Talacko v Bennett & Ors; Talacko v Talacko & Ors - [2017] HCATrans 267

[2017] HCATrans 267

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M97 of 2017

B e t w e e n -
JUDITH GAIL TALACKO
Applicant
and
ALEXANDRA ANN BENNETT
First Respondent
MARTIN THORBURN JAN TALACKO
Second Respondent
ROWENA KIRSTEN EVE TALACKO
Third Respondent
ALEXANDRA ANN BENNETT AND DAVID ADAMS (AS EXECUTORS OF THE ESTATE OF MARGARET HELEN TALACKO)
Fourth Respondent
JAN TALACKO (AS EXECUTOR OF THE ESTATE OF HELENA MARIE TALACKO)
Fifth Respondent
ESTATE OF JAN EMIL TALACKO (DECEASED) (AN UNDISCHARGED BANKRUPT)
Sixth Respondent
DAVID TALACKO
Seventh Respondent
PAUL ANTHONY TALACKO
Eighth Respondent
PETER ANDREW NOEL TALACKO
Ninth Respondent
AMANDA MAREE FISCHER
Tenth Respondent
STATE TRUSTEES LTD (ACN 064 593 148)
Eleventh Respondent

Office of the Registry
Melbourne No M98 of 2017

B e t w e e n -
JUDITH GAIL TALACKO
Applicant
and
JAN TALACKO (AS EXECUTOR OF THE ESTATE OF HELENA MARIE TALACKO)
First Respondent
ALEXANDRA ANN BENNETT
Second Respondent
MARTIN THORBURN JAN TALACKO
Third Respondent
ROWENA KIRSTEN EVE TALACKO
Fourth Respondent
ALEXANDRA ANN BENNETT AND DAVID ADAMS (AS EXECUTORS OF THE ESTATE OF MARGARET HELEN TALACKO)
Fifth Respondent
ESTATE OF JAN EMIL TALACKO (DECEASED) (AN UNDISCHARGED BANKRUPT)
Sixth Respondent
DAVID TALACKO
Seventh Respondent
PAUL ANTHONY TALACKO
Eighth Respondent
PETER ANDREW NOEL TALACKO
Ninth Respondent
AMANDA MAREE FISCHER
Tenth Respondent
STATE TRUSTEES LTD (ACN 064 593 148)
Eleventh Respondent
Applications for special leave to appeal

GAGELER J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 15 DECEMBER 2017, AT 9.31 AM

____________________

MR B.W. WALKER, SC: May it please the Court, I appear for the applicant with my learned friend, MR J.B. MASTERS, in both those cases. (instructed by Strongman & Crouch)

MR P.H. SOLOMON, QC: If your Honours please, I appear with my learned friend, MR O.M. CIOLEK, for the first to fourth respondents in M97/2017 and the second to fifth respondents in M98/2017. (instructed by Brand Partners Commercial Lawyers)

GAGELER J: Yes, Mr Walker.

MR WALKER: There are, as your Honours will notice, some submitting appearances that complement the two cases.

GAGELER J: Yes.

MR WALKER: Your Honours, as things stand, the effect of the Court of Appeal’s disposition of the appeals to it is that there will be a remitted hearing for assessment of damages, including for loss of a chance. That is, the reasons for the order which itself is in perfectly general terms for the assessment of damages are reasons which have to do with the not only completion of the cause of action but the fact that there has been the loss of a chance.

GAGELER J: The points you wish to raise at this point are points that you could raise in a subsequent appeal from the ultimate order to be made?

MR WALKER: I think my answer to that is no, your Honour. I do not want to poison the ground ahead of me, but the situation is this. The…

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.

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Details

Case: [2017] HCATrans 267
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered two appeals, *Talacko v Bennett & Ors* and *Talacko v Talacko & Ors*, which concerned the interpretation and application of the *Corporations Act 2001* (Cth) in the context of a dispute over the ownership and control of a company. The primary dispute involved allegations of oppressive conduct and breach of directors' duties, with claims brought by Mr. Talacko against other directors and shareholders of the company.

The central legal issues before the High Court were whether the primary judge had erred in their findings regarding the oppressive conduct of the respondents and whether the court had correctly exercised its discretion in making certain orders under the *Corporations Act*. Specifically, the Court had to determine the proper approach to identifying and remedying conduct that is oppressive, unfairly prejudicial, or unfairly discriminatory to a member of a company, and the scope of the court's power to make orders to wind up the company or regulate its affairs.

The High Court's reasoning focused on the statutory language of section 232 of the *Corporations Act* and the principles established in previous case law concerning oppressive conduct. Their Honours emphasised that the assessment of oppression is objective, requiring a consideration of the expectations of the members of the company, both as set out in the company's constitution and as reasonably held in the circumstances. The Court also analysed the nature of the discretion vested in the court under section 233 of the *Corporations Act*, noting that while broad, it must be exercised judicially and in accordance with the purpose of preventing oppression. The Court found that the primary judge had misapplied the legal test for oppression and had erred in the exercise of their discretion in making certain orders.

The High Court allowed the appeals, set aside the orders of the lower courts, and remitted the matters to the Federal Court of Australia for redetermination in accordance with the reasons of the High Court.

Orders