Brunoro v Nebelung

Case [2017] ACTCA 26


SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

Brunoro v Nebelung

Citation:

[2017] ACTCA 26

Hearing Date:

2 May 2017

DecisionDate:

26 May 2017

Before:

Murrell CJ, Burns and Collier JJ

Decision:

Appeal dismissed.

Catchwords:

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

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

Cases Cited:

Brunoro v Brunoro [2012] ACTSC 2

Brunoro v Brunoro (No 2) [2013] ACTSC 153
Briginshaw v Briginshaw (1938) 60 CLR 336
Caboche v Ramsay (1993) 119 ALR 215
Dunstam v Higham [2016] ACTCA 20
Glover v Roche [2003] ACTSC 19
Greer v Kettle [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,
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; 142 CLR 531

Yogini v Eveille & Heritage [2006] ACTSC 13

Parties:

Emile Brunoro (Appellant)

Selmar Nebelung (First Respondent)

Justin Nebelung (Second Respondent)

Adam Nebelung (Third Respondent)

Representation:

Counsel

Mr T Crispin (Appellant)

Mr A Muller (Respondents)

Solicitors

Concorde Legal (Appellant)

Maliganis Edwards Johnson (Respondents)

File Numbers:

ACTCA 39 of 2016

Decision under appeal: 

Court:  Supreme Court of the ACT

Before:  Mossop AsJ

Date of Decision:         29 July 2016

Case Title:  Brunoro v Brunoro (No 3)

Citation: [2016] ACTSC 189

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. 

  1. The deceased died in January 2006.  After the death of the deceased,…

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AGLC
Brunoro v Nebelung [2017] ACTCA 26
Case
[2017] ACTCA 26
Decision Date

CaseChat Overview and Summary

The appeal concerned a dispute between Brunoro and Nebelung. The precise nature of the dispute is not fully detailed in the provided text, but it involved claims for assault, assessment of damages, and a claim under the *Family Provision Act 1969* (ACT). The matter was heard by Murrell CJ, Burns and Collier JJ.

The court was required to determine several legal issues. These included whether the award of general damages for assault was manifestly inadequate, whether the court below had conflated the consideration of aggravated and exemplary damages, and whether there was an error in failing to award exemplary damages. Additionally, the court had to consider whether an equitable interest in property should have been found, whether provision should have been made under the *Family Provision Act 1969* (ACT), and whether estoppel by deed applied, particularly in relation to an unambiguous statement as to the nature of an interest and whether a party was privy to a deed. The court also considered the effect of alcoholism on general damages and the reduction of interest on damages for delay.

The judgment indicates that the appeal was dismissed. While the detailed reasoning for each specific issue is not provided, the outcome suggests that the court found no reversible error in the decisions made by the court below concerning the assessment of damages for assault, the application of the *Family Provision Act 1969* (ACT), or the equitable and estoppel-related claims. The court's decision implies that the awards of damages were considered appropriate, the conflation of aggravated and exemplary damages was not established as an error, and the claims under the *Family Provision Act 1969* (ACT) and related equitable and estoppel arguments were not made out to the required standard.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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