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Talacko v Talacko

Talacko v Talacko

Case [2018] VSC 751 7 December 2018

Compensatory Damages

Unlawful Means Conspiracy

Aggravated & Exemplary Damages

Unjust Enrichment

Civil Litigation & Procedure

Property Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2009 7819

JAN TALACKO (as Executor of the Estate of Helena Marie Talacko) & ORS (according to the Schedule attached)	Plaintiffs
v
JAN EMIL TALACKO & ORS (according to the Schedule attached)	Defendants

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JUDGE:	McDonald J
WHERE HELD:	Melbourne
DATE OF HEARING:	24, 25, 26 and 31 July, 1 August and 17 August 2018
DATE OF JUDGMENT:	7 December 2018
CASE MAY BE CITED AS:	Talacko v Talacko
MEDIUM NEUTRAL CITATION:	[2018] VSC 751

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DAMAGES – Unlawful means conspiracy – Agreement between first defendant and second and third defendants to transfer ownership of properties in Czech Republic prior to anticipated substantial equitable compensation judgment – Plaintiffs lost opportunity to enforce judgment debt against first defendant’s trustee in bankruptcy by resort to the transferred properties – Plaintiffs incurred costs and expenses in litigation in the Czech Republic seeking to set aside donation agreement – Damages to be assessed as at 30 September 2013 when, absent the donation agreement, the proceeds from sale of properties would have been available for distribution to the plaintiffs – Bankruptcy Act 1966 (Cth) ss 50(1), 58(3), 77(1)(a), 77(1)(e) – Foreign Judgments Act 1991 (Cth) ss 15(1), (2) – Supreme Court Act 1986 s 60(3) – Act No. 97 of 1963 of the Czech Republic ss 63, 64 – Act No. 91 of 2012 of the Czech Republic ss 14, 15 – Act No. 40 of 1964 of the Czech Republic s 42a.

AGGRAVATED DAMAGES – Defendants’ conspiracy actuated by malice and desire to hurt plaintiffs – Conduct of second and third defendants objectively worse than fourth defendant – Differential award of aggravated damages against joint tortfeasors.

EXEMPLARY DAMAGES – Conscious wrongdoing by defendants in contumelious disregard of plaintiffs’ rights – Exemplary damages not recoverable for benefit of estate of first and fifth plaintiffs – Administration and Probate Act 1958 s 29(2)(a).

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APPEARANCES:	Counsel	Solicitors
For the first plaintiff	Mr M Hooper	Grindal & Patrick
For the second to fifth plaintiffs	Mr P Solomon QC and Mr O M Ciolek	Brand Partners
For the fourth defendant	Mr D G Collins QC and Mr J B Masters	Strongman & Crouch

HIS HONOUR:

The background to the current proceeding is set out in detail in the liability judgment delivered on 7 August 2015,[1] and the Court of Appeal’s judgment on 27 June 2017.[2] I do not repeat that background. Annexure A to this judgment is a chronology prepared by the second to fifth plaintiffs, which helpfully summarises the long history of the litigation which precedes this judgment.
[1]Talacko v Talacko [2015] VSC 287.
[2]Bennett v Talacko [2017] VSCA 163.

For present purposes, it is sufficient to refer to four aspects of the history of the proceeding:

(i) On 23 February 2001, proceeding S CI 7393 of 1998 was settled by terms of settlement executed by the first defendant.

(ii) On 24 April 2008, Osborne J (as…

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

Details

AGLC: Talacko v Talacko [2018] VSC 751
Case: [2018] VSC 751
Decision Date: 7 December 2018

CaseChat Overview and Summary

Talacko v Talacko involved the plaintiffs seeking damages for the defendants' conspiracy to transfer ownership of properties in the Czech Republic prior to the plaintiffs' anticipated substantial equitable compensation judgment. The first defendant, along with the second and third defendants, agreed to transfer ownership of these properties, causing the plaintiffs to lose the opportunity to enforce their judgment debt against the first defendant's trustee in bankruptcy by using the transferred properties. The plaintiffs also incurred costs and expenses in litigation in the Czech Republic in an attempt to set aside the donation agreement.

The court had to determine the appropriate damages for the conspiracy, including aggravated and exemplary damages. The court held that the damages should be assessed as of 30 September 2013, when the proceeds from the sale of the properties would have been available for distribution to the plaintiffs if the donation agreement had not been executed. The court also considered the malice and desire to hurt the plaintiffs in awarding aggravated damages and the conscious wrongdoing by the defendants in awarding exemplary damages.

The court found that the second and third defendants' conduct was objectively worse than the fourth defendant, resulting in a differential award of aggravated damages against the joint tortfeasors. However, exemplary damages were not recoverable for the benefit of the estate of the first and fifth plaintiffs, as per the Administration and Probate Act 1958 s 29(2)(a). The court assessed the damages and ordered the defendants to pay the plaintiffs the appropriate amount.

The court's final orders included the assessment of damages and the allocation of liability among the defendants, with specific amounts awarded for aggravated and exemplary damages. The court also considered the relevant legislation, including the Bankruptcy Act 1966, the Foreign Judgments Act 1991, the Supreme Court Act 1986, and the Czech Republic's Acts No. 97 of 1963, No. 91 of 2012, and No. 40 of 1964.

Orders