| 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…
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- AGLC
- Talacko v Talacko (No 2) [2015] VSC 496
- Case
- [2015] VSC 496
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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