SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: / Brunoro v Brunoro (No 3)Citation: / [2016] ACTSC 189
Hearing Dates: / 25-28 May, 17-18 August 2015
Decision Date: / 29 July 2016
Before: / Mossop AsJ
Decision: / See [262]
Catchwords: / TORTS – Claim of assault – Altercation involving a banana cutter – Where plaintiff and third defendant provided inconsistent versions of events –Evidence supported third defendant’s version of events – Claim for damages refused – No issue of principle
TORTS – Claim of assault – Where plaintiff suffered fractured humerus – Second defendant claimed to have acted in self-defence – Whether actions were reasonable actions of self-defence – Burden of proof – Balance of evidence insufficient for second defendant to satisfy onus of proof – Plaintiff awarded damages
TORTS – Detinue – No evidence of the demand for return of the chattels – Plaintiff permitted to collect any items that he wanted – No evidence that the defendants had actual possession – Claim dismissed
TORTS – Trespass – Removal of electrical fuses from property – Where plaintiff had no equitable interest in the property – Plaintiff was not a tenant and only had possession of a small part of the property – Second defendant acting as agent of the owner – Claim dismissed
FAMILY PROVISION AND MAINTENANCE – Claim under the Family Provision Act 1969 (ACT) – Whether adequate provision for the proper maintenance, education or advancement in life of the plaintiff made under the will – Age not a barrier to obtaining an order for provision – Claim made against a modest state – Plaintiff obtained substantial benefits under the will and throughout his life from his parents – Other beneficiaries considerably younger than the plaintiff – Claim dismissed
Legislation Cited: / Family Provision Act 1969 (ACT), ss 8, 11
Cases Cited: / Anning v Anning (1907) 4 CLR 1049
Briginshaw v Briginshaw (1938) 60 CLR 336
Brunker v Perpetual Trustee Co (Ltd) (1937) 57 CLR 555
Brunoro v Brunoro [2012] ACTSC 2
Brunoro v Brunoro (No 2) [2013] ACTSC 153
Cook v Beal (1697) 1 Lord Raym 176; 91 ER 1014
Dale v Wood (1822) 7 Moore CP 33
Fontin v Katapodis (1962) 108 CLR 177
Glover v Roche [2003] ACTSC 19
Lamb v Cotogno (1987) 164 CLR 1
McClelland v Symons [1951] VLR 157
Newington v Windeyer (1985) 3 NSWLR 555
Pearce v Hallett [1969] SASR 423
Singer v Berghouse (1994) 181 CLR 201
Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118
Whitfeld v de Lauret & Co Ltd (1920) 29 CLR 71
Texts Cited: / Patrick Higgins, Elements of Torts in Australia (Butterworths,1970)
Thomson Reuters, The Laws of Australia, vol 33
Parties: / Emile Brunoro (Plaintiff)
Virgil Brunoro (First Defendant)
Selmar Nebelung (Second Defendant)
Justin Nebelung (Third Defendant)
Adam Nebelung (Fourth Defendant)
Representation: / Counsel:
T Crispin (Plaintiff)
A Muller (Defendants)
Solicitors:
S&T Lawyers (Plaintiff)
Maliganis Edwards Johnson (Defendants)
File Number: / SC 548 of 2008
MOSSOP AsJ
Introduction
1. Unhappily, this case involves at least nine causes of action alleged by the parties against each other. The parties are members of a single extended family. The causes of action arise out of unusual circumstances involving two houses in the Canberra suburb of Watson. The case has been on foot for in excess of eight years. The final hearing in the case ran for six days. An earlier final hearing on a separate issue ran for two days. Notwithstanding the family relationships between the parties, the inevitable risks of litigation and the Court’s encouragement to do so, the parties have been unable to reach any settlement.
The people
2. This case relates to the Brunoro family. The plaintiff, Emile Brunoro, is the son of Virgil and Berthe Brunoro. Virgil is the first defendant in these proceedings. Berthe died in 2006. The proceedings arise out of events that occurred following her death.
3. The plaintiff has a brother called Henri Brunoro. Henri Brunoro has been married twice, first to Pamela Brunoro and then to Penelope Gregory.
4. The plaintiff’s sister Aline died in about 1996. She had five children Selmar Nebelung, Justin Nebelung, Adam Nebelung, Seline Nebelung and Samantha Nebelung.
5. The plaintiff has not been married.
6. I will refer to the members of the Brunoro and Nebelung families by their first names. I do so for convenience and without intending any disrespect to them.
The properties
7. Two properties feature prominently in this case. They are residential properties located on Phillip Avenue in Watson. They are located at 3 and 5 Phillip Avenue. These houses are near the intersection between Phillip Avenue and Northbourne Avenue. Number 3 is the closest to Northbourne Avenue. At the relevant times it had a single story dwelling on it. Number 5 is the house next door. At the relevant times it had a two-storey residential dwelling on it.
8. A third property was referred to in the evidence, namely, a farm at Murrumbateman where Virgil and Berthe Brunoro lived from 1979.
The pleaded claims
Plaintiff’s claims
9. The plaintiff has pleaded five different causes of action. They are:
(a) A claim of trespass against Selmar alleging a trespass on 5 Phillip Avenue Watson on 10 September 2007. Selmar is said to have trespassed by removing chattels, namely, electrical fuses from 5 Phillip Avenue Watson and, on a separate occasion, turning off the mains water tap and filling the access hole with rocks.
(b) A claim of assault (the first assault) against Justin on 2 August 2007, when Justin is alleged to have held a plaintiff in a bear hug, forced him to the ground and “stomped” “around 12 times” on his right leg, torso, right arm, neck and head. The plaintiff is alleged to have suffered a broken rib, bruising, abrasions and psychiatric injury.
(c) A claim of assault (the second assault) against Selmar and Adam alleged to have occurred on 20 May 2008. Selmar and Adam are alleged to have seized the plaintiff and manhandled him to the ground, kicked him repeatedly whilst he was on the ground and dragged him around 20 m in the direction of 3 Phillip Avenue. Selmar is then alleged to have pinned the plaintiff’s left arm behind his back and spat at him. The plaintiff is alleged to have suffered a fractured rib and a fracture of the right humerus below the shoulder, abrasions and bruising including extensive bruising to his genitals and psychiatric injury. The fracture of the humerus is alleged to have resulted in a permanent loss of mobility and strength in the right shoulder and upper arm.
(d) A claim in detinue against each of the defendants alleged to have arisen from the plaintiff’s removal from 5 Phillip Avenue as a result of a domestic violence order on 28 January 2008. It is alleged that the plaintiff returned to the premises on a number of occasions in order to retrieve his belongings, but they had been “appropriated or removed without his knowledge or consent”. Particulars of the property are set out in the pleading.
(e) A claim under the Family Provision Act 1969 (ACT) seeking provision in the form of “50% of the equitable interest in the property at 3 Phillip Avenue, Watson.”
10. Aggravated and exemplary damages are claimed in relation to the first assault and the second assault.
First defendant’s defence and counterclaim
11. Virgil’s amended defence and counterclaim plead, in answer to the whole of the claim, judgments entered in his favour by Harper M on 31 January 2012 and 24 February 2012. It also includes a counterclaim for assault, particularising five incidents alleged to have occurred from May 2007.
Second defendant’s defence and counterclaim
12. The amended defence and counterclaim filed by Selmar alleges a breach of the plaintiff’s duty as executor of the will of his mother Berthe. It is alleged that he breached his fiduciary obligations to Selmar, Justin and Adam by:
(a) failing to make an application for probate;
(b) failing to account to Justin, Selmar and Adam for rent and other moneys payable in respect of 3 Phillip Avenue, Watson; and
(c) withdrawing approximately $28,193.24 on 20 January 2006, but failing to account to Selmar, Justin and Adam or other beneficiaries in respect of this withdrawal.
13. Finally, it is alleged that the plaintiff assaulted Selmar by throwing a rock at him on an unspecified date “causing him fear and apprehension”.
Third defendant’s defence and counterclaim
14. The amended defence and counterclaim filed by Justin includes a counterclaim making the same allegations about the plaintiff’s conduct as executor of his mother’s will. It also includes an allegation that the plaintiff assaulted him on 2 August 2007. The content of that allegation is made clear by the assertion at [16] of the defence that Justin “was attacked by the plaintiff with a machete and any contact with the Plaintiff was in self-defence”.
Fourth defendant’s defence and counterclaim
15. The amended defence and counterclaim filed by Adam repeats the allegations concerning the plaintiff’s conduct as executor and also includes a claim of assault against the plaintiff alleging that he hit the him with an open hand “in about June 2007”.
Defects in, and abandonment of, the counterclaims
16. Each of the counterclaims filed by the defendants was technically defective in that it failed to articulate the relief which was sought. However, no point was taken by the plaintiff about that. In any event in final submissions counsel for the defendant said that he made no submissions and the solicitor for the defendants subsequently confirmed to the Court that the counterclaims were not pressed.
17. In those circumstances I treated the counter claims made by each defendant as no longer being pressed and I will enter judgment in favour of the plaintiff on each of the counter claims.
Procedural history
18. The proceedings were commenced by originating application filed 11 July 2008. At that stage the originating application sought an extension of a caveat filed by the plaintiff over Virgil’s property at 5 Phillip Avenue.
19. As a result of orders made on 26 September 2008 an amended originating application was filed on that date which added four additional defendants: Selmar, Justin, Adam and Nebelung Nominees Pty Ltd. At that stage the amended originating application sought a declaration that the plaintiff held a life interest in 5 Phillip Avenue and an injunction restraining the defendants from inhibiting the plaintiff from entering or residing at the property. It also sought damages, aggravated damages and exemplary damages.
20. On 28 November 2008 Harper M ordered that the caveat lodged by the plaintiff over the property be removed.
21. On 30 November 2009 (one year later), default judgment was entered against each of the defendants. On 22 February 2010 that default judgment was set aside by consent.
22. On 15 September 2010 an amended statement of claim was filed which sought a declaration “that the plaintiff holds an equitable right to inhabit the property at 5 Phillip Avenue, Watson”, an order requiring the return of certain chattels of the plaintiff and provision under the Family Provision Act 1969 “in the form of a 50% share of the equitable interest in the property at 3 Phillip Avenue Watson.”
23. The amended statement of claim did not identify Nebelung Nominees Pty Ltd as a party. No order was made removing it as a party or giving judgment in its favour. Rather, it seems to have been simply forgotten about. The parties have proceeded as if notwithstanding its inclusion in the amended originating claim, dated 26 September 2008, the filing of the amended statement of claim removed it as a party.
24. On 17 December 2010, Harper M ordered that the plaintiff’s claim in respect of 5 Phillip Avenue, Watson “be dealt with as a separate issue”. As the subsequent history of the case illustrates, any perceived efficiency in dealing with only part of the issues in dispute between the parties was illusory.
25. The hearing of the separate issue took place on 28 April 2011 and 9 May 2011. His Honour delivered his decision on 31 January 2012: Brunoro v Brunoro [2012] ACTSC 2. His Honour made a declaration that “[t]he plaintiff holds no equitable interest in or charge over the premises at 5 Phillip Avenue, Downer”. Notwithstanding the reference to Downer, the reasons make it clear that his Honour was dealing with the house at 5 Phillip Avenue, Watson. The allegation at that stage was that there had been an agreement entered into in about 1979 by which the plaintiff would:
(a) maintain the property at 5 Phillip Avenue;
(b) arrange for parts of the house to be leased to tenants; and
(c) collect rent and account after paying for maintenance, repairs and other expenses to his parents.
In return for the above, he would be permitted to reside at 5 Phillip Avenue.
26. Harper M was not satisfied that there was anything in the nature of a contract which came into existence, not being satisfied that a promise was made to the plaintiff that the arrangement for him to live in the house and let out rooms was to continue indefinitely or for any particular period of time: [2012] ACTSC 2 at [33]. His Honour found that what had happened was in the nature of an informal arrangement between family members and that none had any intention to create enforceable legal rights or obligations: [2012] ACTSC 2 at [33]. Further, his Honour found that, in relation to any representation that had been made to the plaintiff, he had not suffered any detriment because he had been able to live rent free in the family home for a further 25 years or so after his parents moved out.