Emile Brunoro(Appellant) v Selmar Nebelung (First Respondent)

• Jurisdiction: Australian Capital Territory
• Court: Court of Appeal of ACT
• Judge: Murrell CJ,Burns,Collier JJ
• Judgment Date: 26 May 2017
• Docket Number: File Numbers: ACTCA 39 of 2016
• Date: 26 May 2017

[2017] ACTCA 26

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

Before:

Murrell CJ, Burns and Collier JJ

File Numbers: ACTCA 39 of 2016

Emile Brunoro

(Appellant)

and

Selmar Nebelung

(First Respondent)

Justin Nebelung

(Second Respondent)

Adam Nebelung

(Third Respondent)

Representation:

Counsel

Mr T Crispin (Appellant)

Mr A Muller (Respondents)

Cases Cited:

Brunoro v Brunoro [2012] ACTSC 2

Brunoro v Brunoro (No 2) [2013] ACTSC 153

Briginshaw v Briginshaw (1938) 60 CLR 336 (1938) 60 CLR 336

Caboche v Ramsay (1993) 119 ALR 215 (1993) 119 ALR 215

Dunstam v Higham [2016] ACTCA 20

Glover v Roche [2003] ACTSC 19

Greer v Kettle [1938] AC 156 [1938] AC 156

Hopps v Domin8 Holdings Pty Limited [2012] ACTSC 165

Nicholls v Elgas Ltd [2012] ACTSC 128

Precision Plastics Pty Ltd v Demir(1975) 132 CLR 362 (1975) 132 CLR 362,

RailPro Services Pty Ltd v Flavel [2015] FCA 504; 242 FCR 424

Rinehart v Rinehart (No 3) [2016] FCA 539; 337 ALR 174

Ryan v Vizovitis [2017] ACTCA 3

Scuderi v Raskurasingham [2017] ACTSC 41

Schwartz v Hadid [2013] NSWCA 89

Selmes v Australian Capital Territory [2000] ACTSC 32

Sutherland Shire Council v Major [2015] NSWCA 243

The Legal Practitioner v Council of the Law Society of the ACT [2015] ACTCA 20

Tsueneaki v Stewart [2013] ACTCA 34

Volanne Pty Ltd v International Consulting and Business Management (ICBM) Pty Ltd [2016] ACTCA 49

Warner v Hung, in the matter of Bellpac Pty Limited (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123; 297 ALR 56 at [48].

Warren v Coombes [1979] HCA 9 [1979] HCA 9; 142 CLR 531

Yogini v Eveille & Heritage [2006] ACTSC 13

Legislation Cited:

Court Procedures Act 2004 (ACT) s 5A

Court Procedures Rules 2006 (ACT) r 1619

Family Provision Act 1969 (ACT)

Supreme Court Act 1933 (ACT) ss 37E, 37N

APPEAL — GENERAL PRINCIPLES — Assessment of damages — Assault — Effect of alcoholism on general damages — Reduction of interest on damages for delay — Whether award of damages manifestly inadequate — Whether consideration of aggravated damages and exemplary damages conflated — Whether failure to award exemplary damages

APPEAL — Claim under Family Provision Act 1969 (ACT) — Whether error in failing to find equitable interest in property — Whether provision should be made under Family Provision Act — Estoppel by deed — No unambiguous statement as to nature of interest — Whether privy to deed

Decision:

Appeal dismissed.

THE COURT:

Introduction

1 The appellant is the son of Virgil Brunoro and Berthe Brunoro (the deceased). Over the years, the deceased, the appellant and other family members lived at adjacent properties, 3 and 5 Phillip Avenue, Watson.

2 The deceased died in January 2006. After the death of the deceased, the relationship between the appellant and other family members deteriorated.

3 In 2008, the appellant commenced proceedings against Virgil (as administrator of the deceased's estate) and three of the five children of the appellant's sister, being his nephews Selmar, Justin and Adam Nebelung, as well as Nebelung Nominees Pty Ltd. Selmar, Justin and Adam were the defendants in proceedings before Mossop AsJ (the trial judge) and they are the respondents to this appeal

4 The appellant's claims against the nephews included assertions of assault by Justin on 2 August 2007 (the first assault) and assault by Selmar and Adam on 20 May 2008 (the second assault). Further, the appellant made a claim against the deceased's estate under the Family Provision Act 1969 (ACT) ( FPA). In the FPA claim, the appellant said that the estate included an equitable interest in 3 Phillip Avenue, from which provision could be made. The appellant also asserted that he had an equitable interest in, or charge over, 5 Phillip Avenue.

5 Each nephew counterclaimed. Ultimately, the counterclaims were not pressed and were dismissed.

6 The part of the proceedings that concerned the appellant's claim in relation to 5 Phillip Avenue was heard separately and dismissed in 2012: Brunoro v Brunoro [2012] ACTSC 2.

7 At that stage, Virgil (as the administrator of the deceased's estate) ceased to be a party to the remaining proceedings. However, the parties agreed that the appellant's FPA claim could continue as part of the remaining proceedings, at least to the extent to which the beneficiaries of the deceased's estate (the nephews) were defendants in the proceedings: see [32] of the decision of the trial judge.

8 In relation to the second assault, the trial judge found in favour of the appellant and entered judgment in the sum of $59,500, including $40,000 for general damages. His Honour made no award for aggravated or exemplary damages. Otherwise, his Honour dismissed the appellant's claims, including the FPA claim.

The appeal

9 The appellant appealed against the dismissal of the first assault claim, the dismissal of the FPA claim, and the adequacy of the award of damages for the second assault.

10 As to the dismissal of the first assault claim, the appellant submitted that the trial judge erred in failing to take into account the evidence of injuries given by his former partner, Ms Harney and the fact that her evidence was inconsistent with Justin's evidence about how the assault occurred.

11 In relation to the damages awarded for the second assault, the appellant contended that the trial judge erred by:

• (a) Reducing the amount of general damages because of the appellant's alcohol consumption in circumstances where there was inadequate evidence that alcohol consumption impacted relevantly on his quality of life.

• (b) Making an award of general damages that was manifestly inadequate.

• (c) Reducing interest on damages because of delay which the trial judge wrongly attributed to the appellant.

• (d) Conflating the consideration of aggravated damages and exemplary damages.

• (e) Failing to award exemplary damages.

12 In relation to the FPA claim, the appellant said that the trial judge erred by:

• (a) Failing to find that the deceased had an equitable interest in 3 Phillip Avenue which was available for distribution pursuant to the FPA.

• (b) Taking the appellant's alcohol consumption into account when determining the provision to be made under the FPA when there was insufficient evidence as to the impact of alcohol consumption on his health.

• (c) Failing to make an adequate order for provision when the appellant's age and ill health made his need for provision compelling.

Nature of appeal

13 The appeal is under s 37E of the Supreme Court Act 1933 (ACT) ( SCA). It is by way of a rehearing in which the Court of Appeal must have regard to the evidence given in the proceeding below: SCA s 37N.

14 The circumstances in which an appellate court may set aside the factual findings of a trial court were summarised by Perry J in RailPro Services Pty Ltd v Flavel [2015] FCA 504; 242 FCR 424 at [78] as follows:

(a) A fundamental distinction is drawn between the approach of an appellate court in two different classes of cases — the drawing of inferences from admitted facts or facts found by the trial judge, on the one hand, and findings which depend upon the view taken of conflicting oral testimony, on the other hand (Fox v Percy [2003] HCA 22 [2003] HCA 22; (2003) 214 CLR 118 (Fox v Percy) at 146 [88] (McHugh J); Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842(1985) 59 ALJR 842 at 844 (the Court); State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3 [1999] HCA 3; (1999) 73 ALJR 306 (SRA v Earthline) at [93] (Kirby J)). … The assessment of a witness' state of mind has also been said to fall within the second category of cases: Bendigo at 544 [141] (Heydon J) (citing with approval Nocton v Lord Asburton [1914] AC 932 [1914] AC 932 at 957 (Viscount Haldane LC)).

(b) With respect to cases falling within the first class, the principle is that expressed by Gibbs ACJ, Jacobs and Murphy JJ in Warren v Coombes (1979) 142 CLR 531(1979) 142 CLR 531 (Warren v Coombes) at 551, namely:

…the established principles are, we think, that in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it.

In so holding, the High Court rejected the approach of judicial restraint adopted in some of the authorities which required that error be demonstrated in the decision of the primary judge before the appellate court would reverse findings of fact or inferences from fact provided that both inferences were open: see further the detailed and helpful analysis of the authorities by Dodds-Streeton JA in Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267; (2007) 17 VR 592 (Kelso) at [65]–[95] (with whose reasons the remainder of the Court agreed).

…

(d) It may also be the case that appealable error exists by reason of a failure at first instance to determine the case upon a proper consideration of the real strength of the body of evidence presented by the losing party and the basis upon which the evidence of a witness was found unreliable is too fragile or slight: SRA v Earthline at [63]–[64] (Gaudron, Gummow and Hayne JJ), [93]–[94] (Kirby J) and [148]–[155] (Callinan J); cf eg Hasler v Singtel Optus Pty Ltd [2014] NSWCA 266; (2014) 311 ALR 494 (Hasler) at 525 [157] (Leeming J (with whose reasons the remainder of the Court...