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Talacko v Talacko

Talacko v Talacko

Case [2009] VSC 387 10 September 2009

Contempt of Court

Abuse of Process

Specific Performance

Civil Litigation & Procedure

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 7393 of 1998

HELENA MARIE TALACKO, ALEXANDRA BENNETT, MARTIN TALACKO, ROWENA TALACKO AND MARGARET HELEN TALACKO	Plaintiffs
v
JAN EMIL TALACKO	Defendants

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JUDGE:	HABERSBERGER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 SEPTEMBER 2009
DATE OF JUDGMENT:	10 SEPTEMBER 2009
CASE MAY BE CITED AS:	TALACKO v TALACKO
MEDIUM NEUTRAL CITATION:	[2009] VSC 387

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Contempt of Court – Two alleged breaches of order by refusal to permit Special Referee to inspect properties – Whether time for compliance had been nominated – Whether letters by defendant’s attorney in Czech Republic constituted a refusal – Whether plaintiffs had to prove defendant still owner of properties at time of alleged refusal – Whether terms of order capable of compliance.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr SJ Howells	Holding Redlich
For the Defendant	Mr DJ Williams	Findlay Arthur Phillips

HIS HONOUR:

Introduction

By an amended summons filed on 27 August 2009, the plaintiffs sought, pursuant to r.75.06(2) of the Supreme Court (General Civil Procedure) Rules 2005 (“the Rules”), to have the defendant, Mr Talacko, dealt with for contempt for two breaches of paragraph 11 of an Order of Kyrou J made on 23 June 2009 and amended on 24 July 2009. The summons was initially filed on 24 August 2009 returnable in the Practice Court on 26 August 2009, at the same time as another summons alleging contempt against Mr Talacko in a related proceeding (No 7819 of 2009) (“the 2009 proceeding”). Counsel for the plaintiffs sought to amend the summons in this proceeding to add the second alleged breach which meant that the hearing had to be adjourned. The defendant had, in any event, sought an adjournment given that the summons had only recently been served. Accordingly, I adjourned the hearing until 1 September 2009. Judgment on the summons in the 2009 proceeding[1] will be handed down at the same time as this judgment.
[1]Talacko v Talaco [2009] VSC 385.

Paragraph 11 of the Order made on 23 June 2009 read as follows:

11.Subject to the laws of the Jurisdiction in which each Property is located, the Defendant must permit the special referee to inspect the properties internally and externally accompanied by a Representative of each party on a date or dates nominated by the special referee, being a date or dates on or before 31 July 2009.

Each Property was listed in the first column in Schedule A to the Order.

By his Order made on 24 July 2009 Kyrou J amended the date in the earlier Order from 31 July 2009 to 24 August 2009.

The Alleged Contempt

The two alleged breaches of the Order of Kyrou J made on 23 June 1990 as amended on 24 July 1990 (“the Order”) were as follows. First, that the defendant:

did refuse to permit the Special Referee appointed by the Court to inspect the Properties listed in Attachment A to the Orders by…

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 [2009] VSC 387
Case: [2009] VSC 387
Decision Date: 10 SEPTEMBER 2009

CaseChat Overview and Summary

Talacko v Talacko involved a dispute between the parties regarding alleged breaches of a court order. The matter was heard in the Family Court of Australia. The plaintiffs alleged that the defendant had breached the order by refusing to allow a Special Referee to inspect two properties, thereby obstructing the court's process. The dispute required the court to determine several legal issues, including whether the time for compliance with the order had been nominated, whether the defendant's letters to the Special Referee constituted a refusal to comply, and whether the plaintiffs needed to prove that the defendant was still the owner of the properties at the time of the alleged refusal. Additionally, the court had to consider whether the terms of the order were capable of compliance.

The court examined the nature and terms of the order, the defendant's correspondence, and the ownership status of the properties. The court found that the order did not specify a time for compliance, and therefore, the defendant's letters, which were sent after the order was made, could not be considered a refusal to comply. The court also concluded that the plaintiffs were not required to prove that the defendant was the owner of the properties at the time of the alleged refusal, as the order did not impose such a condition. Finally, the court held that the terms of the order were capable of compliance, as the defendant could have permitted the Special Referee to inspect the properties if they were still in his possession. The court ultimately found that the plaintiffs had not established the alleged breaches of the order.

The court dismissed the plaintiffs' application, finding that the plaintiffs had failed to prove the defendant's breaches of the order. The court did not make any further orders in relation to the dispute.

Orders