Talacko v Talacko (No 2) - [2015] VSC 496

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2009 7819

JAN TALACKO (As executor of the Estate of Helena Marie Talacko) AND ORS (According to the schedule attached)	Plaintiffs
v
JAN EMIL TALACKO AND ORS (According to the schedule attached)	Defendants

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JUDGE:	McDONALD J
WHERE HELD:	Melbourne
DATES OF HEARING:	2, 3, 5, 6, 9, 10, 11, 12, 13, 25, 26, 27 March 2015
DATE OF JUDGMENT:	22 September 2015
CASE MAY BE CITED AS:	Talacko v Talacko (No 2)
MEDIUM NEUTRAL CITATION:	[2015] VSC 496

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COSTS — Whether first plaintiff suing as administrator of his mother’s estate should be treated differently than second to fifth plaintiffs suing in personal capacity — Award of 20% of costs to reflect partial success of plaintiffs’ causes of action against defendants — First and fourth defendants denied costs by reason of misconduct in respect of the transaction in proceedings.

INDEMNITY COSTS—Whether special circumstances existed justifying costs orders in favour of fifth and sixth defendants on indemnity basis.

Supreme Court Act 1986 (Vic) s 24(1); Evidence (Miscellaneous Provisions) Act 1958 (Vic) s 42E; Administration and Probate Act 1958 (Vic) s 9; Foreign Judgments Act 1991 (Cth) s 15; Civil Procedure Act 2010 (Vic) s 7(1), s 9(1)(a),(c),(d) and (f); Supreme Court (General Civil Procedure) Rules 2005 (Vic) r 63.22; Property Law Act 1958 (Vic) s 172.

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APPEARANCES:	Counsel	Solicitors
For the First Plaintiff	In person
For the Second to Fifth Plaintiffs	Mr S Howells with Dr M Sharpe	Tolhurst, Druce & Emmerson
For the First, Second and Third Defendants	No appearance
For the Fourth Defendant	Mr L Glick QC with Mr J Masters	Strongman & Crouch
For the Fifth and Sixth Defendants	Mr P Crutchfield QC with Ms F Bentley	SBA Lawyers
For the Seventh Defendant	No appearance

HIS HONOUR:

On 7 August 2015, the court delivered judgment (‘the principal judgment’) following a trial which ran for 12 days in March 2015. The history of this proceeding is set out in some detail in the principal judgment and does not need repeating. For present purposes it is sufficient to observe that the proceeding dates back to July 2009. In the intervening years there has been a raft of interlocutory proceedings. At the conclusion of a number of these proceedings, costs were reserved.

In addition to making costs orders arising out of the trial, the court must determine what final orders should be made in respect of the costs which have hitherto been reserved. In approaching this latter task, I have placed particular weight upon the overarching purpose prescribed in s 7(1) of the Civil Procedure Act 2010 (Vic) (‘the Act’) and the Supreme Court (General Civil Procedure) Rules 2005 (Vic) (‘the Rules’) of Court to facilitate the just, efficient, timely and cost effective resolution of the real issues in dispute. I have also had regard to the objects, couched in mandatory terms, in s 9(1)(a),(c),(d) and (f) of the Act. As to the Rules…

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 (No 2)

Details

AGLC: Talacko v Talacko (No 2) [2015] VSC 496
Case: [2015] VSC 496
Decision Date: 22 September 2015

CaseChat Overview and Summary

The case of Talacko v Talacko (No 2) involved multiple plaintiffs suing various defendants over a series of transactions, including the transfer of properties. The plaintiffs sought relief related to the validity and fairness of these transactions. The Supreme Court of Victoria was tasked with resolving the legal issues arising from this complex litigation. The primary legal questions centred on whether the first plaintiff, suing as the administrator of his mother’s estate, should be treated differently from the second to fifth plaintiffs who were suing in their personal capacities. Additionally, the court needed to determine the appropriate costs order for the plaintiffs' partial success and whether special circumstances justified an indemnity costs order for certain defendants.

The court considered the distinctions between the plaintiffs’ roles in the litigation and concluded that the first plaintiff, as an administrator, should not be treated differently from the others. Regarding costs, the court awarded 20% of the costs to the plaintiffs, acknowledging their partial success. The court also found that the first and fourth defendants were denied costs due to misconduct in relation to the transaction in question. In terms of indemnity costs, the court examined the circumstances and found that no special circumstances existed to warrant an indemnity costs order in favour of the fifth and sixth defendants.

As a result of the court’s decision, the plaintiffs were awarded 20% of the costs, with the first and fourth defendants being denied costs due to their misconduct. The fifth and sixth defendants were also not granted indemnity costs. The court did not make an indemnity costs order for the fifth and sixth defendants due to the absence of special circumstances.

Orders