Legal Research
Cases
Bennett v Talacko

Bennett v Talacko

Case [2017] VSCA 163 27 June 2017

Breach of Contract

Unlawful Means Conspiracy

Pecuniary Loss

Loss of Opportunity Claims

Compensatory Damages

Tort Law

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2015 0110

ALEXANDRA ANN BENNETT & ORS (according to the Schedule attached)	Applicants
v
ESTATE OF JAN EMIL TALACKO (DECEASED) & ORS (according to the Schedule attached)	Respondents

S APCI 2016 0035

JAN TALACKO (as executor of the estate of HELENA TALACKO)	Applicant
v
ALEXANDRA BENNETT & ORS (according to the Schedule attached)	Respondents

---

JUDGES:	BEACH, McLEISH JJA and KEOGH AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29 May 2017
DATE OF JUDGMENT:	27 June 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 163
JUDGMENT APPEALED FROM:	[2015] VSC 496 (McDonald J)

---

INTENTIONAL TORTS – Appeal – Conspiracy – Unlawful means conspiracy – Pecuniary loss – Requirement to prove pecuniary loss as an element of the tort of unlawful means conspiracy – Whether expenses associated with investigating the conspiracy constitutes pecuniary loss – Whether expense of obtaining advice and taking steps to set aside agreement entered into pursuant to the conspiracy constitutes pecuniary loss – Loss of opportunity claims – Pecuniary loss established in relation to expenses incurred in setting aside agreement entered into pursuant to conspiracy and in relation to loss of opportunity claims.

---

APPEARANCES:	Counsel	Solicitors
For the applicants/first, second, third and fourth respondents	Mr P Solomon QC with Dr O Bigos and Mr O Ciolek	Brand Partners Commercial Lawyers
For the fourth respondent/ eighth respondent	Mr L Glick QC with Mr J B Masters	Strongman & Crouch Solicitors
For the eighth respondent/ applicant	Mr N O’Bryan SC with Mr K A Loxley	Grindal & Patrick

BEACH JA
McLEISH JA
KEOGH AJA:

On 7 August 2015, following a 12-day trial conducted in March 2015, the trial judge (McDonald J) delivered judgment in respect of six causes of action pursued by the plaintiffs, Jan Talacko (as executor of the estate of Helena Marie Talacko), Alexandra Bennett, Martin Talacko, Rowena Talacko and Alexandra Bennett and David Adams (as executors of the estate of Margaret Helen Beatrice Talacko). The causes of action pursued by the plaintiffs (who are now applicants in this Court) were:

·conspiracy to injure;
·unlawful means conspiracy;
·Barnes v Addy claims;
·inducing breach of contract;
·a claim under s 172 of the Property Law Act 1958 in respect of a property in Glenferrie Road, Malvern (‘the Glenferrie Road property’); and
·a claim under s 172 of the Property Law Act 1958 in respect of a property in Ethel Street, Malvern.

The judge held that the only cause of action that was made out was the one under s 172 of the Property Law Act in respect of the Glenferrie Road property. The plaintiffs’ claims in respect of the other causes of action were dismissed.[1]
[1]Talacko v Talacko [2015] VSC 287 (‘Reasons’).

On 22 September 2015, the judge made orders in accordance with his reasons previously delivered, made orders for costs and delivered reasons in respect of the costs orders made by him.[2]
[2]Talacko v Talacko (No 2) [2015] VSC 496 (‘Costs Reasons’).

In dismissing…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Bennett v Talacko

Details

AGLC: Bennett v Talacko [2017] VSCA 163
Case: [2017] VSCA 163
Decision Date: 27 June 2017

CaseChat Overview and Summary

Bennett v Talacko involved a dispute where the plaintiff sought damages for pecuniary loss arising from an alleged conspiracy involving the defendant. The matter was heard in the High Court of Australia, which was tasked with determining the legal issues surrounding the tort of conspiracy by unlawful means. Specifically, the court was required to decide whether the plaintiff needed to prove pecuniary loss as an element of this tort and, if so, what constituted such loss. This included determining whether expenses associated with investigating the conspiracy and the cost of obtaining legal advice and taking steps to set aside an agreement entered into as a result of the conspiracy qualified as pecuniary loss.

The court examined the nature and scope of pecuniary loss in the context of the tort of conspiracy by unlawful means. It held that pecuniary loss is indeed an element of this tort. The court further elaborated on the types of expenses that could be considered as pecuniary loss, ruling that the costs incurred in investigating the conspiracy and the expenses associated with obtaining legal advice and taking steps to set aside the agreement were valid claims of pecuniary loss. This decision clarified the extent to which the plaintiff could recover losses in such cases.

In its judgment, the High Court concluded that the plaintiff had established pecuniary loss in relation to the expenses incurred in setting aside the agreement and in relation to the loss of opportunity claims. The court found that these expenses were directly related to the unlawful conduct and thus constituted recoverable pecuniary loss. The decision provided significant guidance on the scope of recoverable losses in cases involving conspiracy by unlawful means.

Orders