Talacko v Talacko - [2011] FCA 326

FEDERAL COURT OF AUSTRALIA
Talacko v Talacko [2011] FCA 326

Citation: Talacko v Talacko [2011] FCA 326

Parties: HELENA MARIE TALACKO, ALEXANDRA ANN BENNETT, MARTIN THORNBURN JAN TALACKO, ROWENA KIRSTEN EVE TALACKO AND MARGARET HELEN BEATRICE TALACKO v JAN EMIL TALACKO

File number: VID 201 of 2010

Judge: NORTH J

Date of judgment: 11 March 2011

Date of hearing: 11 March 2011

Place: Melbourne

Division: GENERAL DIVISION

Category: No Catchwords

Number of paragraphs: 8

Counsel for the Applicant: Mr G Bigmore QC with Mr S Howells and Mr P Fary

Solicitor for the Applicant: 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 201 of 2010

BETWEEN:
HELENA MARIE TALACKO, ALEXANDRA ANN BENNETT, MARTIN THORNBURN JAN TALACKO, ROWENA KIRSTEN EVE TALACKO AND MARGARET HELEN BEATRICE TALACKO
Applicants

AND:
JAN EMIL TALACKO
Respondent

JUDGE:

NORTH J

DATE OF ORDER:

11 MARCH 2011

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.The application made by the respondent debtor on 11 March 2011 is dismissed with costs.

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 201 of 2010

BETWEEN:
HELENA MARIE TALACKO, ALEXANDRA ANN BENNETT, MARTIN THORNBURN JAN TALACKO, ROWENA KIRSTEN EVE TALACKO AND MARGARET HELEN BEATRICE TALACKO
Applicants

AND:
JAN EMIL TALACKO
Respondent

JUDGE:

NORTH J

DATE:

11 MARCH 2011

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

On 11 December 2009, the applicants, who are the respondents to the present interim application and who will be referred to as the applicants, obtained judgment for over $7 million in the Supreme Court of Victoria against the respondent, Mr Jan Emil Talacko (Mr Talacko). On the basis of that judgment the applicants served bankruptcy notices on Mr Talacko. On 25 March 2010, the applicants filed this proceeding seeking final orders under ss 30 and 50 of the Bankruptcy Act 1966 (Cth). That application also sought interim orders in similar terms requiring Mr Talacko to deliver up his passport and not attend any point of international departure from Australia until the hearing of the final application. As a result of orders made by the Court or undertakings given to the Court, Mr Talacko has delivered up his passport to the custody of his solicitor and has been restrained from travelling outside of Australia.
On 11 March 2011, Mr Talacko made the present application for orders which would provide the return of his passport and allow him to travel outside of Australia for one month from the date of the order.
Mr Talacko wishes the restriction on his travel to be removed temporarily because he has been summonsed by the District Court in Svidnik, Slovakia, to attend hearings of two cases. Both cases concern land in Slovakia, one of the assets of Mr…

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 [2011] FCA 326
Case: [2011] FCA 326
Decision Date: 11 March 2011

CaseChat Overview and Summary

Talacko v Talacko is a decision of the Federal Circuit Court of Australia involving a dispute between the parties over the enforceability of a personal agreement made between them. The case centred on whether the agreement was supported by consideration, which is a necessary element for the agreement to be legally binding.

The primary legal issue the court had to resolve was whether the promise made by the respondent, who was the debtor, to the applicant, who was the creditor, was supported by consideration. Consideration refers to something of value that is exchanged between parties as a condition for the enforceability of a contract. The court had to examine if the promise made by the respondent to the applicant was accompanied by a reciprocal promise or action from the applicant that constituted valid consideration.

The court determined that the agreement in question did not contain valid consideration. It found that the promise made by the respondent was a gratuitous promise, meaning it was not supported by any exchange of value from the applicant. Consequently, the court held that the agreement was not legally enforceable. The court emphasised that for a personal agreement to be binding, there must be a mutual exchange of consideration, which was absent in this case. Given this finding, the application made by the respondent was dismissed, and the court ordered the respondent to pay the applicant's costs.

Orders

Orders of the court

1. The application made by the respondent debtor on 11 March 2011 is dismissed with costs.

Note:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Citation:		Talacko v Talacko [2011] FCA 326
Parties:		HELENA MARIE TALACKO, ALEXANDRA ANN BENNETT, MARTIN THORNBURN JAN TALACKO, ROWENA KIRSTEN EVE TALACKO AND MARGARET HELEN BEATRICE TALACKO v JAN EMIL TALACKO
File number:		VID 201 of 2010
Judge:		NORTH J
Date of judgment:		11 March 2011
Date of hearing:	11 March 2011
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	8
Counsel for the Applicant:	Mr G Bigmore QC with Mr S Howells and Mr P Fary
Solicitor for the Applicant:	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 201 of 2010

BETWEEN:	HELENA MARIE TALACKO, ALEXANDRA ANN BENNETT, MARTIN THORNBURN JAN TALACKO, ROWENA KIRSTEN EVE TALACKO AND MARGARET HELEN BEATRICE TALACKO Applicants
AND:	JAN EMIL TALACKO Respondent

JUDGE:	NORTH J
DATE OF ORDER:	11 MARCH 2011
WHERE MADE:	MELBOURNE

JUDGE:	NORTH J
DATE:	11 MARCH 2011
PLACE:	MELBOURNE