Talacko v Talacko
[2011] FCA 326
•11 March 2011
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
ApplicantsAND: 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
ApplicantsAND: 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 Talacko which was the subject of the proceedings in the Supreme Court of Victoria. The first proceeding is a claim by a Mrs Komisakova, who says that she purchased the property in question. Mr Talacko contests this claim and says that he is the owner of this property. The second proceeding is a claim against Mrs Komisakova’s husband. Mr Talacko alleges that the husband misused a power of attorney granted to him by Mr Talacko and wrongfully purported to sell the land to his wife. A summons in each of the proceedings requires Mr Talacko’s appearance on 16 March 2011 and 29 March 2011 respectively.
The only new circumstances since Mr Talacko has been prevented from leaving Australia are the impending hearings in Slovakia. Expert evidence from lawyers in Slovakia has been filed on behalf of both the applicants and Mr Talacko concerning the possibility of adjournments of the hearings. There seems little real controversy between the experts. It appears from their evidence that in proceedings of this type multiple oral hearings are usual. Both proceedings are at relatively early stages, although the second is at an earlier stage than the first. Whilst it is not possible for either of the expert lawyers to say that adjournments of the hearings would be granted as a matter of certainty, there is no evidence that the applications will certainly proceed.
The existence of the two hearings and the desirability of the applicant’s attendance is not sufficient to displace the orders which presently exist. Mr Polacek, the expert lawyer for the applicants, expresses the opinion that the Court in Slovakia could consider an order of this Court preventing Mr Talacko from leaving Australia as a serious and justified reason to adjourn the hearings. It is appropriate that I indicate, for the benefit of the Slovakian Court, that the reason for the failure of Mr Talacko to attend the hearings in Slovakia flows from the orders made by this Court in Australia. It is likely that comity amongst courts internationally would mean that this factor would be considered by the Slovakian Court. The risk of any prejudice to Mr Talacko from the failure to attend the two hearings is not sufficient to warrant altering the existing travel restrictions.
Mr Williams SC, who appeared as counsel for Mr Talacko, raised a further consideration in support of the present application. He argued that the applicants had not established any interest to prevent Mr Talacko from attending the hearings. Indeed, he argued that Mr Talacko’s attendance at those hearings was in the interest of the applicants. He argued that unless Mr Talacko was successful in resisting the claim by the purported purchaser, any efforts by the applicants to have access to that asset would come to nothing.
Mr Bigmore QC, who appeared with Mr Howells and Mr Fary as counsel for the applicants, contended that his clients had other interests in ensuring that Mr Talacko remained within the jurisdiction. I accept for the purposes of this application that the applicants are in the best position to assess their own interests in the matter.
Consequently, the application for the removal of the restriction on Mr Talacko’s travel outside Australia is dismissed.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North. Associate:
Dated: 5 April 2011
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