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Talacko v Talacko

Talacko v Talacko

Case [2017] VSC 804 22 December 2017

Costs

Limitation Periods

Abuse of Process

Civil Litigation & Procedure

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 1998 07393

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

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JUDGE:	SLOSS J
WHERE HELD:	Melbourne
DATE OF HEARING:	12 September 2017
DATE OF JUDGMENT:	22 December 2017
CASE MAY BE CITED AS:	Talacko & Ors v Talacko
MEDIUM NEUTRAL CITATION:	[2017] VSC 804

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COSTS — Applications for costs of summonses before Associate Judge and notices of appeal from decision of Associate Judge — Where nature of proceeding changed and alleged grounds of error did not fall for determination — Held: no order as to costs.

COSTS — Duplication of representation — Where two parties sought to represent the deceased estate of a party — Where parties made complementary submissions — Whether double representation necessary — Held: unsuccessful applicant to bear own costs.

COSTS — Applications for relief upon alleged contraventions of Civil Procedure Act 2010 — Identification of costs thrown away — Where the issue of an amended certificate of finality by the Prothonotary rendered extant appeals futile — Where legal practitioners failed to inform the Court of the issue of the amended certificate in a timely manner — Where the change in the nature of the proceeding enabled the Court to hear and determine the real issues in dispute — Held: costs incurred in preparing for appeals only partially thrown away.

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APPEARANCES:	Counsel	Solicitors
For Ms Judith Gail Talacko (Applicant)	Mr M D Wyles QC and Mr J B Masters	Strongman & Crouch
For Mr David Jellicoe Findlay/ Ms S Findlay and Ms J Rigg (as executors of the Estate of Mr David Jellicoe Findlay) (Applicant)	Mr J Guss	Joseph Guss
For the 1^st Plaintiff (Respondent)	Mr B Patrick	Grindal & Patrick
For the 2^nd – 5^th Plaintiffs (Respondents)	Mr O M Ciolek	Brand Partners
For Tolhurst, Druce & Emmerson (Respondents)	Mr R Heath	K & L Gates
For Mr Stephen Howells (Respondent)	Mr T J Scotter	DLA Piper
The Prothonotary of the Supreme Court of Victoria	--	Victorian Government Solicitor’s Office

TABLE OF CONTENTS

Introduction......................................................................................................................................... 1

The Court’s discretion as to costs.................................................................................................... 2

Summary of procedural background to notices of appeal and summonses.......................... 3

The process (as agreed between the parties) to be adopted once the appeals were rendered futile.................................................................................................................................................... 6
Further summonses were issued in relation to the third certificate............................... 8
TDE proffered an apology in advance of the costs hearing........................................... 10
The hearing on 12 September 2017..................................................................................... 10
Mr Howells proffered an apology after the costs hearing.............................................. 13

Identification of the costs that were ‘thrown away’ (re the second certificate) or occasioned by late disclosure (of the third certificate)................................................................................................. 14

Costs that were ‘thrown away’ by the issue of the second certificate........................... 15
Costs occasioned by late disclosure of the third certificate............................................ 17

Issues as to costs in relation to the 8 May 2015 summonses..................................................... 25

Ms Talacko…

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 [2017] VSC 804
Case: [2017] VSC 804
Decision Date: 22 December 2017

CaseChat Overview and Summary

In Talacko v Talacko, the parties were involved in a legal dispute before the Supreme Court of Queensland. The proceedings arose from the estate of a deceased individual, with the primary issue being the costs associated with various stages of the litigation. The court was tasked with deciding several legal issues related to the costs incurred by the parties, particularly in relation to summonses before an Associate Judge, notices of appeal, and the application of the Civil Procedure Act 2010.

The primary legal issues included whether the unsuccessful applicants should bear the costs of summonses before an Associate Judge and notices of appeal, given that the nature of the proceeding had changed and the alleged grounds of error were no longer determinable. Additionally, the court had to address whether the duplication of representation was necessary and whether the unsuccessful applicant should bear the costs of the deceased party's estate. Another significant issue was whether the costs incurred in preparing for appeals should be considered "thrown away" under the Civil Procedure Act 2010, given that the issue of an amended certificate of finality by the Prothonotary rendered the appeals futile, and the legal practitioners failed to inform the court of this issue in a timely manner.

The court ruled that no order should be made as to the costs of summonses before an Associate Judge and notices of appeal, as the nature of the proceeding had changed, and the alleged grounds of error no longer fell for determination. Regarding the duplication of representation, the court found that it was not necessary, and the unsuccessful applicant was ordered to bear their own costs. The court also found that the costs incurred in preparing for the appeals were only partially thrown away, as the issue of the amended certificate of finality rendered the appeals futile, and the legal practitioners' failure to inform the court of this in a timely manner contributed to the costs being incurred. The court thus determined that the costs incurred in preparing for the appeals were only partially thrown away, and the unsuccessful applicant was liable for a portion of those costs.

No further orders were made in the decision, as the court had addressed all the significant legal issues related to the costs incurred by the parties throughout the litigation process.

Orders