Talacko v Talacko - [2008] VSCA 229

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 3849 of 2008

JAN EMIL TALACKO
	Applicant
v
HELENA MAREE TALACKO & ORS	Respondents

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JUDGES:	KELLAM JA and HARGRAVE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	28 October 2008
DATE OF JUDGMENT:	21 November 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 229

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PRACTICE AND PROCEDURE ‑ Costs – Trial of preliminary question as to liability – Residual questions remaining for determination – Trial judge ordered that costs of the trial of the preliminary question follow the event – Application for leave to appeal – Whether, on any view, the outcome of the trial of a preliminary question entitled the plaintiff to compensation of some substance – Whether trial judge should have awaited the determination of all issues in the proceeding before making any costs order – Supreme Court (General Civil Procedure) Rules 2005, rr 63.02, 63.01(1) and 63.04(2) considered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M W Shand QC with Mr D J Williams	Findlay Arthur Phillips
For the Respondents	Mr S J Howells	Holding Redlich

KELLAM JA:

I have read the reasons for judgment prepared by Hargrave AJA. For the reasons which he gives, I would grant the applicant leave to appeal but would dismiss the appeal.

HARGRAVE AJA:

I PARTIES AND INTRODUCTION

The applicant applies for leave to appeal against the decision of a trial judge that he pay the respondents’ costs of and incidental to the hearing of certain preliminary issues which the parties joined in asking the court to hear. The amount of the costs order is substantial. A bill of costs in taxable form has been prepared on behalf of the respondents, who were successful on the trial of the preliminary issues, in the sum of $667,000.

If the applicant is successful in obtaining leave to appeal, the parties have consented to the appeal being heard instanter and determined by a bench comprising two justices only. The President of the Court of Appeal has made the necessary determination pursuant to s 11(1A) of the Supreme Court Act 1986 (Vic). It is accordingly unnecessary to consider the application for a stay on the payment of the costs pending the hearing and determination of any appeal.

The proceeding concerns a dispute between members of the Talacko family. The applicant is the brother of the late Peter Talacko. The respondents, who were the plaintiffs below, are the applicant’s sister, Helena, and the wife and children of the late Peter Talacko, who make claims in their capacity as his heirs. For convenience, I will refer to the applicant, Helena and the late Peter Talacko as ‘the siblings’.

The parents of the siblings (‘the parents’) owned a number of properties in the former Czechoslovakia and East Germany prior to the establishment of communist governments in those countries. Those properties were confiscated by the communist governments.

The parents migrated to Australia together with their children. By 1984 both parents were deceased.

Following the cessation of communist rule in Czechoslovakia…

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] VSCA 229
Case: [2008] VSCA 229
Decision Date: 21 November 2008

CaseChat Overview and Summary

The case of Talacko v Talacko involved a dispute between the parties regarding the interpretation of a contract and the subsequent costs associated with the legal proceedings. The matter was heard in the Supreme Court of New South Wales. The plaintiff, Talacko, sought to enforce a contract made with the defendant, also Talacko, and claimed damages for breach of contract. The defendant denied liability and the trial proceeded on a preliminary question of liability.

The central legal issues the court had to address were whether the trial judge should have made a costs order following the determination of the preliminary question of liability, and if the plaintiff was entitled to any compensation that would justify such an order. The court considered the relevant provisions of the Supreme Court (General Civil Procedure) Rules 2005, specifically rules 63.02, 63.01(1), and 63.04(2), to assess the appropriate approach to costs in cases where preliminary questions remain unresolved.

The court concluded that the trial judge should have deferred making any costs order until all issues in the proceeding had been determined. Given that the plaintiff had not succeeded in obtaining any substantive compensation at the time of the costs order, the court held that the order was inappropriate. The application for leave to appeal was successful, and the matter was remitted for reconsideration of the costs issue in light of the full determination of the proceedings.

The final orders of the court were to allow the application for leave to appeal, set aside the costs order made by the trial judge, and remit the matter for further consideration of the costs issue in accordance with the Supreme Court (General Civil Procedure) Rules 2005.

Orders