Talacko v Talacko

[2011] FCA 385

FEDERAL COURT OF AUSTRALIA

Talacko v Talacko [2011] FCA 385

Citation:		Talacko v Talacko [2011] FCA 385
Parties:		HELENA MARIE TALACKO, ALEXANDRA ANNA BENNETT, MARTIN THORBURN JAN TALACKO, ROWENA KIRSTEN EVE TALACKO and MARGARET HELEN BEATRICE TALACKO v JAN EMIL TALACKO
File number(s):		VID 259 of 2011
Judge:		RYAN J
Date of judgment:		12 April 2011
Date of hearing:	12 April 2011
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	1
Counsel for the Applicants:	Mr P Fary
Solicitor for the Applicants:	Holding Redlich
Counsel for the Respondent:	Mr D Williams SC
Solicitor for the Respondent:	Findlay Arthur Phillips

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 259 of 2011

IN THE MATTER OF JAN EMIL TALACKO, A DEBTOR

BETWEEN:

HELENA MARIE TALACKO
First Applicant

ALEXANDRA ANNA BENNETT
Second Applicant

MARTIN THORBURN JAN TALACKO
Third Applicant

ROWENA KIRSTEN EVE TALACKO
Fourth Applicant

MARGARET HELEN BEATRICE TALACKO
Fifth Applicant

AND:

JAN EMIL TALACKO
Respondent

JUDGE:	RYAN J
DATE OF ORDER:	12 APRIL 2011
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.To the extent necessary, the time for service of the creditor’s petition be abridged to enable the said petition to be heard this day.

2.The hearing of the creditor’s petition be adjourned to 29 July 2011.

3.In addition to the power conferred on the Official Trustee by paragraph 2 of the Order of North J of 30 August 2010 as varied by Order of 28 March 2011, the Official Trustee is authorised, to the extent that such power may not have been conferred by the said Order of North J as varied, to exercise, and take proceedings for exercising, in respect of the property of the respondent debtor, all or any of the powers identified in s 116(1)(b) of the Bankruptcy Act1966 (Cth) (“the Bankruptcy Act”) and to require the respondent debtor to do, in respect of such property, any of the acts or things identified in s 77(1)(e) of the Bankruptcy Act.

4.Liberty be reserved to any party to apply on not less than 48 hours notice in writing to the other parties.

5.The costs of all parties of this day be reserved.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 259 of 2011

IN THE MATTER OF JAN EMIL TALACKO, A DEBTOR

BETWEEN:

HELENA MARIE TALACKO
First Applicant

ALEXANDRA ANNA BENNETT
Second Applicant

MARTIN THORBURN JAN TALACKO
Third Applicant

ROWENA KIRSTEN EVE TALACKO
Fourth Applicant

MARGARET HELEN BEATRICE TALACKO
Fifth Applicant

AND:

JAN EMIL TALACKO
Respondent

JUDGE:	RYAN J
DATE:	12 APRIL 2011
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. In this matter, as will be apparent from the discussion which I have had with Counsel on each side, my main concern has been to acquire some understanding of the way in which the making of a sequestration order and the consequent appointment of a trustee in bankruptcy would serve to enhance the preservation of the property of the debtor for the benefit of creditors.  I have in mind in that context, particularly, the property of the debtor which is located in Europe and includes that at Sucha in Slovakia which has been the subject of a purported gift or donation by the debtor to two of his sons.  Giving the matter as much consideration as I have been able to in the short time in which this urgent application has been brought on for hearing, I have come to the conclusion that the difference, if any, is not so significant as to warrant a departure from the normal rule that a debtor who has pending litigation on foot should be allowed to pursue that litigation to finality without the impediment of a sequestration order.  That general rule is supported by the authorities canvassed by Counsel in their written submissions.  Accordingly, I proposed to order that:

   (1)       The further hearing of the creditors’ petition be adjourned to 29 July 2011.

   (2)To the extent necessary the time for service of the creditors’ petition be abridged to enable the petition to be heard this day.  As well as adjourning the petition to the date which I have mentioned, which is the date when the order of North J, as varied, will cease to have effect, I shall order that, in addition to the power conferred on the official trustee by paragraph 2 of the order of North J of 30 August 2010, as varied by order on 28 March 2011, to take control of the respondent’s property, the official trustee be authorised, to the extent that such power may not have been conferred by the said order of North J, to exercise and take proceedings for exercising in respect of the property of the respondent all or any of the powers identified in s 116(1)(b) of the Bankruptcy Act 1966 (Cth) (“the Bankruptcy Act”), and to require the respondent to do in respect of such property any of the acts or things identified in s 77(1)(e) of the Bankruptcy Act.

   (3)Liberty to apply will be reserved continuing the similar reservation by North J;  and

   (4)I shall order that the costs of all parties of this day be reserved.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Associate:

Dated:       18 April 2011