss these things here. We didn’t discuss about the commission. We didn’t discuss it with nothing, because he was free to take money, I was free to take money. We were very, very conservative to - to don’t spend money, or throw money away, and he was working hard and I was working hard and we were building a family business; and I believe all my life the Creswick Motors, or Felix Creswick, you know what I mean, or the family Creswick will become one of the biggest dealerships in Queensland, and actually did become one of the biggest dealership in Queensland.
Mmm hmm. Now, you then stipulated in your claim that you wanted interest on on that 18 years of rent as well, number 11?-- Well, the pointers were here. After John - after we blew up with John, and one thing and another, well, I was entitled for my effort that I put to the family business, to the family business. I was entitled.
So this - sorry. I don’t mean to interrupt. I beg your pardon. Keep going?-- Mmm. Yeah. I was entitled to be compensated for my years that I put into the family business.
This isn’t a claim based on any agreement, is it? This is your-----?-- Was not.
-----idea of what were entitled to?-- Was not an agreement made. The agreement was not made. There’s no agreement. We just run as a family business.
I understand. Now, the next thing you claimed was number 12, commission on the sale of cars for 18 years?-- Yes. I work it out with my accountant and then - roughly, I mean, how many cars I sold, roughly what we made and one thing and another, and I think I was in - in - entitled, you know what I mean, some compensation, some commission, out of the cars that I sold. Now, I was their only salesman that were selling more cars than anybody else. I sold a lot of cars, but I never took a commission out, nothing. I just left everything there for the family business, family, family. I believed in my family. I want the family to grow. The family was living well. That was it. It was no agreement made. It was not a verbal agreement made, was not - was not even discussed. We were just running as the Creswick family.’

[98]There were several other occasions in his evidence when Felix referred to this. For example, shortly after the passage I have just quoted, the following evidence was given:
‘But none of these items, 10 through to 14, were based on any agreement at all, were they? – Was not agreement made. We were working as a family business, Creswick family business.’

[99]Having heard all the evidence, and considered all of the witnesses, it seems to me that these explanations by Felix most accurately describe the modus operandi by which the Creswicks actually conducted themselves until they fell into dispute. Legal structures and the particular names into which properties were ‘parked’ from time to time were of no real importance to them. They (by this I mean Felix and John, and later Bill) left to their accountant the task of ensuring that the books of account not only tallied, but reaped for the members of the family the maximum possible revenue benefit. Money was freely available to each member of the family. I am quite satisfied that there was, in fact, no discussion between them, let alone any formalisation, of the basis upon which they were ‘doing business together’. While they stuck together, they could repel outsiders (as seen in Felix’s defence of the claim made by Mr Kallis).”

The finding that the fact that a family member was registered as a proprietor of a particular property did not necessarily mean that the family member had a beneficial interest in the property did not amount to a finding that any particular property was or was not held upon trust for Tabtill or anyone else. Similarly, the finding that the family’s modus operandi was to “park” properties in different names did not amount to a finding that any particular property was or was not beneficially owned by the registered proprietor. The effect of the findings, so far as is presently relevant, is that John and Felix did not advert to or discuss the beneficial ownership of any particular property. The evidence they gave on that topic must be discarded for that reason, and also because of the trial judge’s strongly adverse findings about credibility.

Accordingly, Felix could not establish his pleaded case that John and Felix orally agreed that 35 Sentinel Court would be bought for Felix and Marcia. He did not pursue that case in response to the cross appeal. Similarly, Tabtill and John could not succeed in establishing their pleaded case that Felix represented, and that he and John agreed and they intended, that Tabtill or John would hold the beneficial interest in the properties.

Felix argued that Tabtill’s claims for compensation, adjustment or charging orders must fail because those claims were dependent upon proof of John’s intention. In any event, Tabtill and John did not pursue those claims in their cross appeal. They confined their argument to reliance upon the rebuttable presumption that, where a person pays the whole purchase price of property which is purchased in the name of another person, the second person holds the property on a resulting trust in favour of the first person.[59] They argued that Tabtill (or, in the case of 905 Logan Road, Tabtill or John) paid all of the acquisition costs and outgoings in relation to the properties. Accordingly, their cross appeal depends entirely on proof that Tabtill or John paid the purchase prices of the properties held in Felix’s name.
[59]Calverley v Green (1984) 155 CLR 242.

Felix argued that the presumption did not apply in relation to 8-10 Crump Street and 905 Logan Road because he purchased those properties using money he borrowed from a financier. He argued that if Tabtill or John repaid those loans and paid the outgoings, those payments did not give rise to the presumption upon which the cross appeal is based. We will discuss that argument when we consider the evidence relating to each property.

Felix also advanced a broader argument in relation to each of the four properties. He argued that the trial judge’s findings quoted in [149] of these reasons and certain aspects of the evidence made reliance upon the presumption inapt or rebutted it in each case. Felix argued that the trial judge’s findings confirm that he made substantial contributions to the fortunes of Tabtill by his work in the family business. He argued that in those circumstances, benefits flowing to him from Tabtill should not be regarded as a gift. Felix also referred to the following matters: with minor exceptions, Tabtill’s financial statements did not record that it owned any interest in the properties of which Felix was the registered proprietor; Felix’s tax returns, which were prepared by Tabtill’s accountant, recorded income from properties registered in Felix’s name; the bank witnesses did not give evidence that John claimed that Tabtill owned any of those properties; although John had a strong motive to assert that Felix held the properties on trust for Tabtill once relations soured between Felix and John, no such claim was made until 11 February 2008 in the amended statement of claim; and the May Agreement did not refer to John or Tabtill having a beneficial interest in any of the properties.

That argument must be rejected. The fact that John did not make or cause Tabtill to make any earlier claim to the beneficial ownership of the properties is not particularly significant in the context of the complex issues thrown up by the breakdown of the family relationship, and where the family members had not adverted to the beneficial ownership of the properties over the very long period during which the family operated in the way described by the trial judge. The fact that, in dealings with financiers and others, the properties were recorded as being owned by their registered proprietors is not particularly significant for the same reason, and also because of the trial judge’s findings that John and Felix gave the accountant the task of ensuring that the books of account reaped the maximum possible revenue benefit for the family. It was not necessary for the May agreement to advert to the question of beneficial ownership for it to fulfil its function. The trial judge referred to Felix’s contributions to Tabtill’s finances and nonetheless found that the fact that a particular family member was registered as a proprietor of a particular property did not necessarily mean that the family member had a beneficial interest in it.[60]
[60]Reasons [28].

Ultimately, the problem which Felix’s argument failed to confront is that, in light of the trial judge’s uncontested findings of fact and credit, the Court is unable to make any positive finding about the intention of Felix, John or Tabtill as to the beneficial ownership of any of the properties. This is precisely the kind of case in which the equitable presumption does apply.[61] In the result, if Tabtill or John paid the purchase price for a particular property, the presumption arose and was not rebutted. Conversely, if Tabtill or John did not pay the purchase price, the presumption did not arise.

2.905 Logan Road , Holland Park

[61]See Calverley v Green (1984) 155 CLR 242 at 270 per Deane J.

Tabtill and John’s claim that the presumption of a resulting trust arose in relation to 905 Logan Road must fail because they failed to prove that either of them paid the purchase price. Indeed, the pleadings and the evidence strongly suggest that Felix purchased the property using his own money and money he borrowed from a financier.

Tabtill and John themselves alleged that Felix purchased the property in 1976 or 1977. Tabtill and John also admitted Felix’s allegation that he purchased and became the registered owner of 905 Logan Road on or about 25 September 1975. The trial judge found that Felix purchased 905 Logan Road.[62] Felix alleged that he purchased the property for $180,000, of which he provided $80,000 from his own resources and $100,000 from money lent to him by AGC (Advances) for that purpose, the loan being secured by a registered mortgage which he granted over the property to that financier. Tabtill and John admitted that AGC advanced $100,000 to Felix on the security of a mortgage registered over the property. They did not admit Felix’s allegation that he paid the balance of the purchase price from his own resources, but they did not allege that either of them paid any part of the purchase price to the vendor. They alleged only that Felix “financed or re-financed the purchase”, “by way of loan facilities” in Felix’s name, with John’s or Tabtill’s assistance “from 1979”.
[62]Reasons [18].

In short, Tabtill and John’s case that a resulting trust should be presumed was that, from some four years after Felix purchased the property in 1975, Tabtill or John made repayments of the money which Felix had borrowed to pay the purchase price. No such presumption arose from those alleged facts. The presumption upon which the cross appeal is based arises when one person pays the purchase price of property which is purchased in another person’s name. For the purposes of that doctrine, the payment of mortgage instalments is not a payment of the purchase price.[63] There are apparent exceptions to that proposition, such as where the parties agree after the purchase to alter the equitable interest acquired at the time of the purchase, and where the parties intend to acquire a particular property free of a mortgage which must subsequently be discharged.[64] The exceptions depend upon the parties’ agreement or intention. For the reasons already given, Tabtill and John could not establish any such agreement or intention which was inconsistent with the application of the presumption.
[63]Calverley v Green (1984) 155 CLR 242 at 252 per Gibbs CJ, 257 - 258 per Mason and Brennan JJ, 267 - 268 per Deane J.
[64]Calverley v Green (1984) 155 CLR 242 at 262 - 263.

Tabtill and John also allege that they paid rates, land taxes and other outgoings in respect of the property until 2005. With some specific exceptions, Felix admitted that allegation. Those payments, like repayments of Felix’s debt to the financier, were made after Felix became the legal and beneficial owner of the property when he purchased it from the vendor. No authority was cited for the proposition that a variation in the beneficial ownership of property might be inferred merely from the fact that, after the owner purchased the property, the claimant paid the amounts due by the owner under the owner’s mortgage and other outgoings in relation to the property.

The cross appeal in relation to 905 Logan Road fails for those reasons.

3.8-10 Crump Street , Holland Park

The statement of claim alleged and (subject to qualifications which are not presently relevant) Felix admitted that on or about 27 September 1989 contracts were entered into for the purchase in his name of 8-10 Crump Street. The statement of claim went on to allege that the purchase was made “by way of loan facility (contract number 462165651) from Mercantile Credit Limited”, that Tabtill repaid all the principal and interest to discharge “the Defendant’s loan with Mercantile Credit Limited”, that on 11 January 1991 “the Defendant’s loan with Mercantile Credit Limited was refinanced with a loan facility (loan number CO1-104556) from the Bank of Queensland in the name of the Defendant”, and that Tabtill repaid all of the principal and interest in respect of “the Defendant’s loan with the Bank of Queensland.”

Tabtill and John did not allege that either of them borrowed the money necessary to pay the purchase price, or that either of them paid the purchase price to the vendor of the properties. It is evident that Tabtill and John’s own case was that Felix entered into a contract to purchase the property, he fulfilled his contractual obligation to pay the purchase price using money he borrowed from Mercantile Credit Limited, and Tabtill repaid the loan and paid the outgoings in relation to the properties. For the reasons given in relation to 905 Logan Road, proof of that case would not establish a presumption that Felix holds those properties on trust for Tabtill.

Tabtill and John argued that Felix admitted that Tabtill purchased and paid for these properties. Tabtill and John referred to Felix’s following pleaded response to the allegations summarised in [162] of these reasons:

(a) Felix denied that the purchase of the Crump Street properties was made by way of loan facility contract number 462165651 from Mercantile Credit Limited “because … Crump Street was not purchased with money lent by Mercantile Credits and has never been mortgaged to Mercantile Credits” and the pleaded loan facility “was an extension of an earlier loan facility with Mercantile Credits, which was secured by registered mortgage H965465 over 905 Logan Road.”

(b) Felix did not deny that Tabtill made payments to discharge his loan with Mercantile Credit Limited, but he alleged that the payments were made by John or Tabtill on his behalf and were, or ought to have been, debited to his dealership or property partnership drawings in accordance with the conduct of the dealership and property partnership businesses between Felix and John.

(c) Felix denied that his loan with Mercantile Credit Limited was refinanced with the loan facility alleged by Tabtill and John, and he alleged that he purported to enter into other facilities with the Bank of Queensland on or about 4 December 1990, 21 January 1991, and 15 April 1991.

Those pleadings gave rise to an issue about the identity of the loan agreement under which Felix borrowed the money for his purchase of the property, but it was not in issue that Felix entered into some such loan agreement.

Tabtill and John particularly emphasised the following allegation in Felix’s defence:

“102. Felix purchased Crump Street for an aggregate purchase price of $227,500 with money provided by Tabtill on Felix’s behalf.

Particulars

At or about the time that Felix negotiated to purchase Crump Street, Felix and John agreed that:

(a) Crump Street would belong to Felix;

(b) the purchase would be financed by an extension of an existing loan facility with Mercantile Credits Limits and secured by a third registered mortgage over Holland Park;

(c) Tabtill would pay the acquisition costs on behalf of Felix from his dealership partnership drawings.

Felix and John thereafter conducted themselves on the basis of that agreement.”

In reply to that paragraph, Tabtill and John denied “that Crump Street was purchased on Felix’s behalf”. They alleged that the allegation was untrue, they relied upon their allegation that there was no “dealership partnership”, and they denied “the agreement particularised” by Felix.

Tabtill and John argued that, in consequence of the trial judge’s rejection of Felix’s case that there was a “dealership partnership”, paragraph 102 of the defence amounted to an admission that Tabtill paid the purchase price of the Crump Street properties purchased in Felix’s name. That argument failed to take into account: Tabtill and John’s denial of the truth of the allegations in paragraph 102; paragraph (b) of the agreement alleged in the particulars of paragraph 102; and Tabtill and John’s allegations that Felix borrowed the money for the purchase of the property.

Paragraph (b) of the agreement alleged in the particulars suggested that the acquisition of this property was effected with money borrowed on the security of the third registered mortgage of 905 Logan Road which Felix granted to Mercantile Credits Limited in September 1986. 905 Logan Road was Felix’s property, he was the only mortgagor, and the mortgage does not identify any other party as the borrower. The “existing loan facility with Mercantile Credits Limits” referred to in the particulars was presumably one under which, as Tabtill and John alleged in their statement of claim, that financier lent money to Felix. In the context of Tabtill and John’s allegations and Felix’s response to them summarised in [162] and [164] of these reasons, Felix’s allegation, which Tabtill and John denied, that he “purchased Crump Street … with money provided by Tabtill on Felix’s behalf” is insufficient to justify a finding that Tabtill paid the purchase price of the property. As the trial judge found, the acquisition was “financed through Tabtill”,[65] but that meant only that Tabtill paid the mortgage instalments which Felix was liable to pay to the financier under his loan agreement and mortgage.
[65]Reasons [24].

Because Tabtill and John did not prove that Tabtill paid the purchase price for the property, the presumption of a resulting trust did not arise. The cross appeal in relation to 8-10 Crump Street fails for that reason.

Tabtill’s written outline of argument in reply in its appeal contended that, if its claimed resulting trust over 8-10 Crump Street was rejected, Tabtill’s payment of mortgage instalments for which Felix was liable gave rise to an equitable charge in its favour over Crump Street to secure that contribution. However, in oral argument, Tabtill made it plain that, if, as we have concluded, the order for specific performance of the May agreement should be set aside, Tabtill did not pursue its appeal. As we have mentioned, Tabtill did not pursue the claims for charging orders which were originally made in its cross appeal.

4.503 Logan Road, Greenslopes and 35 Sentinel Court, Cleveland

Tabtill and John alleged that Tabtill paid the deposit and the balance of the purchase price for the purchase of 503 Logan Road, Greenslopes. Although Felix did not distinctly admit those allegations, he denied them on the grounds, now known to be untenable, that payments made by Tabtill were made from Felix and John’s “dealership partnership drawings on behalf of the property partnership” or that the purchase was made pursuant to a joint venture between Felix and John or between Felix, John and Bill. Felix himself pleaded that the purchase price of $200,000 was paid from a larger sum lent by a financier to Tabtill.

As to 35 Sentinel Court, Cleveland, Felix did not deny Tabtill and John’s allegations that Tabtill paid the purchase price for that property using its own money, although it was in dispute whether Tabtill obtained some of that money from a term deposit account or from a loan to Tabtill secured by a mortgage over the property.

The trial judge found that:

(a) 503 Logan Road was acquired with money which was “sourced from” or “financed by” Tabtill and “Felix made no financial contribution” to that acquisition.[66]

(b) The funds for the acquisition of 35 Sentinel Court “came from or were financed by Tabtill” and “Felix did not contribute financially to the purchase.”[67]

[66]Reasons [21] - [22].

[67]Reasons [23].

Felix did not contest Tabtill and John’s arguments that these amounted to findings that Tabtill paid the purchase price for each property. It was therefore presumed that Felix acquired his interests in those properties on resulting trusts in favour of Tabtill. Those presumptions were not rebutted and there was no suggestion that Tabtill subsequently relinquished its beneficial interests.

Accordingly the cross appeal succeeds in relation to 503 Logan Road, Greenslopes and 35 Sentinel Court, Cleveland.

COSTS AND OTHER ORDERS

It is appropriate to allow the parties an opportunity to make submissions about the appropriate orders for costs of the trial, appeals and cross appeal. Subject to that, our provisional views about the costs of the appeals and cross appeal are as follows.

Because Felix succeeds in his appeal the respondents to that appeal should be ordered to pay Felix’s costs. Tabtill should pay the costs of its unsuccessful appeal.

We have held that Tabtill is entitled to important declarations in the cross appeal brought by Tabtill and the plaintiff Creswicks against Felix, but only in relation to two of the four properties. Tabtill was required to bring that cross appeal to vindicate its claim to the two properties and its substantial measure of success should be vindicated by a favourable costs order. The case is unusual, however, since the trial judge did not deal with the issues agitated in the cross appeal. With that in mind, Felix’s partial success should be reflected in a diminution of the costs he should be ordered to pay, which we assess at one third. We are conscious that the other cross appellants did not obtain any relief, but their joinder as parties would not have significantly increased the costs incurred by Felix.

Further orders are necessary to give effect to the Court’s reasons, particularly orders concerning the resolution of issues flowing from the finding that Felix did not sign many documents which bear what appears to be his signature. The parties should be given the opportunity to make submissions about the appropriate orders.

ORDERS

The orders are:

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.

Goldsborough Mort & Co. Ltd v Quinn (1910) 10 CLR 674 at 678; Dickinson v Dodds (1876)

2 Ch D 463; IVI Pty Ltd v Baycrown Pty Ltd [2005] QCA 205 per McPherson JA at [1].

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 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.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – PROOF AND EVIDENCE – OTHER MATTERS – where Felix Creswick claimed that his son, John Creswick, had forged his signature on a large number of documents – where two handwriting experts had agreed that the disputed signatures were all written by the same author and bore no resemblance to Felix Creswick’s undisputed signature, but disagreed as to whether it was possible to say who had written the disputed signatures – where a number of witnesses to the disputed signatures were called to give evidence – where the effect of John Creswick’s argument was that Felix Creswick continued to use the disputed form of signature after he had falsely accused John Creswick of forgery – where the trial judge found that Felix Creswick had not proven the alleged forgery to the Briginshaw standard – where Felix Creswick argued on appeal that the trial judge failed to properly analyse the evidence and contemporaneous documentation, and failed to consider the consequences of the respective findings of credit made – whether the allegations of forgery were proven to the requisite standard APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – FUNCTIONS OF APPELLATE COURT – WHERE FINDINGS BASED ON CREDIBILITY OF WITNESSES – PARTICULAR CASES – where the trial judge’s findings in relation to Felix Creswick’s forgery case were made on the basis of general findings as to each of the witness’s honesty and credibility – where the trial judge declined to make a finding as to the identity of the writer of the disputed signatures – whether it is appropriate for the Court of Appeal to make specific findings as to who wrote the disputed signatures from an analysis of the evidence given by witnesses found to be honest by the trial judge EQUITY – EQUITABLE REMEDIES – RESCISSION – UNCONSCIONABILITY, UNCONSCIONABLE DEALINGS AND OTHER FORMS OF EQUITABLE FRAUD – where the parties entered into an agreement to resolve all matters in dispute between them – where Felix Creswick sought to resile from that agreement shortly after signing it – where the agreement was “brokered” by a real estate agent who had known John Creswick for many years – where Felix Creswick, in the agent’s presence, consulted with a lawyer about the draft agreement – where the agent communicated to Felix Creswick and the lawyer that the agreement had to be concluded the same day – where the lawyer advised Felix Creswick not to sign the agreement, and not to deliver it to John Creswick’s solicitors – where changes were made to the agreement and Felix Creswick signed it and returned it – where the lawyer later expressed his opinion to Felix Creswick and John Creswick’s solicitor that the agreement was signed under duress and would not be enforceable – where the trial judge found that Felix Creswick initiated the signing of the agreement, and that no “false sense of crisis” had been created – whether the trial judge erred in finding that the agreement ought not to be set aside as an unconscientious dealing EQUITY – EQUITABLE REMEDIES – RESCISSION – UNDUE INFLUENCE OR DURESS – where, in addition to the alleged “false sense of crisis”, Felix Creswick, to John Creswick’s knowledge, was suffering from ill health and impecuniosity – where the trial judge found that Felix Creswick was capable of dealing robustly with John Creswick, and the nature of their relationship was not such as to give rise to undue influence – whether the trial judge erred in finding that the agreement ought not to be set aside on the basis of undue influence or duress APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – POINTS AND OBJECTIONS NOT TAKEN BELOW – WHEN NOT ALLOWED TO BE RAISED ON APPEAL – QUESTIONS NOT RAISED ON PLEADINGS OR IN ARGUMENT – GENERALLY – where Felix Creswick made handwritten changes to the draft agreement provided to him before signing the agreement – where Felix Creswick communicated his intention to resile from the agreement before it had been executed by the respondents – where, on appeal, Felix Creswick argued that his signing of the agreement amounted to a counter-offer which was withdrawn before acceptance by the respondents and there was therefore no concluded agreement – where that argument was not raised on the pleadings or argued below – whether, in the circumstances, Felix Creswick should be entitled to raise that argument for the first time on appeal EQUITY – TRUSTS AND TRUSTEES – IMPLIED TRUSTS – RESULTING TRUSTS – WHEN ARISING – PURCHASE IN ANOTHER’S NAME – where Tabtill Pty Ltd and John Creswick argued that a number of the properties registered in Felix Creswick’s name were held on resulting trusts for Tabtill Pty Ltd and/or John Creswick – where the basis of the alleged resulting trusts was the presumption of resulting trust arising from the payment of “acquisition costs”, rates, land tax, and other outgoings with respect to the properties – where the trial judge made adverse findings with respect to the credibility and reliability of both Felix Creswick and John Creswick – where the trial judge did not decide the issue of resulting trusts on the basis that the May agreement was upheld – whether the presumption of resulting trust is raised in the circumstances – whether resulting trusts ought to be ordered Blomley v Ryan (1956) 99 CLR 362; [1956] HCA 87, considered Calverley v Green (1984) 155 CLR 242; [1984] HCA 81, applied Commercial Bank of Australia Lts v Amadio (1983) 151 CLR 447; [1983] HCA 14, cited Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33, considered Creswick and Ors v Creswick [2010] QSC 339, overrulled Dickinson v Dodds (1876) 2 Ch D 463, cited Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, applied Goldsborough Mort & Co. Ltd v Quinn (1910) 10 CLR 674; [1910] HCA 20, cited IVI Pty Ltd v Baycrown Pty Ltd [2005] QCA 205, cited Johnson v Buttress (1936) 56 CLR 113; [1936] HCA 41, considered Louth v Diprose (1992) 175 CLR 621; [1992] HCA 61, applied Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357; [2010] HCA 31, cited Neat Holdings Pty Limited v Karajan Holdings Pty Limited (1992) 110 ALR 449; [1992] HCA 66, applied O’Brien v Komesaroff (1982) 150 CLR 310; [1982] HCA 33, cited University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481; [1985] HCA 28, cited Water Board v Moustakas (1988) 180 CLR 491; [1988] HCA 12, applied
COUNSEL:	P H Morrison QC, with C C Heyworth-Smith, for the appellant in the Tabtill Appeal and the respondents/cross appellants in the Creswick Appeal L F Kelly SC, with A C Stumer, for the respondent in the Tabtill Appeal and the appellant/cross respondent in the Creswick Appeal
SOLICITORS:	DLA Piper Lawyers for the appellant in the Tabtill Appeal and the respondents/cross appellants in the Creswick Appeal Hopgood Ganim for the respondent in the Tabtill Appeal and the appellant/cross respondent in the Creswick Appeal