Talacko v Talacko [2010] FCA 193

Talacko v Talacko [2010] FCA 193

The applicants established that orders restraining dealings with the listed properties and directing a registered trustee to take control of the respondent's property were necessary in the interests of creditors under s 50 of the Bankruptcy Act 1966 (Cth). However, travel restraints under s 30 should not be imposed because restrictions on freedom of movement require caution and the appropriate course was for the respondent's passports to be held by his solicitor under undertaking rather than by orders preventing travel.

Jurisdiction
Australia
Judgment Date
05 March 2010
Procedural Posture
Application Pursuant to Ss 30 and 50 of the Bankruptcy Act 1966 (cth) / Urgent Interlocutory Application Before Sequestration After Bankruptcy Notices Were Issued
Outcome
Application granted in part; property control and dealing restraint orders made, travel restraint orders not made, passports held under undertaking, and further hearing adjourned.
Legal Topics
["taking Control of Debtor's Property Before Sequestration" 'restraint on Dealing With Property' 'travel Restraint and Passports' 'admissibility of Tendency, Hearsay and Judgment Evidence on Interlocutory Application']
['bankruptcy' 'practice and Procedure' 'evidence'] ["taking Control of Debtor's Property Before Sequestration" 'restraint on Dealing With Property' 'travel Restraint and Passports' 'admissibility of Tendency, Hearsay and Judgment Evidence on Interlocutory Application']

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Procedural Posture

Application Pursuant to Ss 30 and 50 of the Bankruptcy Act 1966 (cth) / Urgent Interlocutory Application Before Sequestration After Bankruptcy Notices Were Issued

Legal Issues

  1. 1 ["Whether a registered trustee should be directed under s 50 of the Bankruptcy Act 1966 (Cth) to take control of the respondent's property before sequestration." 'Whether the respondent should be restrained from selling, transferring, donating or otherwise dealing with properties listed in Attachment A.' 'Whether the respondent should be restrained from leaving Victoria, attending any point of international departure, or applying for another passport.' 'Whether the Rapke affidavits and exhibited materials were admissible despite objections based on ss 91(1), 97(1)(a) and 135 of the Evidence Act 1995 (Cth).']

Ratio Decidendi

The applicants established that orders restraining dealings with the listed properties and directing a registered trustee to take control of the respondent's property were necessary in the interests of creditors under s 50 of the Bankruptcy Act 1966 (Cth). However, travel restraints under s 30 should not be imposed because restrictions on freedom of movement require caution and the appropriate course was for the respondent's passports to be held by his solicitor under undertaking rather than by orders preventing travel.

Court Disposition

Application granted in part; property control and dealing restraint orders made, travel restraint orders not made, passports held under undertaking, and further hearing adjourned.

Orders

  • ['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".' "The Court...