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Howells v Talacko

Howells v Talacko

Case [2017] VSC 353 27 June 2017

Limitation Periods

Interlocutory Orders

Freezing Order

Civil Litigation & Procedure

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT
COMMERCIAL LIST

S ECI 2016 001142

STEPHEN HOWELLS	Plaintiff
v
JAN TALACKO (Personally, and also as executor of the estate of Helena Marie Talacko)	Defendant

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JUDGE:	JUDD J
WHERE HELD:	Melbourne
DATE OF HEARING:	8 May 2017
DATE OF JUDGMENT:	27 June 2017
CASE MAY BE CITED AS:	Howells v Talacko
MEDIUM NEUTRAL CITATION:	[2017] VSC 353

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BARRISTER — Claim for fees — Lien — Fruits of litigation.

PRACTICE and PROCEDURE — Interlocutory application — Declaration of lien — Freezing order.

INJUNCTION — Freezing order over a specified fund.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms S Cherry with Mr J Ruffles	Brand Partners
For the Defendant	Mr D Bongiorno	Grindal & Patrick

HIS HONOUR:

On 8 July 2016, Stephen Howells, a barrister, commenced a proceeding against Dr Jan Talacko, who was sued on his own behalf and as executor of the estate of Helena Marie Talacko, now deceased. Litigation involving the Talacko family has been conducted in this court since 1998. An overview of the family dispute and resulting litigation, is helpfully set out in the judgment of McDonald J in Talacko v Talacko.[1] In that proceeding Dr Talacko, as executor of the estate of Helena Marie Talacko, was the first plaintiff. He was given leave to appear in person. The second to fifth plaintiffs were represented by Mr Howells. In an earlier proceeding, heard initially by Osborn J (as his Honour then was) and later by Kyrou J (as his Honour then was), Mr Howells represented all plaintiffs, including Helena Marie, against Jan Emil Talacko.[2] The various proceedings related to the ownership of a number of properties in several jurisdictions in Europe.
[1][2015] VSC 287.
[2][2009] VSC 533.

There are three relevant branches of the Talacko family, each of which descended from one of the three children of Alois and Anna Talacko. The relevant living members are cousins, divided into what is referred to as the Sydney cousins (Alexandra Ann Bennet, Martin Jan Thorburn Talacko and Rowena Kirsten Eve Talacko); the Melbourne cousins (Anna Talacko and Dr Talacko); and the Czech cousins (Paul Anthony Talacko, Peter Andrew Noel Talacko, David Talacko and Nicole Vincent).

In 1998 Helena Marie was matriarch of the Melbourne branch of the family. Peter Alois Talacko was patriarch of the Sydney branch of the family. They sued their brother Jan Emil for breach of an agreement arising out of the restitution of private property following the ‘Velvet Revolution’ of November 1989. The original proceeding, commenced in 1998, was compromised soon after the trial commenced, with terms of settlement recording the obligation of Jan Emil to transfer certain property to the plaintiffs, or their nominees. Jan Emil failed to perform his obligations and the proceeding was reinstated for enforcement. The reinstated proceeding was first heard by Osborn J,[3] who concluded that Jan Emil had breached the terms of settlement. That finding gave rise to a…

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 Howells v Talacko

Details

AGLC: Howells v Talacko [2017] VSC 353
Case: [2017] VSC 353
Decision Date: 27 June 2017

CaseChat Overview and Summary

The dispute in Howells v Talacko arose between a barrister, the applicant, and a party to litigation, the respondent. The barrister, seeking to enforce a lien over a settlement fund in the respondent's favour, made an application for an interlocutory declaration of the lien and a freezing order over the fund. The court was required to determine whether the application was an appropriate means of enforcing the lien and whether a freezing order was justified.

The court considered whether the application was an appropriate means of enforcing the lien and whether a freezing order was justified. It noted that a lien was a property right in the fund, which the court could enforce by a freezing order. However, the court also recognised that the application was premature, as the respondent had not yet been served with the proceedings and had not had an opportunity to respond. The court further noted that the applicant had not demonstrated that the freezing order was necessary to prevent the dissipation of the fund, as the respondent had no apparent means of accessing the fund.

The court concluded that the application was premature and that the applicant had not demonstrated the necessity for a freezing order. The court dismissed the application, noting that the applicant could seek to enforce the lien by other means, such as a garnishee order or an interlocutory judgment. The court also noted that the applicant could apply for a freezing order at a later stage if the circumstances changed.

No final orders were made in this case.

Orders