KIEFEL CJ, GAGELER, KEANE, GORDON, EDELMAN, STEWARD AND GLEESON JJ
JUDITH GAIL TALACKO APPELLANT
AND
JAN TALACKO (AS EXECUTOR OF THE ESTATE OF HELENA MARIE TALACKO) & ORS RESPONDENTS
Talacko v Talacko
[2021] HCA 15
Date of Hearing: 10 March 2021 Date of Judgment: 12 May 2021
M111/2020
ORDER
1.The grant of special leave to appeal on the second ground be revoked with costs.
2. The appeal be dismissed.
3. Special leave to cross-appeal be granted and the cross-appeals be allowed.
4. Set aside order 2 of the orders of the Court of Appeal of the Supreme Court of Victoria made on 30 April 2020 and the orders of that Court made on 5 May 2020 and, in lieu of those orders, order that:
(a) the appeal be allowed;
(b) order 2 of the orders of the Supreme Court of Victoria made on 20 December 2018 be varied to replace the sum of $5,900,227.92 with the sum of $8,045,765.34 and the sum of $3,101,822.56 with the sum of $4,229,758.04;
(c) order 4 of the orders of the Supreme Court of Victoria made on 20 December 2018 be varied to replace the sum of $5,892,069.06 with the sum of $8,034,639.62 and the sum of $3,084,619.22 with the sum of $4,223,909.11; and
(d) the fourth respondent pay the appellants' costs of the application for leave to appeal and the appeal, to be taxed in default of agreement on the standard basis.
5. The appellant pay the costs of the appeal and the cross-appeals.
On appeal from the Supreme Court of Victoria
Representation
B W Walker SC with J B Masters for the appellant (instructed by Strongman & Crouch Solicitors)
W A Harris QC with K A Loxley for the first respondent (instructed by Patrick & Associates)
D B O'Sullivan QC and B R Kremer with O M Ciolek for the second to fifth respondents (instructed by Brand Partners)
Submitting appearances for the ninth and tenth respondents
No appearance for the sixth, seventh, eighth and eleventh respondents
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Talacko v Talacko
Tort – Unlawful means conspiracy – Loss or damage – Loss of chance – Loss of value of rights or chose in action – Damages – Where conspiracy by unlawful means undertaken to deprive first to fifth respondents ("Respondents") of value of chose in action arising from judgment in their favour – Where conspiracy involved agreements by which valuable properties in Czech Republic were transferred to impede recovery by Respondents of anticipated judgment debt ("Donation Agreement") – Where Respondents commenced proceedings in Czech Republic against two conspirators to set aside Donation Agreement ("Donation Agreement Proceedings") – Where Respondents had 20% prospect of successfully recovering through Donation Agreement Proceedings – Whether loss or damage proved such that unlawful means conspiracy was actionable – Whether damages for unlawful means conspiracy should be discounted to reflect 20% prospect…
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 v Talacko
Sign in free to access the full text
Details
AGLC
Talacko v Talacko [2021] HCA 15
Case
[2021] HCA 15
Decision Date
CaseChat Overview and Summary
The case involved an appeal and cross-appeals concerning an unlawful means conspiracy. The appellant, Judith, argued that no loss or damage had been suffered by the alleged conspiracy, thus a complete cause of action had not been established. The conspiracy was alleged to have been undertaken by certain respondents to deprive Helena and Peter Talacko of the value of a chose in action arising from a judgment in their favour. This conspiracy involved agreements by which valuable properties in the Czech Republic were transferred to impede the recovery by Helena and Peter of an anticipated judgment debt, through what was termed a "Donation Agreement".
The High Court was required to determine whether loss or damage had been proven to the extent that the unlawful means conspiracy was actionable. A further issue was whether damages for the unlawful means conspiracy should be discounted to reflect a 20% prospect of separate recovery through proceedings commenced in the Czech Republic to set aside the Donation Agreement. The Court also considered whether a submission regarding the ongoing nature of the Czech proceedings and the potential for legal expenses to be borne by the respondents should have been permitted on appeal.
The Court ultimately revoked the grant of special leave to appeal on one ground, finding that a submission regarding the ongoing Czech proceedings had not been properly raised in the courts below and might have been met with expert evidence. The appeal was dismissed, but the cross-appeals were allowed. The Court varied previous orders of the Supreme Court of Victoria, increasing the awarded sums for damages. The appellant was ordered to pay the costs of the appeal and cross-appeals, while the fourth respondent was ordered to pay the appellants' costs of the application for leave to appeal and the appeal.
Orders
Orders of the court
1. The grant of special leave to appeal on the second ground be revoked with costs.
2. The appeal be dismissed.
3. Special leave to cross-appeal be granted and the cross-appeals be allowed.
4. Set aside order 2 of the orders of the Court of Appeal of the Supreme Court of Victoria made on 30 April 2020 and the orders of that Court made on 5 May 2020 and, in lieu of those orders, order that:
(a) the appeal be allowed;
(b) order 2 of the orders of the Supreme Court of Victoria made on 20 December 2018 be varied to replace the sum of $5,900,227.92 with the sum of $8,045,765.34 and the sum of $3,101,822.56 with the sum of $4,229,758.04;
(c) order 4 of the orders of the Supreme Court of Victoria made on 20 December 2018 be varied to replace the sum of $5,892,069.06 with the sum of $8,034,639.62 and the sum of $3,084,619.22 with the sum of $4,223,909.11; and
(d) the fourth respondent pay the appellants' costs of the application for leave to appeal and the appeal, to be taxed in default of agreement on the standard basis.
5. The appellant pay the costs of the appeal and the cross-appeals.
Background
Background to the litigation
The parties with interests opposed to Helena and Peter, whom the trial judge, McDonald J, found to have conspired to harm Helena and Peter by unlawful means, were[1]: (i) Jan Emil; (ii) Jan Emil's wife, Judith; and (iii) two sons of Jan Emil and Judith, David and Paul. In the Court of Appeal and in this Court, no active part was played by the estate of Jan Emil, which is the sixth respondent to this appeal. Nor was any active part played by David and Paul, who are the seventh and eighth respondents to this appeal. The appellant, Judith, submits that no loss or damage was suffered by the unlawful means conspiracy, and hence denies that a complete cause of action for conspiracy has been established.[1]Talacko v Talacko [2015] VSC 287. The ninth and tenth respondents to this appeal were held not to have been parties to, nor liable for, the relevant conspiracy: [2015] VSC 287 at [156].Background In 1948, Alois and Anna Talacko, and their children, Helena, Peter, and Jan Emil, left their home in Czechoslovakia and settled in Australia. At the time of their departure, Alois and Anna owned considerable property, including the following ("the Properties"): (i) five buildings in the historic centre of Prague ("the Prague properties"); (ii) approximately 17 hectares of agricultural land at Řepy, on the outskirts of Prague; (iii) approximately 0.8 hectares of agricultural land in Kbely, a suburb of Prague; (iv) a 368 hectare private forest plantation at Suchá in the north‑east of what is now Slovakia; and (v) an apartment building and adjacent vacant land in Dresden, East Germany. Following the departure of the Talacko family, these properties were seized by Czechoslovakia and, in the case of (v), by East Germany. Alois and Anna died in Australia in 1964 and 1984 respectively. Following the Velvet Revolution and the end of communist rule in Czechoslovakia in 1989, discussions took place between Jan Emil, Helena, and Peter concerning restitution of the Properties. In September 1991, Jan Emil applied for restitution of the Prague properties. At that time, Jan Emil, as a Czech citizen and resident, was the only sibling entitled to make such a claim. In March 1992, the Prague properties were restored to Jan Emil, either entirely or in part. And, later, Jan Emil also had restored to him the Řepy, the Kbely and the Suchá properties. A dispute arose between Jan Emil, on the one hand, and Helena and Peter, on the other. Helena and Peter alleged that Jan Emil had agreed with them that any interest in the Properties that was recovered or obtained by any one or more of the siblings would be held for the benefit of all of them. In 1998, a proceeding was commenced against Jan Emil by Helena and by Peter's executor and heirs. The plaintiffs' allegations included that Jan Emil had held all properties to which restitution had been made to him as a fiduciary and that he had breached his fiduciary duties by failing to share those properties and the income earned from them with the plaintiffs. The plaintiffs claimed an equitable interest in the title to the properties held by Jan Emil that were formerly owned by Alois and Anna. The hearing commenced on 21 February 2001, but the proceeding settled two days later. By clause 1 of the settlement agreement dated 23 February 2001, Jan Emil was required to transfer his title to particular properties to persons nominated by Helena and those claiming through Peter's will. The titles in clause 1 which Jan Emil was required to transfer were all the rights that he had to the properties described above in Řepy, Kbely, Suchá, and Dresden but not the Prague properties. Clause 2 required Jan Emil to take various necessary steps to give effect to the transfers. Clause 3 provided for the sale by Jan Emil of any of these properties, in the event the transfers could not be given effect, with the proceeds to be paid to Helena and the plaintiffs claiming through Peter's will.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
KIEFEL CJ, GAGELER, KEANE, GORDON, EDELMAN, STEWARD AND GLEESON JJ
The new submission in this Court was not based upon the lack of a causal link and thus was not subject to the same flaw. It was effectively a submission that until the Donation Agreement Proceedings are concluded, it could not be known whether the expenses of the Donation Agreement Proceedings were beyond the scope of liability for the consequences of the unlawful means conspiracy. The new submission also was not clear from the second ground of appeal, which was said to support it. That ground relied only upon the ongoing nature of the Donation Agreement Proceedings and the possibility that a Czech court might order that the legal expenses be borne by the first to fifth respondents. There was no suggestion that the expenses might be irrecoverable because the reasons of the Czech court might put those expenses beyond the scope of liability for the unlawful means conspiracy. More fundamentally, as the second to fifth respondents submitted and Judith properly did not dispute, if this submission had been made in the courts below, it might have been met with expert evidence about the approach that the Czech courts might take. The point should not be taken on appeal to this Court when it might have been met by calling evidence below[66]. The grant of special leave on this ground should be revoked.[66]Water Board v Moustakas (1988) 180 CLR 491 at 497. See also Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438.Conclusion Orders should be made as follows:1.The grant of special leave to appeal on the second ground be revoked with costs.2.The appeal be dismissed.3.Special leave to cross-appeal be granted and the cross-appeals be allowed.4.Set aside order 2 of the orders of the Court of Appeal of the Supreme Court of Victoria made on 30 April 2020 and the orders of that Court made on 5 May 2020 and, in lieu of those orders, order that:(a)the appeal be allowed;(b)order 2 of the orders of the Supreme Court of Victoria made on 20 December 2018 be varied to replace the sum of $5,900,227.92 with the sum of $8,045,765.34 and the sum of $3,101,822.56 with the sum of $4,229,758.04;(c)order 4 of the orders of the Supreme Court of Victoria made on 20 December 2018 be varied to replace the sum of $5,892,069.06 with the sum of $8,034,639.62 and the sum of $3,084,619.22 with the sum of $4,223,909.11; and(d)the fourth respondent pay the appellants' costs of the application for leave to appeal and the appeal, to be taxed in default of agreement on the standard basis.5.The appellant pay the costs of the appeal and the cross-appeals.
Ratio Decidendi
Legal Principle Established
Established by:
KIEFEL CJ, GAGELER, KEANE, GORDON, EDELMAN, STEWARD AND GLEESON JJ