Court of Appeal (ACT)|2017-05-26|Before: Murrell CJ, Burns and Collier JJ

Brunoro v Nebelung [2017] ACTCA 26 (26 May 2017)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

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

Brunoro v Brunoro [2012] ACTSC 2

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

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

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] HCA 27; (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

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.

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.

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) 214 CLR 118 (Fox v Percy) at 146 [88] (McHugh J); Brunskill v Sovereign Marine & General Insurance Co Ltd [1985] HCA 61; (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) 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 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] HCA 9; (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 agreed)).

(e) Underpinning the authorities as to the second class of cases is a continuing appreciation of the advantage which the primary judge may enjoy despite the availability today of complete transcripts of evidence and argument, the trend to giving evidence in chief by affidavit, and a growing understanding of the fallibility of the judicial evaluation of credibility from the appearance and demeanour of witnesses, particularly in the stressful environment of the courtroom and in an increasingly culturally diverse society: SRA v Earthline at [87]-[88] (Kirby J) ...

(f) A finding that oral testimony is disbelieved will almost invariably be express. However, it cannot be assumed that every consideration influencing the primary judge's assessment of credibility, including her or his impressions of the witness, will find expression in the reasons. In discharging the appellate function, account should also be taken for unexpressed considerations and impressions: Fox v Percy at 132 [41] (Gleeson CJ, Gummow and Kirby JJ)...

(g) Finally, the weight to be given to the advantage enjoyed by the primary judge must, of necessity, be affected to some degree by the circumstances of the individual case...

This passage was adopted recently by this Court in Volanne Pty Ltd v International Consulting and Business Management (ICBM) Pty Ltd [2016] ACTCA 49 at [53] and Ryan v Vizovitis [2017] ACTCA 3 at [132].

15. Often, the degree of a plaintiff's pain and suffering and the impact of injury and disability on the plaintiff's enjoyment of life (the bases upon which general damages are assessed) are significantly informed by a comparison of the plaintiff's pre-accident and post-accident lifestyle and activities. In this regard, it is almost always necessary for a trial judge to form an impression of the plaintiff; the credibility of the plaintiff is usually critical. A plaintiff may exaggerate the impact of an injury on their lifestyle. Or a stoic plaintiff may persist with pre-accident activities although they cause significant pain: Tsueneaki v Stewart [2013] ACTCA 34 at [24], [30]. Because, in most cases, the assessment of general damages relies heavily on the impression that the plaintiff makes on the trial court, any appellate court is reluctant to interfere with the trial court's assessment of general damages.

16. Further, an appellate court will not interfere with a trial court's assessment of general damages simply because it would have awarded a different figure. In the absence of any error of principle or fact, an appellate court should intervene only if the trial court has made a "wholly erroneous estimate" of the damages: Precision Plastics Pty Ltd v Demir [1975] HCA 27; (1975) 132 CLR 362, 369 (Precision Plastics); Sutherland Shire Council v Major [2015] NSWCA 243 at [40]; Scuderi v Raskurasingham [2017] ACTSC 41 at [44]. We note that Precision Plastics was decided prior to Warren v Coombes [1979] HCA 9; 142 CLR 531 and concerned a jury assessment of damages, where slightly different considerations may apply, but the propositions for which it stands have endured.

17. The appellant submitted that, when considering the first assault claim, the trial judge erred in failing to take into account the evidence of injuries given by Ms Harney and the inconsistency between her evidence of injuries and the version of the assault given by Justin. The appellant submitted that Ms Harney's evidence strongly corroborated the appellant's version of events and should have resulted in the trial judge dismissing Justin's version and upholding the appellant's claim.

18. Ms Harney was one of three witnesses who gave evidence of what occurred in the aftermath of what must have been either an attack by Justin on the appellant or an attack by the appellant on Justin. The only direct evidence about the attack came from the appellant and Justin.

19. The appellant gave evidence that, after he had insulted Justin, Justin grabbed him from behind in a bear hug, forced him to the ground and repeatedly stomped on various parts of his body, including his neck and head. He denied threatening Justin or using a banana cutter to strike Justin.

20. Justin gave evidence that the appellant had used a banana cutter to strike him on the top of his right thigh. Justin said that he had acted in self-defence, grabbing the appellant and wrestling him until the appellant fell over. Justin then broke the banana cutter and threw it into a fire. He reported the incident to others who were nearby and then to the police. The police photographed the injuries to Justin's legs. Justin denied grabbing the appellant's neck.

21. Ms Harney gave evidence that the appellant had run up the stairs "in a bit of a mess" and there were red marks on his throat. He had said "Justin just attacked me". The appellant had informed her that, after he had insulted Justin, Justin had jumped on him, knocked him to the ground and stomped on him. Ms Harney observed that, after the incident, the appellant had had trouble breathing for a few days, which led her to believe that he had broken ribs.

22. The trial judge correctly summarised Ms Harney's evidence at [67] of the judgment. His Honour referred to Ms Harney's observations of "big red marks around [the appellant's] throat" and the fact that the appellant had trouble breathing over the next few days, causing her to believe that he had broken ribs. At [58], the trial judge characterised the evidence of Ms Harney as "less controversial". His Honour found it unnecessary to make particular comment about her credibility. His Honour did not expressly reject any aspect of Ms Harney's evidence or find that she was a dishonest or otherwise unreliable witness.

23. In order to reject the appellant's account of events, it was not necessary for his Honour to find that Ms Harney was a dishonest or otherwise unreliable witness. Ms Harney's observation of marks around the appellant's throat was consistent with the appellant's version of events and somewhat inconsistent with Justin's account of events. However, the inconsistency was not critical and, in any event, it appeared that Ms Harney may have confused the first assault with another incident in which the appellant did sustain facial injuries. Her observations suggesting broken ribs were consistent with the appellant's assertion of repeated stomping, but not inconsistent with Justin's account of the appellant falling to the ground. Having regard to these matters, as the trial judge said, Ms Harney's evidence was "not controversial".

24. The issue before the trial judge was not whether Justin's account should be accepted in all its detail, but whether, having regard to Justin's evidence, the appellant's account should be accepted on the balance of probabilities, having regard to the seriousness attaching to an allegation of criminal conduct: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361, applied in, e.g., The Legal Practitioner v Council of the Law Society of the ACT [2015] ACTCA 20 at [43]; Dunstam v Higham [2016] ACTCA 20 at [135]. See also 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].

25. His Honour observed that Justin had made an early complaint to police, as well as to lay witnesses. His Honour also noted the evidence of Justin's leg injuries and the evidence that police had found the remains of a broken banana cutter in a fire. These matters bolstered Justin's credibility and undermined the appellant's credibility.

26. This was a claim where the testimony of the most important witnesses conflicted, and where the trial judge enjoyed a significant advantage over this Court, which must be respected. Further, the trial judge did not rely entirely on an assessment of credibility but also on objective circumstances. Having regard to the matters referred to by the trial judge at [77] - [78], his Honour was clearly entitled to find that the appellant's version of events was not established to the requisite standard.

Trial judge's findings about the second assault

27. The appellant was 56 years old at the date of the injury and 64 years old at the date of the hearing before the trial judge.

28. The appellant claimed that, on 20 May 2008, near 3 Phillip Avenue, Selmar and Adam ran at him, forced him to the ground and kicked him repeatedly. He was then grabbed by the shoulders or arms and dragged for some distance, causing a fracture of the right humerus below the shoulder, and bruising. He alleged that the fracture to the humerus had led to a permanent loss of mobility and strength in the right shoulder and upper arm.

29. The trial judge was not satisfied that the incident occurred in the manner described by the appellant. His Honour found that, after driving towards Adam, Selmar and Virgil in an erratic and dangerous manner, the appellant had reversed his vehicle and left the premises. Later, he returned. At that time, Selmar forcibly restrained the appellant, intending to detain him until police arrived. Both men fell to the ground while grappling with each other. His Honour inferred that the appellant's humerus was probably fractured when the men fell to the ground. His Honour did not accept that the appellant was kicked while he was on the ground or that Adam was present throughout.

30. The trial judge identified as a critical issue whether (as Selmar alleged) Selmar was acting in self-defence. On this issue, the trial judge found that the evidence was "finely balanced": at [152]. Ultimately, his Honour was not satisfied that Selmar had discharged the onus of establishing that he was acting in self-defence.

31. On 23 May 2008, the appellant underwent an open reduction and internal fixation of the fractured humerus. After several days, he was discharged with his arm in a sling. In mid-2008, the appellant complained to his treating orthopaedic specialist that he had pain in the right shoulder and upper arm provoked by prolonged use or loading, restriction in movement and intermittent numbness over the right ulnar aspect of the forearm. The doctor found a 37 per cent restriction in range of movement and a one fifth loss of power. He reported that, in the longer term, post-traumatic osteoarthritis may necessitate a right shoulder arthroplasty.

32. When the appellant was reviewed in May 2015, his treating doctor noted that there was no change in the level of impairment. The appellant was complaining of occasional paraesthesia in his right upper arm. The doctor agreed that the appellant had a clear capacity for light work as long as the work was restricted to below shoulder activity. He noted that the appellant was using a relatively low level of analgesic medication and that there was no immediate requirement for treatment. He referred to the reported level of alcohol consumption of one to two litres of wine a day as "grossly excessive".

33. At [56], the trial judge described the manner in which the appellant gave evidence as "that which might be expected from someone struggling with the effects of alcoholism". His Honour observed that the appellant had mumbled, seemed to have a poor memory, and appeared to talk to himself rather than to the Court.

34. In relation to an assessment of general damages for the second assault, the trial judge concluded:

162. The plaintiff has some ongoing impairments of his capacity to elevate his right arm. He suffers minor complaints of numbness and pins and needles.

163. There is no evidence of any particular interference with his life or recreational activities. There is some impairment of his capacity to work which could be relevant to his enjoyment of life but, as described below, his past history indicates that he has been either unmotivated or unable to engage in work activity in any significant manner in any event.

164. In those circumstances I will award general damages in the sum of $40,000 with $30,000 attributed to the past. This is a lower award than might have been the case had there been evidence of a more significant effect on his daily life or interference with activities that would add to his enjoyment of life. It is influenced by his history of long-term excessive consumption of alcohol which is likely to have a greater effect on his quality of life than any impairment arising from his injury.

35. On the appeal, the appellant disputed none of the factual findings of the trial judge concerning the circumstances of the second assault, the injuries and disabilities resulting from the assault, or the fact that there had been "long term excessive alcohol use": at [172].

Consideration of submissions regarding the award of general damages for the second assault

36. The appellant contended that the award of $40,000 for general damages ($30,000 for past general damages) was manifestly inadequate. The appellant argued that, at least in part, the inadequacy of the award was caused by the trial judge reducing the amount of general damages that would otherwise have been awarded on account of the appellant's alcoholism, although there was inadequate evidence that alcohol consumption impacted relevantly on the appellant's quality of life.

37. Ordinarily, a plaintiff would advance evidence of the ways in which tort-related disability has reduced their enjoyment of life. However, as the trial judge noted at [163], in this case there was no evidence of any particular respect in which the assault had impacted on the appellant's enjoyment of life.

38. Further, the trial judge found that the appellant's long-term excessive alcohol consumption meant that his pre-accident quality and enjoyment of life was already diminished. Consequently, the relative impact of the second assault on the appellant's enjoyment of life was less than would have been the case in the absence of alcoholism.

39. This proposition is self-evidently true. For example, had the appellant been a sober, young and athletic individual who, prior to the assault, had enjoyed a variety of psychologically rewarding sports and active social interactions which, post-accident, he was unable to enjoy, the relative loss of enjoyment of life would have been substantial and this would have been reflected in the award of general damages.

40. In support of the claim of manifest inadequacy, the appellant relied upon four cases which the appellant said were comparable.

41. In Nicholls v Elgas Ltd [2012] ACTSC 128 (Nicholls), a plaintiff of unspecified age who suffered burns and significant psychological harm flowing from a gas bottle explosion was awarded $90,000 in general damages.

42. In Hopps v Domin8 Holdings Pty Limited [2012] ACTSC 165 (Hopps), a 39 year-old plaintiff had been assaulted at licensed premises by a security guard. She suffered a wrist injury and ongoing loss of strength, chronic pain and weakness (described as "minimal"), as well as anxiety. There was a risk of post-traumatic osteoarthritis. She was awarded $75,000 in general damages.

43. In Selmes v Australian Capital Territory [2000] ACTSC 32 (Selmes), a 49 year-old plaintiff suffered a fall which aggravated a pre-existing back problem and caused shoulder and hip pain. Previously, he had participated in beach fishing and tennis, but after the accident he only "potter[ed] about". He was awarded $45,000 in general damages, 50 per cent of which related to past general damages.

44. In Yogini v Eveille & Heritage [2006] ACTSC 13 (Yogini), the plaintiff was a fit woman in her mid-fifties who, prior to the accident, had undertaken mountain trekking. She injured her knee and hip when she fell, causing pre-existing asymptomatic conditions to become acutely symptomatic. After the accident, she was unable to engage in strenuos activities. An assessment of $60,000 for general damages was reduced because of contributory negligence.

45. None of those cases is similar to the present case. Significantly, it is clear from the judgments in Selmes and Yogini that, in each case, the defendant's tort had a significant impact on the plaintiff's quality of life, precluding the plaintiff from engaging in specific activities that the plaintiff had previously enjoyed. The Nicholls and Hopps judgments are very brief and do not expressly compare the relevant plaintiff's pre-accident and post-accident lifestyles, but that is not to say that the trial court lacked evidence about those matters.

46. On the other hand, the present case was unusual in that there was little, if any, evidence that enabled a comparison of the appellant's pre-accident lifestyle with his post-accident lifestyle. It is trite to say that, at trial, it is incumbent upon a plaintiff to establish the degree of their pain and suffering and loss of enjoyment of life.

47. On an appeal, where there has been no error in principle and the trial court's factual findings are not disputed, it is necessary for a plaintiff/appellant to show that the trial court's assessment of general damages was "wholly erroneous" (see [16] above). The appellate court must make due allowance for the fact that the assessment of general damages usually depends on the impression that the plaintiff has made on the trial court; that impression and the trial court's conclusions about pain and suffering and interference with enjoyment of life are not necessarily fully conveyed by, or understood through, the medium of a written judgment.

48. For the reasons explained at [39] - [40] above, the trial judge did not err in the manner in which the appellant's pre-existing alcoholism was factored into a consideration of any loss of enjoyment of life.

49. Given the dearth of evidence concerning loss of enjoyment of life, the award of general damages was appropriate. Even if we considered that we would have awarded a greater amount (which we do not), we would not interfere with the award because on no reasonable view was it "wholly erroneous".

50. The trial judge found that the seven-year delay from commencement of proceedings to the conclusion of the hearing was substantially due to the manner in which the case was prosecuted by the appellant. For that reason, his Honour awarded interest on past loss of $25,000 over a period of three years, arriving at a figure of $1500: at [165].

51. The appellant submitted that the trial judge erred by wrongly attributing to the appellant the bulk of the delay between the commencement of proceedings and their resolution. The appellant submitted that a significant part of the delay was caused by the respondents. Further, the appellant submitted that delay does not generally warrant the refusal of pre-judgment interest, because a defendant suffers no disadvantage while continuing to enjoy the use of money rightfully due to a plaintiff.

52. The procedural history is set out in the trial judge's decision out [18] - [31]. In brief, the proceedings against Virgil were commenced in July 2008. The nephews were joined in September 2008. The part of the claim that concerned 5 Philip Avenue was heard in 2011 and decided in early 2012. Between February 2012 and July 2013, the matter was inactive. In July 2013, the appellant unsuccessfully sought to restrain the sale of 5 Phillip Avenue: Brunoro v Brunoro (No 2) [2013] ACTSC 153. Thereafter, discovery was the only activity that occurred until December 2014, when the matter was brought before the trial judge. In May 2015, the hearing commenced.

53. The award of interest is a discretionary matter for the trial court: Court Procedures Rules 2006 (ACT) r 1619. As the appellant observed in his written submissions, the purpose of pre-judgment interest is twofold: to compensate the plaintiff for being deprived of the use of money during the relevant period; and to encourage the early resolution of litigation. Section 5A of the Court Procedures Act 2004 (ACT) identifies the main purpose of the civil procedure provisions as facilitating the just resolution of disputes according to law and "as quickly, inexpensively and efficiently as possible".

54. The chronology shows that the inordinate delay in bringing the proceedings to a hearing was largely due to the way in which the appellant prosecuted them. There was no error in the manner in which the trial judge exercised his discretion in awarding interest on past general damages.

55. The trial judge awarded neither aggravated nor exemplary damages.

56. The appellant advanced two arguments in support of the contention that the trail judge should have awarded exemplary damages. First, the appellant argued that the trial judge erred in conflating the consideration of whether to award aggravated damages with that of whether to award exemplary damages; provocative conduct by the appellant leading to the assault was a basis for refusing aggravated damages, but not exemplary damages. Second, the appellant argued that the trial judge erred by failing to award exemplary damages for what was extremely serious criminal conduct.

57. At [174] - [175] the trial judge set out the bases upon which aggravated and exemplary damages may be awarded. The appellant conceded that, in those paragraphs, the trial judge correctly distinguished the bases upon which each type of damages could be awarded. As his Honour stated, exemplary damages are intended to punish a defendant for "conscious wrongdoing in contumelious disregard for another's rights", demonstrate the court's disapproval of such conduct, and to deter the defendant and others from similar behaviour. Unlike aggravated damages, they are not compensatory.

The injuries to the plaintiff took place as a result of an attempt by the second defendant to restrain him. The magnitude of the injuries suffered by the plaintiff were greater than might ordinarily have been expected having regard to the nature of the interaction. They occurred by accident as a result of the two men falling following the second defendant grabbing the plaintiff and then as they wrestled on the ground ... after the plaintiff was subdued he was restrained with minimal force until police arrived. The events occurred in the context of the plaintiff's erratic and dangerous behaviour shortly beforehand when he drove towards Adam, Selmar and Virgil. His conduct in returning to the site and seeking to observe what was going on from the boundary of the block was provocative in the circumstances. Selmar had been faced with the situation where there were unlawful acts being carried out in relation to property for which he felt some responsibility and in relation to which the police had been called, but had not yet arrived. He made what appears to have been an on the spot decision to grab and detain the plaintiff until police arrived. That collection of circumstances, in my view, involves sufficient explanation for the conduct to take it outside the category of cases in which an award of aggravated or exemplary damages should be made.

59. It is true that, at [177], the trial judge did not distinguish between the bases upon which he rejected the claims for aggravated and exemplary damages. However, the circumstances referred to in [177] of spontaneous reaction to provocative conduct, restraint with minimal force pending the arrival of police, and lack of intent to cause significant injury were primarily, if not exclusively, relevant to a determination of whether exemplary damages should be awarded. Given those circumstances, there was no justification for an award of exemplary damages.

60. The appellant was unable to identify any similar case in which exemplary damages were awarded.

Family Provision Act claim and estoppel by deed

61. At the trial, the appellant contended that the deceased's estate included an equitable interest in 3 Philip Avenue and that her interest in that property was available for distribution pursuant to the FPA. Consequently, the trial judge was required to determine two questions: whether the deceased had the asserted equitable interest and whether, in the context that the deceased had (or did not have) that equitable interest, provision should be made for the appellant under the FPA. His Honour answered both questions in the negative.

62. On the appeal, the appellant argued that the trial judge erred in finding that the deceased had no equitable interest in the property and erred in failing to order provision under the FPA.

63. In 1976, 3 Phillip Avenue was purchased by the deceased and Pamela Brunoro, who was then married to Henri (the appellant's brother). At that stage, the appellant lived with his parents at the adjoining property, 5 Phillip Avenue. When his parents moved elsewhere, the appellant continued to live at 5 Phillip Avenue.

64. From 1998, 3 Phillip Avenue was registered in the name of the appellant's brother, Henri.

65. When the deceased became ill in 2005, she moved to 3 Phillip Avenue and the appellant and his then partner, Ms Harney, moved in with her.

66. By a will made in December 2005, the deceased appointed the appellant as her executor, gave him shares worth approximately $25,000, and bequeathed the remainder of her estate upon trust for her five grandchildren (including the three nephews who are respondents to these proceedings). Clause 8 of the will stated:

I DIRECT that it is my wish that [3 Phillip Avenue] registered in the name of my son, HENRI YVON BRUNORO and in respect of which the equitable interest in the same is mine to hold the same as trustee to the benefit of my [5 grandchildren] to be transferred to or to the benefit of those said children as tenants in common and equal shares.

68. On 19 July 2007, Henri entered into a deed with the deceased's five grandchildren. Henri and the grandchildren were the only parties to the deed. The recitals to the deed referred to clause 8 of the deceased's will; noted that there was a dispute between Henri and the grandchildren as to the extent of the deceased's equitable interest in the property; and that the grandchildren had agreed to pay $95,000 to Henri on transfer of the property to them. The recitals also stated that the parties wished to enter into the deed for the purpose of recording these arrangements and releasing each other from any claim. The deed went on to state that Henri would execute a transfer of the property to the grandchildren for the sum of $95,000 together with a discharge of mortgage, and that the grandchildren would accept the transfer and discharge in full settlement of any claim that they had against Henri, whether under the deceased's will or otherwise.

69. At the trial, the appellant relied upon the deed, asserting that, prior to the deceased's death, Henri had held the property on trust for her. The appellant asserted that the deed created an estoppel establishing that the deceased's estate included an equitable interest in the property.

70. At [207], the trial judge identified two key problems with the appellant's contention:

(a) Estoppel by deed binds only the parties to the deed. Neither the appellant nor the deceased (nor her estate) was a party to the deed. Consequently, it did not bind them.

(b) The deed did not include an unambiguous statement as to the nature of any equitable interest held by the deceased in 3 Phillip Avenue.

71. An unambiguous statement in a deed is binding between the parties to the deed and their privies: Greer v Kettle [1938] AC 156 at 171, applied by Crispin J in Glover v Roche [2003] ACTSC 19 at [37] and also applied by Gleeson J in Rinehart v Rinehart (No 3) [2016] FCA 539; 337 ALR 174 at [627]. In Caboche v Ramsay [1993] FCA 611; (1993) 119 ALR 215 at 236-237, Gummow J outlined the principles governing estoppel by deed arising from the recitals. Quoting Halsbury's Laws of England, 4th Ed, Vol 16, his Honour explained:

"A party is estopped from denying any specific facts contained in a recital in a deed to which he is a party, provided the recital is certain, precise and un-ambiguous. He is not bound by inferences which may be drawn from the statements in a deed . . . Nothing is to be taken by way of 'intendment'; there is no such thing as an estoppel by something implied, and the averment relied upon to work an estoppel must be of something particular, not of a generality."

In Schwartz v Hadid [2013] NSWCA 89 at [83], Meagher JA said, "[t]he recitals may also give rise to an estoppel in respect of specific facts stated and adopted as the basis of a transaction, provided that the facts as stated are 'certain clear and unambiguous'".

72. In this case, neither the appellant nor the deceased was a party to the deed. Indeed, the deceased passed away well before the deed was entered.

73. Somewhat surprisingly and without reference to authority, the appellant argued that, by virtue of the mother/son relationship between the deceased and Henri, in relation to the deed, Henri should be regarded as the deceased's privy.

74. We do not accept that proposition. Henri did not enter the deed in a representative capacity. He entered it in a personal capacity, to resolve a dispute between himself and the deceased's five grandchildren. In that dispute, Henri's position was that he did not hold the whole of the property on trust for the deceased's estate.

75. Further, we agree with the trial judge that the lack of an unambiguous statement as to the nature of any equitable interest of the deceased in the property precludes the appellant from relying on the deed.

I certify that the preceding seventy-six [76] numbered paragraphs are a true copy of the Reasons for Judgment of the Court.

Procedures Rules 2006

Brunoro v Nebelung [2017] ACTCA 26

At a glance

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Judgment (120 paragraphs)

Brunoro v Nebelung [2017] ACTCA 26 (26 May 2017)

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Legislation Cited (4)

Cases Cited (9)