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Bennett v Talacko

Bennett v Talacko

Case [2016] VSCA 179 28 July 2016

Civil Litigation & Procedure

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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…

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 [2016] VSCA 179
Case: [2016] VSCA 179
Decision Date: 28 July 2016

CaseChat Overview and Summary

Bennett v Talacko involved a dispute between judgment creditors and a judgment debtor, who had become bankrupt, over the enforcement of a money judgment in Australia in a foreign country. The dispute reached the High Court of Australia, which was tasked with determining whether the applications for a certificate under section 15(1) of the Foreign Judgments Act 1991 (Cth) were made correctly and whether they could be enforced despite the judgment debtor's bankruptcy. The creditors had applied for certificates in two different languages, but the trial judge deemed them invalid, leading to the creditors' appeal.

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