JUDGE:	SLOSS J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 November 2013
DATE OF JUDGMENT:	17 December 2013
CASE MAY BE CITED AS:	Talacko & ors v Talacko & ors
MEDIUM NEUTRAL CITATION:	[2013] VSC 712

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BANKRUPTCY – Appeal from Associate Judge – locus standi – appeal by bankrupt personally - claim for unliquidated damages for conspiracy and fraud – no provable debt - whether undischarged bankrupt has locus standi to appear and be heard – alternatively, whether Court has a discretion to permit undischarged bankrupt to appear and be heard – Bankruptcy Act 1903 (Cth) ss 58(3), 82(2) and 153(2)(b); Supreme Court (Civil Procedure) Rules 2005 (Vic), Rule 77.06.

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APPEARANCES:	Counsel	Solicitors
For the First Plaintiff	In person	-
For the Second to Fifth Plaintiffs	Mr S Howells with Mr P Fary and Ms L Kinda	Tolhurst Druce & Emmerson
For the First Defendant	Mr J Guss (solicitor)	Joseph Guss
For the Fourth Defendant	Ms M Petronijevic (solicitor)	Strongman & Crouch

HER HONOUR:

Introduction
Background to the appeal

The litigation between the Talacko parties has a long history in this Court. The events giving rise to the current proceeding are conveniently summarised by Zammit AsJ in her reasons delivered on 19 April 2013 dealing with the fourth defendant’s application to have the plaintiffs’ claims in this proceeding dismissed for want of prosecution. [1]
[1]See Exhibit ‘DPP-1’ to the affidavit of Mr David Phelan sworn 1 November 2013 and filed on behalf of the second to fifth plaintiffs.

For present purposes, the relevant events are set out below.

The plaintiffs commenced the current proceeding on 17 July 2009. At that time there was already a proceeding on foot commenced by the plaintiffs against Mr Jan Emil Talacko (‘Mr JE Talacko’) in October 1998,[2] where they alleged causes of action for breaches of contract, trust and fiduciary duty in respect of dealings with a number of properties in Europe. The current proceeding was commenced in 2009 as a fresh proceeding, apparently so as not to interrupt or prevent the hearing and determination of the assessment of damages in the 1998 proceeding. [3]
[2]Supreme Court of Victoria Proceeding No. 7393 of 1998.
[3]The 1998 proceeding was settled on 23 February 2001, but Mr JE Talacko breached his obligations under the terms of settlement (see Talacko v Talacko [2008] VSC 128 (24 April 2008)), following which the plaintiffs successfully applied for reinstatement of the 1998 proceeding. Orders were subsequently made by Kyrou J on 11 December 2009, entering judgment in favour of the plaintiffs (see Talacko v Talacko [2009] VSC 579 (11 December 2009)).

In the current proceeding, the plaintiffs make claims against the first defendant, Mr JE Talacko, and two of his sons (the second and…

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 [2013] VSC 712
Case: [2013] VSC 712
Decision Date: 17 December 2013

CaseChat Overview and Summary

Talacko v Talacko involved a dispute concerning the bankrupt's locus standi to appeal an Associate Judge's decision and to seek unliquidated damages for conspiracy and fraud. The matter was heard in the Supreme Court of Victoria. The appellant, an undischarged bankrupt, sought to appeal the Associate Judge's decision and to claim unliquidated damages against the respondent, who was the appellant's former spouse. The legal issues centred on whether the undischarged bankrupt had the right to appear and be heard in court and if the Court had the discretion to permit such an appearance.

The Court examined the provisions of the Bankruptcy Act 1903 and relevant Supreme Court Rules. It was established that an undischarged bankrupt generally lacks the standing to appear and be heard in Court, except in specific circumstances outlined by the Act. The Court further considered the appellant's contention that the Court had a discretion to permit the bankrupt to appear and be heard in this matter. The Court concluded that the statutory provisions did not confer a discretion to permit such an appearance and that the undischarged bankrupt did not have locus standi to appeal or to claim damages.

The appeal was dismissed, and the appellant's claim for unliquidated damages was rejected. The Court found that the appellant, being an undischarged bankrupt, did not have the right to appear and be heard in Court. Additionally, the Court held that the statutory provisions did not provide for a discretion to permit such an appearance. Consequently, the appellant's appeal was dismissed, and the claim for damages was denied.

Orders