SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2016 0024
| ALEXANDRA BENNETT, MARTIN TALACKO & ROWENA TALACKO | Applicants |
| v | |
| JUDITH GAIL TALACKO (as appointed representative of the estate of Jan Emil Talacko) | First Respondent |
| and | |
| JAN TALACKO (as executor of the estate of Helena Marie Talacko) | Second Respondent |
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| JUDGES: | ASHLEY, PRIEST and SANTAMARIA JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 16 June 2016 |
| DATE OF JUDGMENT: | 28 July 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 179 |
| JUDGMENT APPEALED FROM: | Talacko v Talacko [2015] VSC 624 (Sloss J) |
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PRACTICE AND PROCEDURE – Appeal – Money judgment in Australian court – Judgment creditors’ wish to enforce judgment in foreign country – Two applications for certificate under s 15(1) Foreign Judgments Act 1991 (Cth) – Certificates issued, in different language – Judgment debtor bankrupt at time applications made – Judgment amount a ‘provable debt’ – Whether applications ‘duly made’ – Whether applications precluded by s 15(2) Foreign Judgments Act 1991 (Cth) on basis s 58(3) of Bankruptcy Act 1966 (Cth) operated as a ‘stay on enforcement of the judgment’ – Whether applications not ‘duly made’ on basis s 58(3)(a) or (b) precluded application for a certificate – Whether applications not ‘duly made’ because not supported by affidavit – Certificates declared invalid by trial judge – Foreign Judgments Act 1991 (Cth) s 15 – Bankruptcy Act 1966 (Cth) s 58(3) – Supreme Court (Miscellaneous Civil Proceedings) Rules 2008 O 11 – Application for leave to appeal granted – Appeal allowed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicants | Mr P H Solomon QC and Mr O M Ciolek | Brand Partners Commercial Lawyers |
| For the First Respondent | Mr L Glick QC and Mr J Masters | Strongman & Crouch Solicitors |
| For the Second Respondent | No appearance |
ASHLEY JA:
I have had the advantage of reading in draft the reasons for judgment of Priest and Santamaria JJA. With one addition, see [5] below, the totality of their Honours’ reasons describe the circumstances of the matter.
Their Honours arrive at opposite conclusions whether this appeal should succeed. In my opinion, for the reasons which follow, the applicants should have leave to appeal and the appeal should be allowed.
The question which must be decided, and no other question, is whether one or both of two certificates which the Prothonotary issued in purported compliance with s 15(1) of the Foreign Judgments Act 1991 (Cth) (‘the Foreign Judgments Act’) was issued in breach of that provision, either because an application seeking the issue of such certificate was made before ‘the expiration of any stay of enforcement of the judgment in question’; or else because, for some other reason, such application was not ‘duly made’.[1] It is the fact, at least since terms of settlement were signed on 23 February 2001 in proceeding No 7393 of 1998 (‘the 1998 proceeding’), that what may be called the J E Talacko interests have attempted, by a series of manoeuvres which have so far been almost completely successful, to retain certain of…
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- AGLC
- Bennett v Talacko [2016] VSCA 179
- Case
- [2016] VSCA 179
- Decision Date
CaseChat Overview and Summary
The central legal issues before the Court were whether the applications for the certificate were properly made, considering the judgment debtor's bankruptcy and the provisions of the Bankruptcy Act 1966 (Cth). Specifically, the Court had to consider whether section 58(3) of the Bankruptcy Act operated as a stay on the enforcement of the judgment, thereby precluding the applications for a certificate under section 15(2) of the Foreign Judgments Act. Additionally, the Court examined whether the applications were not "duly made" because they were not supported by an affidavit as required by rule 11 of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2008.
The Court found that the applications for the certificate were indeed "duly made" despite the judgment debtor's bankruptcy. It held that section 58(3) of the Bankruptcy Act did not preclude the making of the applications for a certificate, as the stay on enforcement did not extend to the making of the application itself. The Court also determined that the requirement for an affidavit was not strictly mandatory in this context and did not invalidate the applications. Consequently, the trial judge's declaration of the certificates as invalid was erroneous.
The High Court allowed the appeal and set aside the trial judge's decision. The Court granted the creditors leave to appeal and declared the applications for the certificate to be valid. This ruling allowed the creditors to proceed with enforcing the judgment in the foreign country, despite the judgment debtor's bankruptcy.
Orders
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Evidence
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Decision
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