Talacko v Talacko

Case [2010] FCA 193

FEDERAL COURT OF AUSTRALIA

Talacko v Talacko [2010] FCA 193

Citation: Talacko v Talacko [2010] FCA 193
Parties: HELENA MARIE TALACKO, ALEXANDRA ANN BENNETT, MARTIN THORBURN JAN TALACKO, ROWENA KIRSTEN EVE TALACKO and MARGARET HELEN BEATRICE TALACKO v JAN EMIL TALACKO
File number: VID 142 of 2010
Judge: DODDS-STREETON J
Date of judgment: 5 March 2010
Catchwords: PRACTICE AND PROCEDURE: Application pursuant to ss 30 and 50 of the Bankruptcy Act 1966 – whether trustee should take control of respondent’s property – whether respondent should be restrained from departing Australia.
Legislation: Bankruptcy Act 1966 (Cth), ss 30, 50.
Evidence Act 1966 (Cth), ss 91(1), 97(1)(a), 100(1), 135.
Cases cited: Deputy Commissioner of Taxation v Clyne (1983) 50 ALR 118
Tasman KB Pty Limited v Watkins [2004] FCA 1190
Re Allan Joseph Brazell Ex parte: Royal Nominees [1995] FCA 1276
Weiss v Official Trustee in Bankruptcy (1983) 1 FCR 40.
ASIC v Wiggins (1998) 90 FCR 314
Date of hearing: 5 March 2010
Place: Melbourne
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 52
Counsel for the Applicants: Mr G Bigmore QC and Mr P Fary
Solicitor for the Applicants: Findlay Arthur Phillips
Counsel for the Respondent: Mr MD Wyles SC and Dr TJF McEvoy
Solicitor for the Respondent: Holding Redlich

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 142 of 2010
BETWEEN:

HELENA MARIE TALACKO
First Applicant

ALEXANDRA ANN 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:

DODDS-STREETON J

DATE OF ORDER:

5 MARCH 2010

WHERE MADE:

MELBOURNE

UPON THE UNDERTAKING OF Michael Witt of Findlay Arthur Phillips to hold the Respondent’s passports and not return them to the Respondent or any other person at the Respondent’s direction unless the Court so orders or the Applicants’ solicitors consent in writing, and that otherwise the undertaking shall continue until 5:00pm on 24 March 2010.

THE COURT ORDERS THAT:

1.Until further order, the Respondent, Jan Emil Talacko, be restrained from taking any further steps by himself or by his employees, agents or attorneys for the purpose of or in furtherance of selling, transferring, donating or otherwise dealing with any of the properties listed in Attachment “A”.

2.The Court directs that James Stewart of Ferrier Hodgson, a Registered Trustee, take control of the Respondent’s property until further order.  

3.Liberty to apply be reserved.

4.The time for service of this application be abridged.

5.Costs be reserved.

6.The further hearing of the application is adjourned until 24 March 2010.

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 142 of 2010
BETWEEN:

HELENA MARIE TALACKO
First Applicant

ALEXANDRA ANN BENNETT
Second Applicant

MARTIN THORBURN JAN TALACKO
Third Applicant

ROWENA KIRSTEN EVE TALACKO
Fourth Applicant

MARGARET HELEN…

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Talacko v Talacko [2010] FCA 193
Case
[2010] FCA 193
Decision Date

CaseChat Overview and Summary

Talacko v Talacko involved a dispute concerning the enforcement of bankruptcy-related orders against the debtor, Mr Talacko. The case was heard in the Federal Court of Australia. The primary issue was whether the Court should grant an application for orders under section 50 of the Bankruptcy Act 1966 (Cth), which allows the Court to take control of a debtor’s property before sequestration if it is in the creditors' interests. Specifically, the applicants sought control over certain properties of the debtor and the delivery of the debtor's passports to ensure compliance with the bankruptcy notice.

The court considered whether the applicants had demonstrated that such orders were necessary to protect the interests of creditors. It examined the specific properties listed in the application and assessed whether the restrictions on travel were appropriate under section 30 of the Act. The court's reasoning hinged on the necessity to prevent the dissipation of assets and the risk of the debtor leaving the jurisdiction. The court found that while the application broadly aligned with the creditors' interests, the specific properties listed in Attachment A needed to be clarified. Additionally, the court determined that travel restraints should not be imposed in the terms sought by the applicants, aligning with the approach in Brazell, where the debtor's passports were to be surrendered to the Court or the debtor's solicitor, with appropriate undertakings sought.

In conclusion, the Federal Court found that the applicants had established the necessity for certain orders in the interests of creditors. However, the order concerning the properties would need to be adjusted to reflect its application only to specific properties listed in Attachment A. The court declined to impose travel restraints as sought by the applicants but directed that the debtor’s passports be delivered to the Court or his solicitor, from whom appropriate undertakings should be obtained.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Section 50 of the Act is aimed at facilitating the preservation and protection of the debtor’s property, so that in the event of sequestration, it will be available for equitable distribution to creditors. The considerations relevant to making an order thereunder differ from those relevant to the enforcement of a judgment and the present application differs from those recently made before the Supreme Court of Victoria.CONCLUSION In my view, the applicants have established that orders broadly in the terms sought in paragraphs 1(a) and 1(b) of the applicants’ Contentions are necessary in the interests of creditors. The order in paragraph 1(a) will, however, require adjustment to reflect its application only to certain properties listed in Attachment A. In my opinion, for the reasons given by Cooper J in Brazell, travel restraints should not be imposed on the respondent in the terms sought pursuant to s 30 of the Act. Rather, as in Brazell, the appropriate course is to order that the respondent’s passports be delivered to the Court or his solicitor, from whom appropriate undertakings should be sought.

Ratio Decidendi

Legal Principle Established

Section 50 of the Act provides:Taking control of debtor’s property before sequestration(1)At any time after a bankruptcy notice is issued, or a creditor’s petition is presented, in relation to a debtor, but before the debtor becomes a bankrupt, the Court may:(a)direct the Official Trustee or a specified registered trustee to take control of the debtor’s property; and(b) make any other orders in relation to the property.(1A) The Court may give a direction or make an order only if: (a) a creditor has applied for the Court to make a direction; and(b)the Court is satisfied that it is in the interests of the creditors to do so; and(c) the debtor has not complied with the bankruptcy notice.(1B)If the Court directs a trustee to take control of the debtor’s property, the Court must specify when the control is to end.(2)Without limiting the generality of subsection (1), the Court may, at any time after giving a direction under subsection (1), summon the debtor, or an examinable person in relation to the debtor, for examination under this section in relation to the debtor.(3)A summons to a person under subsection (2) shall require the person to attend:(a)at a specified place and at a specified time on a specified day; and(b)before the Court, the Registrar or a magistrate, as specified in the summons;to be examined on oath under this section about the debtor and the debtor’s examinable affairs.(4)A summons to a person under subsection (2) may require the person to produce at the examination books (including books of an associated entity of the debtor) that:(a) are in the possession of the first‑mentioned person; and(b)relate to the debtor or to any of the debtor’s examinable affairs.(5)For the purpose of the examination under this section of a person summoned under subsection (2), subsections 81(2) to (17), inclusive, apply, with any modifications prescribed by the regulations, as if:(a)a sequestration order had been made against the debtor when the Court gave the direction under subsection (1) of this section;(b) the examination were being held under section 81; and(c)a reference in those subsections to a creditor were a reference to a person who has a debt that would be provable in the debtor’s bankruptcy if a sequestration order had been made as mentioned in paragraph (a) of this subsection. Section 30 of the Act provides:General powers of Courts in bankruptcy(1)The Court:(a)has full power to decide all questions, whether of law or of fact, in any case of bankruptcy or any matter under Part IX, X or XI coming within the cognizance of the Court; and(b)may make such orders (including declaratory orders and orders granting injunctions or other equitable remedies) as the Court considers necessary for the purposes of carrying out or giving effect to this Act in any such case or matter.(2)The Court may direct such inquiries to be made and accounts to be taken for the purposes of any proceeding before the Court as the Court considers necessary and may, when directing an account to be taken, or subsequently, give special directions as to the manner in which the account is to be taken or vouched.(3)If in a proceeding before the Federal Court under this Act a question of fact arises that a party desires to have tried before a jury, the Federal Court may, if it thinks fit, direct the trial of that question to be had before a jury, and the trial may be had accordingly in the same manner as if it were the trial of an issue of fact in an action.(5)Where:(a)a bankrupt, a debtor or any other person has failed to comply with an order or direction of a Registrar, or with a direction or requirement of an Official Receiver or trustee, under this Act; or(b)a trustee has failed to comply with an order, direction or requirement of a Registrar, or with a requirement or request of the Inspector‑General, under this Act; the Court may, on the application of the Registrar, Official Receiver, trustee or Inspector‑General, as the case requires: (c)order the person who has failed to comply with the order, direction, requirement or request, as the case may be, to comply with it; or(d)if it thinks fit, make an immediate order for the committal to prison of that person.(6)The power conferred on the Court by subsection (5) is in addition to, and not in substitution for, any other right or remedy in respect of the failure to comply with the order, direction, requirement or request, as the case may be.THE EVIDENCE