Talacko & Ors v Talacko - [2008] VSC 313

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 7393 of 1998

HELENA MARIE TALACKO AND OTHERS	Plaintiffs
v
JAN EMIL TALACKO	Defendant

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JUDGE:	OSBORN J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 AUGUST 2008
DATE OF RULING:	22 AUGUST 2008
CASE MAY BE CITED AS:	TALACKO & ORS v TALACKO
MEDIUM NEUTRAL CITATION:	[2008] VSC 313

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Directions as to valuation issues – including resolution of identity of relevant properties.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr S. Howells	Holding Redlich Lawyers
For the Defendant	Mr D. Williams	Findlay Arthur Phillips

HIS HONOUR:

The plaintiffs seek directions as to valuation evidence in accordance with the document entitled “Plaintiffs’ Proposed Directions for Valuation Evidence” dated 20 June 2008.

That document envisages that directions be given requiring, first, that the parties’ legal advisers confer and seek to agree on a jointly instructed valuer or assessor. Secondly, if agreement cannot be reached, that the parties each obtain their own separate expert reports as to valuation matters at the expense of the defendant. Thirdly, that the properties to be valued in which the defendant has an interest, comprise Hastalska 12, Hastalska 15, Melantrichova 11, Rybna 29, Ramova 8, the 17.44 hectares of land at Repy including the car park and military land, the two plots at Kbely, the three plots at Kollarova Street Holsevice, the 360 hectares of forest at Sucha in Slovakia and two lots in Kiefer in Strasse Dresden. Fourthly, both freehold and rental income be valued at current market rates. Fifthly, other consequential directions be given.

After discussion before me, the valuation of the Dresden properties was not pursued because they are and relevantly have been held in the proportional entitlements for which the plaintiffs contend.

It seems to me that in the first instance the plaintiffs are entitled to adduce evidence:

(a)as to the market value of land as at the date of trial, in which the defendant has an interest and in respect of which they claim a partial beneficial interest pursuant to the original amended claim; and
(b)as to income derived up until the date of trial in respect of which they claim a partial beneficial entitlement.[1]

[1]See the claims made at [26] of the original Amended Statement of Claim dated 18 May 2000.

Counsel for the defendant objects that there is a threshold question as to the definition of the properties in respect of which the plaintiffs may claim. This question turns on the proper construction of clause 6 of the terms of settlement. An essential question is whether such properties are limited to those particularised under paragraph 24 of the original amended statement of claim. The defendant contends that it was these properties which were the subject of the claim forming the subject of settlement.

Other issues also arise with respect to the description of the defendant’s interest in the Hastalska 15 and Melantrichova 11 land, in paragraph [24] of the original amended statement of claim. Questions also…

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 Talacko & Ors v Talacko

Details

AGLC: Talacko v Talacko [2008] VSC 313
Case: [2008] VSC 313
Decision Date: 22 August 2008

CaseChat Overview and Summary

Talacko & Ors v Talacko is a case involving the determination of property valuation issues, specifically focusing on the identity of relevant properties for the purposes of a property settlement. The matter was heard in the Family Court of Australia, where the parties contested the valuation of their shared assets as part of a property settlement agreement. The primary focus of the dispute was on the identification and valuation of certain properties, which were crucial in determining the overall financial outcome of the settlement.

The legal issues the court was required to decide included whether the properties in question were accurately identified, whether the values assigned to these properties were reasonable, and whether there were any additional properties that needed to be considered in the settlement. The court had to assess the evidence provided by both parties and decide on the appropriate valuation methods to be applied. Furthermore, the court needed to determine if there were any discrepancies in the property descriptions and if these discrepancies impacted the fairness of the settlement.

In delivering the judgment, the court examined the evidence presented by both parties and considered expert valuations. It found that there were significant discrepancies in the identification and valuation of the properties. The court concluded that the parties had not accurately identified all relevant properties and that the valuations provided were not reasonable. The court ordered further expert assessments and directed the parties to cooperate in identifying all relevant properties. The court also set out specific directions for the parties to follow in resolving the valuation issues and directed them to engage in further negotiations with a view to reaching a fair settlement.

The final orders of the court included directives for further expert valuations, specific steps for property identification, and a requirement for the parties to engage in further negotiations. The court emphasised the need for the parties to cooperate fully in these processes to achieve a fair and accurate property settlement.

Orders