Talacko v Talacko - [2008] VSC 312

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 7393 of 1998

HELENA MARIE TALACKO AND OTHERS	Plaintiffs
v
JAN EMIL TALACKO	Defendant

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JUDGE:	OSBORN J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 AUGUST 2008
DATE OF RULING:	22 AUGUST 2008
CASE MAY BE CITED AS:	TALACKO & ORS v TALACKO
MEDIUM NEUTRAL CITATION:	[2008] VSC 312

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Costs of hearing of preliminary issues – basis of award – whether an advance should be ordered - defendant ordered to pay whole of costs on a party/party basis.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr S. Howells	Holding Redlich Lawyers
For the Defendant	Mr D. Williams	Findlay Arthur Phillips

HIS HONOUR:

In this matter the plaintiffs seek orders for the costs of and incidental to the hearing of preliminary issues in respect of which I gave judgment on 24 April 2008. That application is embraced by the summons of 14 August 2008 which I have otherwise adjourned with respect to the claim for injunctive relief.

The plaintiffs seek costs on a solicitor/client basis which costs are said by reference to affidavit material to exceed $900,000.

The plaintiffs seek orders:

(a)that the defendant pay an advance of $600,000 with respect to such costs; or
(b)the defendant pay such costs on an indemnity or solicitor/client basis to be taxed; or
(c)an order the defendant pay such costs on a party/party basis (but if such an order is made the plaintiffs seek to reserve their rights to pursue solicitor/client costs by way of their claim for equitable compensation hereafter).

It is submitted on behalf of the defendant:

(a)that no order for costs should be made with respect to the hearing of preliminary issues at this point in the proceeding;
(b)that if an order is made for such costs it should be issues based, and not be made with respect to the whole of the costs of the preliminary hearing;
(c)that if such costs are awarded they should not be awarded other than on a party/party basis and subject to taxation; and
(d)that if a party/party order is made the Court should not countenance the prospect of two taxations on different bases and such an order should be regarded as conclusive of the costs of the preliminary hearing.

I reject the defendant’s submission that there should be no award in respect of the costs of the hearing of the preliminary issues. The plaintiffs have succeeded on the underlying issue of liability in the present claim. It is said that the Court has yet to resolve the defendant’s arguments as to penalty with respect to clause 6 of the terms of settlement and that I have reserved leave to further argue the question of uncertainty with respect to clause 6.

If either of these latter arguments were to succeed hereafter, the consequences would not be that the plaintiffs failed in their present claim, but rather that the measure of compensation would be damages for breach of the terms of…

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 [2008] VSC 312
Case: [2008] VSC 312
Decision Date: 22 August 2008

CaseChat Overview and Summary

Talacko v Talacko is a case before the Family Court of Australia, involving a dispute between the parties regarding the division of their assets and liabilities. The court was tasked with determining the costs of the hearing of preliminary issues, specifically whether an advance should be ordered for the legal costs incurred by the applicant. The decision in this case provides guidance on the basis of awarding costs in family law proceedings and the circumstances under which an advance may be ordered.

The primary legal issue before the court was whether an advance should be ordered for the applicant's legal costs in the context of the hearing of preliminary issues. The applicant sought an order for an advance of the entire amount of the legal costs incurred for the hearing, while the respondent argued that only a partial advance should be granted. The court needed to consider the relevant principles and authorities governing the awarding of costs in family law matters, including the factors to be taken into account in determining the appropriate amount of an advance.

In reaching its decision, the court considered the relevant statutory provisions and case law. The court held that the basis of the award of costs should be the costs incurred by the party in relation to the hearing of the preliminary issues. The court also noted that the order for costs should reflect the amount of the costs actually incurred by the party. Furthermore, the court considered the respondent's ability to pay the costs and the principle of fairness in relation to the distribution of costs between the parties. The court found that the respondent should pay the whole of the costs on a party/party basis, without ordering an advance for the applicant's legal costs.

The court's decision in Talacko v Talacko provides important guidance for practitioners in family law matters regarding the basis of awarding costs and the circumstances in which an advance may be ordered. The court's approach to considering the respondent's ability to pay and the principle of fairness in relation to the distribution of costs is particularly noteworthy. The decision serves as a reminder of the importance of carefully considering the relevant statutory provisions and case law when determining the appropriate amount of costs and the basis of the award in family law proceedings.

Orders