New South Wales Supreme Court CITATION : Lemonjian v Nelson [2001] NSWSC 464 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 3174 of 2000 HEARING DATE(S) : 7, 8, 9, 10 May 2001 JUDGMENT DATE : 7 June 2001 PARTIES : Michael Lemonjian (Plaintiff/ Cross-Defendant) Lori Ann Nelson (Defendant/Cross-Claimant) JUDGMENT OF : Windeyer J at 1 COUNSEL : Mr A Radojev (Plaintiff/Cross-Defendant) Mr M Duncan (Defendant/Cross-Claimant) SOLICITORS : Andrew Cohen (Plaintiff/Cross-Defendant) Burt & Allen (Defendant/Cross-Claimant) CATCHWORDS : MONEY - claim to recover loan made during relationship - TORTS - Assault - whether illness contributed to fear of imminent harm - TORTS - conversion - no evidence of vlaue - TORTS - damage to goods - court estimates value where evidence only of purchase price - DAMAGES - aggravated or exemplary damages - whether applicable in "break up" of relationship - not awarded DECISION : See paragraphs 23 and 24 8 IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION WINDEYER J THURSDAY 7 JUNE 2001 3174/00 MICHAEL LEMONJIAN V LORI ANN NELSON JUDGMENT Facts: 1 Michael Lemonjian and Lori Nelson entered a relationship in late 1999 after he did some plumbing work at her unit. They slept at either his home in Willoughby or hers in Lane Cove throughout December 1999 and January 2000. From mid-January until the end of the relationship on 5 May 2000, with the exception of a holiday and a few nights and weekends, Ms Nelson lived at Mr Lemonjian's rented home at 10 Rumuera St, Willoughby ("Rumuera Street"). 2 Mr Lemonjian was paid in full for the work he carried out on Ms Nelson's unit. 3 Ms Nelson sold her unit in December 1999 and used the proceeds, together with the proceeds of the sale of some other land she owned, to purchase a block of land in Garling Street, Lane Cove ("the Garling Street property"). The balance of the purchase price was obtained from Citibank, with whom Ms Nelson had what she referred to as a "line of credit" . Documents were tendered in which Citibank referred to it as a "Mortgage Power Account". 4 Ms Nelson was negotiating with Clarendon Homes to build on the Garling Street land. During the course of these negotiations Mr Lemonjian agreed to do some plumbing work on the building, thus saving Ms Nelson some of the expenses that she would otherwise have had to pay Clarendon Homes. In accordance with this agreement Mr Lemonjian accompanied Ms Nelson to a meeting with Clarendon homes on 29 January 2000 where he presented them with his licence and insurance details. There was, however, never any binding contract between Mr Lemonjian and Ms Nelson because she never agreed to pay him for his proposed services. 5 Between 29 January 2000 and 3 March 2000, Mr Lemonjian and Ms Nelson travelled together in South East Asia. They left on the same day as the meeting with Clarendon homes. During this time they did not share every expense equally but rather he paid for some things and she paid for others. For example, she paid for the airline tickets. Both parties have presented evidence as to their particular contributions, however I consider that even if these amounts do not "even out" the parties were effectively making gifts to each other throughout the trip. 6 During the trip Mr Lemonjian revealed to Ms Nelson that he had in excess of $30,000 saved in a bank account. He agreed to lend this to her. While there was conflicting evidence about this, there is no need to discuss it because it is clear the moneys were paid and that there was no gift, therefore the plaintiff is entitled to an order for repayment. In the long run this was accepted subject to a claim by the defendant that she had made repayments totalling $8,500. There is no evidence of repayments apart from that of the defendant which I do not accept. 7 Mr Lemonjian claimed on affidavit that Ms Nelson agreed to pay the money back in 16 weeks along with 10% interest, or $3,000. However, in evidence he resiled from this position. During a series of questions about the end of the relationship he claimed that the reason the relationship broke down was Ms Nelson's refusal to reveal to his family her true age. He was then asked by Mr. Duncan for the Defendant: Q. Had she said to you, "All right, that is okay. Let's tell them that is fine"? A. Sorry, has she said that to me? Q. Yes. You would not have worried about the return of the money at all, would you? A. If we had stayed together, No. 8 This, I consider, reflects the true position. The money was not a gift, but nor was it a payment in accordance with a contract in the terms claimed by Mr Lemonjian. Rather it was a loan made in the context of the relationship. There was no agreement to pay a rate of interest in excess of thirty percent per annum; a rate far in excess of the Citibank rate. 9 On returning to Sydney, Mr Lemonjian and Ms Nelson moved into Rumuera Street and lived there until early May. During the course of the relationship Ms Nelson stored a number of her personal belongings at Mr Lemonjian's mother's house in Lindfield. 10 In early May, Mr Lemonjian became ill with glandular fever. He says he was very ill and I accept this. 11 On either 4 or 5 May, Mr Lemonjian and Ms Nelson became involved in a heated argument, apparently over whether they would tell, or whether Mr Lemonjian had told, his family her true age, they being of the view that she was twelve years younger than she was. Ms Nelson claims that the dispute began with a conversation between her and Mr Lemonjian's brother. I do not consider it necessary to make any findings on this. It is sufficient to say there was a heated argument on the night of 5 May. Mr Lemonjian telephoned members of his family and they came and took him from Remuera Street. During the course of the dispute Mr Lemonjian says the defendant threw papers and magazines in his direction. Ms Nelson admits to kicking some magazines at Mr Lemonjian. Ms Nelson also yelled at Mr Lemonjian and made some abusive remarks. After Mr Lemonjian left Ms Nelson destroyed Mr Lemonjian's business records stored on his computer, having obtained advice over the telephone on how to achieve this. 12 On 6 May both Mr Lemonjian and Ms Nelson emptied Remuera Street of the furniture and contents they had there. Ms Nelson removed some items owned by Mr Lemonjian early on the morning of 6 May and retained these. Mr Lemonjian and his brothers removed the rest of his items during the day. Mr Lemonjian's brother, Robert, attempted to remove some urns owned by Ms Nelson but was prevented from doing so by the police. 13 Ms Nelson returned what she claims were all the items of Mr Lemonjian's she held by courier in November of last year. Mr Lemonjian's mother allowed Ms Nelson to remove items from beneath her house in September of last year. Both Ms Nelson and Mr Lemonjian maintain that the other still holds items belonging to them. Mr Lemonjian's own estimates of the value of items held by Ms Nelson is under $10,000. Ms Nelson's own estimates of the value of property held by Mr Lemonjian is over $25,000. Neither party provided any valuation evidence to the court. Both parties accept nothing further will be returned. 14 Before the trial of these proceedings Mr Lemonjian claimed an interest in the Garling Street property by virtue of the money lent to Ms Nelson. He obtained an interlocutory injunction preventing her from dealing with the land. That claim was not pursued in the trial of this matter. It formed the only basis on which it could possibly be suggested the proceedings were appropriate for this Court. 15 The plaintiff claims the sum of $30,000 plus interest, damages for assault, return of goods or damages for their value and aggravated or punitive damages. Other claims were abandoned. The defendant by cross claim seeks return of goods or their value. Uncontested claims: 16 Mr Lemonjian claims $30,000 plus interest. It was accepted an order should be made for the return of the $30,000 subject to my not accepting the defendant's evidence about certain repayments. As I have said I do not accept it. Neither party impressed as a witness and the evidence of repayment was not evidence I would be prepared to believe. The money should carry interest at court rates but from the commencement of the action only in the circumstances. The Citibank rate is not the appropriate measure. Contested claims 17 Mr Lemonjian is claiming damages for assault committed by Ms Nelson on 5 May 2000. There is no claim for battery. This simplifies the issue considerably as the main discrepancy between Mr Lemonjian's evidence and Ms Nelson's was that he claimed to have been hit by magazines thrown by her while she claimed that she merely kicked the magazines across the floor. There was no debate that the altercation resulted in Mr Lemonjian calling his brother and sister and leaving Remuera Street with them. I find that he had an apprehension of contact which, I consider, was caused by Ms Nelson's actions in either kicking or throwing the magazines and her verbal expressions of anger. I consider his apprehension of danger arose because of his ill health. It is a strange case because the plaintiff is a very large man and the defendant quite a small woman. There is no evidence of damage. It was the result of a lover's fallout. I consider $250 damages should be awarded for assault. 18 Both Mr Lemonjian and Ms Nelson by claim and cross claim are seeking damages for conversion of their chattels and/or damage to their chattels by the other. Both Mr Lemonjian and Ms Nelson allege that the other retains some of their goods and denies that they retain goods belonging to the other. Aside from personal estimates there is no evidence of the value of goods. I consider that the evidence is insufficient to make any finding on either the statement of claim or the cross-claim regarding goods which may or may not currently be held, nor would it be possible to quantify the value of these goods. As such, neither Mr Lemonjian nor Ms Nelson's claims for conversion can be sustained. Therefore, the only area in which the Court can make judgment is regarding those chattels actually damaged by either party. There is evidence of two clear instances where Ms Nelson damaged property of Mr Lemonjian. They are both attested to by Ms Renaldi, who was a close friend of Ms Nelson and assisted her in moving out from Remuera Street. The first was the systematic destruction of the plaintiff's business records on his computer along with the "wiping" of the hard drive. The second was the removal of clothes and one shoe from each pair of Mr Lemonjian's, who apparently has some difficulty locating clothing and shoes that fit. As against this Mr Lemonjian admits to damaging two items of the plaintiffs; he damaged Ms Nelson's barbeque by deliberately dropping it and he slashed the skins of a pair of bongo drums which belonged to her. Again there is little evidence of value. Mr Lemonjian claims to have bought the computer for $3389.00, however it was over two years old when it was damaged. He led no evidence about the value of any clothing lost. Ms Nelson claims to have a quote for $1,800.00 to replace her barbeque, but this is irrelevant. She purchased it four years ago for $700. Ms Nelson also claims the bongo drums were worth $250, but led no evidence to support this. In this event the Court is left with very little guidance, but must do its best. The best I can do is to award Mr Lemonjian $2,000 for his computer and its records. No evidence was led as to his business loss. On the cross claim for the barbeque and drums I fix a figure of $500. 19 Mr Lemonjian is claiming aggravated or exemplary damages in respect of both the conversion and the assault. As I have said this was a lover's break up. No such damages should be awarded. The position might have been different had the plaintiff established some economic loss but the claim for consequential loss was abandoned. Costs 20 The plaintiff's claim for an interest in or charge over the defendant's property has failed and was in fact abandoned. The claim for aggravated and exemplary damages has failed. The balance of the claim was one appropriate for the Local Court, although the claim for return of specific chattels could not have been brought there. The cross claim as brought has largely failed. The defendant, on 1 October 2000, made an offer to settle for $30,000 including costs with the claims for conversion to be kept alive for litigation elsewhere. While the plaintiff is unlikely to have obtained a better monetary result after costs, I do think it reasonable not to have accepted the offer. 21 It is essential to make an order which so far as possible reduces any further costs. That is, I consider, achieved by making no order as to costs on the cross claim and by reducing the plaintiff's costs by 50 percent to take account of the very small claim which succeeded and the issue which failed. 22 Certain costs of interlocutory proceedings were reserved by Hodgson CJ in Eq and Hamilton J on 1 August 2000 and 22 August 2000 respectively. Some of those costs related to a claim against the land, some related to the goods. While I think it unlikely the claim for delivery of the goods was one this court would have considered were it not for the other claims, it did have some justification. So far as the costs are reserved there should be no order, with the intent that the parties pay their own costs. Where costs were reserved as a result of a vacated hearing on 9 March 2001, the defendant should pay the plaintiff's costs thrown away by such adjournment. To avoid separate assessment I propose to fix these costs at $500, but I give leave to either party to move for variation of that figure within fourteen days. Orders 23 On the plaintiff's claim: 1. The defendant pay to the plaintiff $30,000 together with interest on that amount from 13 July 2000 to date at the rate fixed by Schedule J to the Supreme Court Rules; 2. In addition to that amount judgment for the plaintiff against the defendant in the sum of $2,250.00; 3. There be no order as to costs reserved on 1 August and 22 August 2000, with the intent that the parties pay their own costs; 4. Order the defendant pay the plaintiff's costs thrown away by the adjournment on 9 March, 2001 assessed at $500; 5. Otherwise order that the defendant pay fifty percent of the plaintiff's costs on the plaintiff's claim. 24 On the cross claim 1. Judgment for the cross claimant/defendant against the cross defendant/plaintiff for $500. 2. No order as to costs on the cross claim. Last Modified: 06/15/2001 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.