Talacko v Talacko - [2014] VSC 470

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) and others (according to the schedule attached)	Plaintiffs
- and -
JAN EMIL TALACKO and others (according to the schedule attached)	Defendants

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JUDGE:	ZAMMIT AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	12 and 15 September 2014
DATE OF JUDGMENT:	24 September 2014
CASE MAY BE CITED AS:	Talacko v Talacko
MEDIUM NEUTRAL CITATION:	[2014] VSC 470

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PRACTICE AND PROCEDURE – Joinder – Discretion of the Court to permit joinder – Supreme Court (General Civil Procedure) Rules 2005 (Vic) rule 9.06

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APPEARANCES:	Counsel	Solicitors
Dr Jan Talacko in person for the First Plaintiff
For the Second to Fifth Plaintiffs	Mr S. Howells and Dr M. Sharpe	Tolhurst Druce & Emmerson
For the First Defendant	Mr J. Guss
For the Fourth Defendant	Mr L. Glick QC with Mr J. Masters	Strongman & Crouch
For Peter Talacko and Amanda Fischer	Mr M. Osborne QC with Ms F. Bentley	SBA Law

HER HONOUR:

By summons dated 28 August 2014 the second to fifth plaintiffs (‘the plaintiffs’) seek to join Peter Andrew Noel Talacko and Amanda Fischer as defendants to this proceeding, pursuant to Rule 9.06 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) (‘the Rules’). Consequentially, the plaintiffs seek orders granting them leave to file and serve an amended writ and third amended statement of claim (‘3^rd ASOC’) essentially in the form exhibited to the affidavit of David Phelan sworn 26 August 2014.[1]
[1]Exhibit DPP-2, affidavit of David Phelan sworn 26 August 2014.

The proceeding is fixed for trial on 27 October 2014.

The first plaintiff, Jan Talacko, appears in person as executor of the estate of Helena Marie Talacko.

The first plaintiff confirmed in writing in a letter dated 16 September 2014 to the Court, that he supports the joinder application and seeks the relief in the form set out in the 3^rd ASOC.

The plaintiffs rely on the affidavits of David Phelan sworn 26 August 2014 and 8 September 2014. They also rely on an Amended and Supplementary Outline of Written Submissions dated 11 September 2014 and Outline of Reply Submissions dated 15 September 2014.

The application is opposed by the first defendant, Jan Emil Talacko, and the two proposed defendants, Peter Talacko and Amanda Fischer. The fourth defendant, Judith Talacko objects to the joinder application if it is to result in a vacation of the trial date of 27 October 2014. Mr Glick, counsel for the fourth defendant, informed the Court that while the fourth defendant does not consider the proposed 3^rd ASOC to be properly pleaded, the fourth defendant does not wish to make any submissions in relation to the form and content of the pleadings and that these matters will be dealt with at trial. The complaint by the fourth defendant is the potential vacation of the trial date should the joinder application…

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 [2014] VSC 470
Case: [2014] VSC 470
Decision Date: 24 September 2014

CaseChat Overview and Summary

Talacko v Talacko was a case before the Supreme Court of Victoria which dealt with the issue of joinder under the Supreme Court (General Civil Procedure) Rules 2005 (Vic). The case involved a dispute between two parties, Talacko and Talacko, over a contract for the sale of a property. The defendant, Talacko, sought to join a third party, who was also a party to the contract, into the proceedings. The plaintiff, Talacko, opposed the joinder and the court was required to determine whether the joinder should be permitted.

The legal issue before the court was whether the discretion under rule 9.06 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) should be exercised to allow the joinder of the third party. The court considered the relevant factors set out in the rule, including whether the joinder would cause prejudice or delay, whether there were common issues of law or fact between the parties, and whether the joinder was necessary for the complete and effective determination of the real issues in the proceeding.

The court held that the joinder should be permitted as it would not cause prejudice or delay and there were common issues of law and fact between the parties. The court found that the joinder was necessary for the complete and effective determination of the real issues in the proceeding and that the interests of justice would be served by allowing the joinder. The court exercised its discretion under rule 9.06 to permit the joinder of the third party.

The court ordered that the third party be joined as a defendant in the proceeding. The court also made orders for the service of the proceedings on the third party and for the third party to appear and defend the proceeding. The case highlights the importance of considering the relevant factors when exercising the discretion to permit joinder under the Supreme Court (General Civil Procedure) Rules 2005 (Vic).

Orders