Talacko v Talacko (No 3)
[2011] FCA 1343
•7 November 2011
FEDERAL COURT OF AUSTRALIA
Talacko v Talacko (No 3) [2011] FCA 1343
Citation: Talacko v Talacko (No 3) [2011] FCA 1343 Parties: HELENA MARIA TALACKO, ALEXANDRA ANN BENNETT, MARTIN THORBURN 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: 7 November 2011 Legislation: Bankruptcy Act 1966 (Cth) Date of hearing: 7 November 2011 Place: Melbourne Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 7 Counsel for the Applicant: Mr P Fary Solicitor for the Applicant: Holding Redlich Solicitor for the Respondent: Mr M Witt of Findlay Arthur Phillips Counsel for the Official Trustee in Bankruptcy: Ms C Gobbo Solicitor for the Official Trustee in Bankruptcy: Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 201 of 2010
BETWEEN: HELENA MARIA TALACKO, ALEXANDRA ANN BENNETT, MARTIN THORBURN JAN TALACKO, ROWENA KIRSTEN EVE TALACKO AND MARGARET HELEN BEATRICE TALACKO
ApplicantsAND: JAN EMIL TALACKO
Respondent
JUDGE:
NORTH J
DATE OF ORDER:
14 NOVEMBER 2011
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The orders made on 7 November 2011 which do not reflect the intention of the Court be vacated and replaced with the following orders.
2.The control of the property of the respondent by the Official Trustee in Bankruptcy end forthwith.
3.Michael Witt deliver all passports of the respondent to the respondent’s trustee in bankruptcy, Brian Silvia, by forwarding them by pre-paid registered mail to the following address as soon as is reasonably practicable
Mr. Brian Silvia
BRI Ferrier
GPO Box 7079
Sydney NSW 2001
4.Upon the delivery up of all passports of the respondent in accordance with para 3, Michael Witt be released from his undertaking given to the Court on 28 March 2011.
5.Order 1 made on 30 August 2010, continue until 7 May 2012.
6.The applicants pay the reasonable costs and expenses of the Official Trustee in Bankruptcy of and incidental to its control of the property of the respondent (including the notice of motion filed by the Official Trustee on 27 June 2011).
7.The Official Trustee in Bankruptcy prepare a further bill of costs in taxable form in respect of the costs and expenses claimed under para 6.
8.Within 14 days after receipt of the further bill of costs in accordance with para 7, the applicants file and serve on the Official Trustee in Bankruptcy any objections to both the bill of costs dated 11 August 2011 and the further bill of costs.
9.The costs and expenses of the Official Trustee in Bankruptcy be taxed by a Registrar, if not agreed between the applicants and the Official Trustee in Bankruptcy.
10.Upon the completion of the taxation, the Official Trustee in Bankruptcy be permitted to pay itself from the moneys held in trust pursuant to the orders made on 15 July 2011 and 28 July 2011, but limited to the amount of costs and expenses as taxed.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 201 of 2010
BETWEEN: HELENA MARIA TALACKO, ALEXANDRA ANN BENNETT, MARTIN THORBURN JAN TALACKO, ROWENA KIRSTEN EVE TALACKO AND MARGARET HELEN BEATRICE TALACKO
ApplicantsAND: JAN EMIL TALACKO
Respondent
JUDGE:
NORTH J
DATE:
7 NOVEMBER 2011
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
On 30 August 2010, this Court ordered that:
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”, save for the purpose of satisfying the orders made against him in Supreme Court of Victoria Proceeding No. 7393 of 1998.
This order was part of a set of orders which vested the respondent’s property in the Official Trustee in Bankruptcy on an interim basis pending the hearing and determination of an appeal against the judgment upon which the applicants had issued a bankruptcy notice. The estate of the respondent has now been vested in a registered trustee in bankruptcy (the trustee), as a result of a sequestration order made against his estate today. The question arises whether the injunction should be continued.
Mr Fary, who appeared as counsel for the applicant, contended that the injunction should be continued.
The injunction was originally granted against a background of actions and conduct by the respondent which demonstrated the likelihood that he would seek to deal with the property to the detriment of the applicants.
Mr Witt, who appeared on behalf of the respondent, contended that the injunction should no longer remain in place. He contended that the provisions of the Bankruptcy Act 1966 (Cth) were now sufficient to ensure the safety of the property of the estate.
In my view, it is desirable that the entire control of the estate of the respondent be placed in the hands of the trustee. The existence of the injunction outside the statutory scheme would be a complication for the trustee. If he determines that a restraint in such terms is necessary, it is open for him to apply under the Act for the necessary orders.
However, the nature of the estate is complicated as it consists largely of properties in the Czech Republic which are subject to the complex laws of that country. Consequently, the trustee should be given sufficient time to come to terms with the nature of the estate before determining whether to seek any particular orders against the respondent. In those circumstances, the injunction will remain in place for six months. Thereafter, the trustee will be able to make a new and separate application for orders in similar terms if he is so advised.
I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North. Associate:
Dated: 25 November 2011
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