Brunoro v Brunoro (No 3)

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

DecisionDate:

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…