Talacko v Bennett [2017] HCA 15

HIGH COURT OF AUSTRALIA

KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ

JUDITH GAIL TALACKO (AS APPOINTED REPRESENTATIVE OF THE ESTATE OF JAN EMIL TALACKO) APPELLANT

AND

ALEXANDRA BENNETT & ORS RESPONDENTS

Talacko v Bennett [2017] HCA 15 3 May 2017 M154/2016

ORDER

1. Appeal allowed.

2. Set aside orders 2 to 6 of the Court of Appeal of the Supreme Court of Victoria made in proceeding S APCI 2016 0024 on 28 July 2016 and, in their place, order that:

(a) the appeal to the Court of Appeal of the Supreme Court of Victoria be dismissed; and

(b) the applicants pay the first respondent's costs in proceeding S APCI 2016 0024.

3. The first to third respondents pay the appellant's costs of the appeal to this Court.

On appeal from the Supreme Court of Victoria

Representation

B W Walker SC with J B Masters for the appellant (instructed by Strongman & Crouch)

P H Solomon QC with O M Ciolek for the first to third respondents (instructed by Brand Partners)

Submitting appearance for the fourth respondent

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Talacko v Bennett

Procedure – Enforcement of Australian judgment debt in foreign jurisdiction – Where respondents obtained certificate under s 15(1) of Foreign Judgments Act 1991 (Cth) certifying finality of Australian judgment – Where application for such certificate may not be made until expiration of any stay of enforcement of judgment in question – Where judgment debtor bankrupt – Whether certificate valid – Whether s 58(3) of Bankruptcy Act 1966 (Cth) operated to impose a stay of enforcement for purposes of Foreign Judgments Act 1991 (Cth).

Words and phrases – "enforcement by execution", "stay of enforcement of the judgment".

Bankruptcy Act 1966 (Cth), ss 58(3), 60(1)(b), 60(2). Foreign Judgments Act 1991 (Cth), ss 3(1), 15.