Emile Brunoro v Virgil Brunoro (No 2)

[2013] ACTSC 153

EMILE BRUNORO v VIRGIL BRUNORO & ORS (No 2)
[2013] ACTSC 153 (26 July 2013)

EQUITY – application for Interlocutory Injunction – applicant claims entitlement to property under Family Provision Act (ACT) from equitable interest claimed in will of deceased – restraint of sale of property – whether serious question to be tried – whether applicant will suffer irreparable damage – whether balance of convenience supports granting injunction – failure by plaintiff to prosecute their claim diligently relevant – application refused

EQUITY – application for Interlocutory Injunction – applicant claims entitlement to property under Family Provision Act (ACT) from equitable interest claimed in will of deceased – restraint of use of proceeds from sale of property: to hold the proceeds in trust on behalf of the estate – further information required by Court – interim order made

Family Provision Act 1969 (ACT)

EX TEMPORE JUDGMENT

No. SC 548 of 2008

Judge:            Burns J
Supreme Court of the ACT

Date:             26 July 2013

IN THE SUPREME COURT OF THE     )
  )               No. SC 548 of 2008
AUSTRALIAN CAPITAL TERRITORY          ) 

BETWEEN:           EMILE BRUNORO

Applicant

AND:  VIRGIL BRUNORO

First Respondent

SELMAR NEBELUNG

Second Respondent

JUSTIN NEBELUNG

Third Respondent

ADAM NEBELUNG

Fourth Respondent

ORDER

Judge:  Burns J
Date:  26 July 2013
Place:  Canberra

THE COURT ORDERS THAT:

1. The application for an injunction restraining the sale of the property at X Phillip Avenue, Watson, dated 24 July 2013, be refused.

1. Until further order, the second, third, and fourth respondents be required to hold the entirety of the proceeds of the sale of the property at X Phillip Avenue, Watson, in trust, pending any further order of the Court.

2. Costs be reserved.

3. The proceedings be adjourned for a period of two weeks to 9 August at 10 am.

1. This is an application by the plaintiff in this matter, Emile Brunoro, seeking orders that the second, third, and fourth defendants (respondents on the application) be restrained by way of injunction from permitting the sale of a property at Phillip Avenue in Watson; or, in the alternative, that the second, third, and fourth respondents be required to hold the entirety of the proceeds of the sale of the property at Phillip Avenue, Watson, in a trust account on behalf of the estate.

2. The estate which is referred to, as I understand it, is the estate of the late Bertha Brunoro. The claim, again, as I understand it, which is currently being pursued by the applicant is that, the late Bertha Brunoro, the mother of the applicant, died with a will in which she claimed an entitlement at that time to an equitable interest amounting to half of the property at Phillip Avenue. Leaving aside questions or issues which now do not seem to be pursued by the applicant, which have been raised in the Amended Statement of Claim, it appears that the applicant’s claim is simply one under the Family Provision Act 1969 (ACT).

3. The applicant’s claim is that, at the time of the death of the deceased, her estate encompassed an equitable interest in the premises at Phillip Avenue, and that he is entitled to pursue a claim under the Family Provision Act which could be satisfied out of the assets of the estate of the deceased, including that equitable interest.

4. As Mr Muller, counsel for the respondents, correctly pointed out, the question of whether an injunction should be granted, is subject to well-known principles. Firstly, the applicant for an injunction must satisfy the court that there is a serious question to be tried. Secondly, the applicant must demonstrate that he or she will suffer irreparable damage, that is, that damages will not compensate if an injunction is not granted. And, thirdly, the balance of convenience must support the granting of the injunction as opposed to not granting the injunction.

5. I am prepared to assume, for present purposes, that there is a serious question to be tried. There is no evidence before me that the applicant will suffer irreparable injury that damages will not compensate if an injunction is not granted, in addition to which, in my opinion, the balance of convenience favours not making the order of injunctive relief sought by the applicant.

6. The premises at Phillip Avenue are currently to be sold by way of auction tomorrow, 27 July. It is likely that significant cost will be occasioned if the sale does not go ahead. That is a matter which is relevant to the balance of convenience. Another matter which is, in my opinion, relevant is the fact that the applicant as plaintiff in this matter has not taken steps in order to diligently prosecute his claim. No steps appear to have been taken with respect to this matter from January 2012 when the Master made certain orders with respect to this matter, until such time as the applicant became aware of the fact that the respondents, or some of them at least, intended to sell the property at Phillip Avenue. In my opinion, the injunction sought by the applicant should be refused.

7. I now turn to the alternative remedy which is sought by the applicant, that being that, the respondents be required to hold the entirety of the proceeds of sale of the property at Phillip Avenue in trust on behalf of the estate, pending the hearing of the proceedings.

8. In my opinion, further evidence should be put before the court dealing with that issue, and in particular, whether there is any likely injury to be occasioned by the respondents if they are held out of the proceeds for a period of time, pending the resolution of the present claim. In addition to which, the question of the assets held by the respondents, which may be capable of satisfying any claim against them by the applicant, would need to be ventilated. And, finally, any claim by the applicant would also need to be ventilated.

9. I propose to make a limited order, and certainly, I will also need to be convinced that the applicant is going to prosecute his claim diligently from this point on, if I am to make final orders restraining the respondents from disposing of the proceeds of the sale. So, the order that I make at the present time is that the proceedings will be adjourned for a period of two weeks to 9 August at 10 am.

10. I will order that, until further order, the second, third, and fourth respondents to this application will be required to hold the entirety of the proceeds of the sale of the property at Phillip Avenue, Watson, in trust, pending any further order of the court. And costs will be reserved at the present time.

    I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.

    Associate:  
    Date:        5 August 2013

Counsel for the Applicant:  Mr T Crispin
Solicitor for the Applicant:  S & T Lawyers
Counsel for the Respondents:  Mr A Muller
Solicitor for the Respondents:  Nicholl & Co
Date of Hearing:  26 July 2013
Date of Judgment:  26 July 2013