Kovac v Chanak

Dramatis personae

1. In addition to Libby, five witnesses gave evidence in Libby's case: 1. Nada - Libby's mother and the widow of Jovan. After trying to give her evidence in English, Nada gave her evidence through a Serbian interpreter; 2. Danica - Libby's sister; 3. Kristina - Danica's daughter. At the time of her grandfather's illness and death, Kristina was in her final year at high school; 4. Radomir - Libby's brother; and 5. The funeral director - Mr Christopher Lee.
2. The witnesses in George's case were himself and his adult daughter Rebecca.
3. George was living alone at his market garden in Warriewood. This was only a short drive from the Kovac family home in Mona Vale. All of the Kovac family were living in the family home except for Radomir, who had moved to the Central Coast. With the exception of the visit to George's property referred to in paragraph [19] below, all of the relevant events took place at the Kovac family home.

Some uncontroversial facts

1. In the 1960s, George's brother John Chanak bought some plots at the Cemetery. He gave plots 33 and 34 to George. At the time of the hearing, the plots contained the following family members: plot 32 - Milan Kovac (Jovan's father); plot 33 - Jovan; plot 34 - empty; plot 35 - Milica - George's sister; plots 36 and 37 - George's father and mother; plots 38 and 39 - John Chanak and his first wife.
2. Under the regulations governing the Cemetery, more than one person can be buried in each plot.
3. In October 2006, Libby purchased four plots in the Cemetery, a few rows away from those that had been bought by John Chanak.
4. George and Jovan had had a very close relationship, including while Jovan's children had been growing up. However, by George's own admission, at the time of the relevant events he and Jovan had been estranged for a number of years.
5. In December 2011, Jovan became unwell.
6. In March 2012, Jovan was diagnosed with lung cancer and given a very short time to live.
7. Shortly after the diagnosis, Libby visited George at his Warriewood property and told him of Jovan's illness. George almost immediately began to visit Jovan at the Kovac family home, if not daily then certainly quite regularly.
8. On 17 June 2012, Jovan collapsed at home, was taken to Mona Vale Hospital and died that same day.
9. On 19 June 2012, Mr Lee attended the Kovac family home in relation to Jovan's funeral arrangements. The Court's further discussion and findings in relation to that visit are set out in paragraphs [40] to [45] and [53] below.
10. Jovan was buried in plot 33 on 22 June 2012.
11. In November 2012, Libby provided George with a form of transfer for plots 33 and 34. The form included an Australian Tax Office form headed "Statement by a Supplier".
12. George ultimately refused to transfer the Licence but has consented to Jovan being exhumed.
13. In May 2013 (notwithstanding the letter is dated February 2013), Pittwater Council wrote to George (emphasis in original): "Re; Application for Exhumation - The Late Jovan Kovac Anglican Section J Grave No. 33 I refer lo an enquiry that Council has received from Miss Danica Kovac requesting information about the process required to carry out an exhumation of her Father Jovan Kovac's remains and subsequently relocate them to an alternative site in the cemetery. As the Licence Holder for the grave, Council must request your permission for the grave to be opened. An application for exhumation also cannot be made without a good reason, so I asked Miss Kovac the reasons for her request. She explained that that there has been a misunderstanding over whether you originally indicated that you would make a gift of the grave to Jovan Kovac which allowed him to be buried next to his father. It was also Mr Kovac's wish to be buried alongside his wife of 45 years and the adjoining grave is no longer available to her. I believe Council may also have contributed to the misunderstanding by including an Australian Taxation Office form in the "Application for Transfer of Burial Licence" paperwork that you received some time ago. Ms Kovac said that you were alarmed by the ATO "Statement by a Supplier" form. May I assure you that this form is only included in our transfer paperwork for people who wish to sell their unwanted grave or memorial niche back to Council. The form is not required to transfer the grave licence to another person as a gift. The form explains why Council has made a payment to a private person who does not have an Australian Business Number. It is not even sent to the Tax Office. I have included a copy of the form and have highlighted the relevant areas which show this. If this is a concern, you may simply use a Statutory Declaration to transfer the licence - you do not need to fill out the Council supplied forms at all. If the situation cannot be resolved an "Application for Exhumation" will be made (with your permission) to the NSW Department of Health and this will need to outline the reason for the request. If it is approved the exhumation would take place within three months of the approval and is likely to cost Miss Kovac over $25,000. …"

The evidence

1. Libby's affidavit evidence was: "11. In about late May 2012, I had a conversation with my father to the following effect: He said: "Ljubica, I don't know whether the plot next to my Dad's is mine'?" I said "I don't think it is but I will find out" … 13. I had a further conversation with my father in late May 2012 to the following effect: I said "The plot beside Deda belongs to Uncle George." He said "I would like to be buried beside my father' 14. On or about 4 June 2012, I went to see Uncle George at his home at Warriewood at about 4 30pm. When I arrived, Uncle George was at the front gate which is always locked Uncle George is very reclusive We had a conversation to the following effect: I said "Hello Uncle George, I haven't seen you for a while how are you? He said: "Oh hello, yeah I'm good" I said: "It's been a while since I have seen you…At this point I started getting teary and started to cry " He said: 'What' happened, what's wrong?" I said "Dad has cancer…or so they think…and hasn't got long to live He said: "Your kidding, when did this all happen?" I said "He started feeling unwell in December last year and they have only just recently found out that it might be cancer." He said: "I can't believe it I have actually been thinking about him. My Doctor had actually asked me whether I had any family/relatives that I could see and talk to' I said "The reason I'm here Uncle George is because Dad said to me last week 'Ljubi I don t know whether the plot next to dads is mine?" I said to him that I didn't know but I would find out, so last week I called Pittwater council and asked them who the plots next to Deda s (meaning Grandfather) belonged to and they said that they belonged to you and that's why I'm here. I know that in the past you have always said that "there would be no way in hell that you would be buried down there, next to them" so I'm here to ask you whether you would consider selling the plots to me. I would pay you the going rate that council are asking for or a price that you say. If you don't want to sell that's fine we will stay as we always have as I have already purchased 4 plots a couple of years back in preparation which is another option for you - we could also do a swap if you would like." He said: "I am going to come over and see Jovo (my father). I can't believe it. I should of come over sooner." I was aware that over the years Uncle George a major falling out with his family and particularly his brother, John and his sister Olga about money and property. … 16. During Uncle George's visit on 5 June 2012, he had a conversation with my father to the following effect: He said: "Jovo because you helped me so much during the years and you are like a brother to me I am going to give you the plot so you can be buried next to your father. I don't want or need it as I will never be buried down there, so I am giving it to you as a gift from me." My father said: "Thank you George, no problem." 17. When Uncle George was leaving on 5 June 2012, my mother, my brother and I walked out to see him off and we stopped on the front balcony and had a conversation to the following effect: I said: "Thank you for coming Uncle George" He said: "I wish I came over sooner My Doctor had asked me about 6 months ago whether I had any friends or relatives that I could spend some time with and I said that I had no-one except for Jovo, I have thought about coming over/ I told your father that he can be buried next to his father and I'm giving that to him from me" My Brother, mother and I said: "Thank you very much." My mother says: "Not for free we have to pay you for it." I said: "We want to pay you we don't want it for free, however we require both plots as we would like mum to be buried next to him when the time comes. I don't want them to be buried on top of each other." He said: "I don't want payment as I am not going to be buried down there I have already spoken to Rebecca and said that I want to be cremated They are not my family and I don t want to be anywhere near them for what they did to me As for the other plot I am going to have to speak to Rebecca to see what she wants to do Whether she wants keep the other one for herself or Callum I'm not sure but I will talk to her and let you know." I said: "Thank you. As I said yesterday I have already purchased four plots a few rows back so if Rebecca still wants to keep the other one there's no problem or hard feelings I totally understand, our relationship will stay the same, but we require both." … 19. On or about 8 June 2012, Uncle George came to visit my father and with him were his daughter, Rebecca and her son (his grandson) Callum George, Rebecca and Callum stayed for a few hours and when they left, my mother, my brother and I walked out to see them off but we stepped and talked on our front balcony and had a conversation to the following effect: He said: "I have talked to Rebecca about the second plot and she doesn't want that plot either so you can have both. I have already discussed with Rebecca that when I die I don't want anyone to know or come to my funeral - I want to be cremated." Radomir said: "I have said the same thing, I'm not going to be buried I'm going to be cremated as well." I said: (directed at Rebecca) "Are you sure you don't need the other plot you might change your mind? Rebecca said: "No we've discussed it, I don't need it." I said: "Thank you very much, as I said before I don't want the plots for nothing I want to pay you for them, whether it be the $8000.00 the going rate that council are now charging, or a price that you think it's worth or maybe you would like to swap the plots over for the ones I have already purchased if you don't want to be buried next to them down there." Mum said: No, we don't want it for free you have to be paid." He said: "You would hurt my feelings and I would be offended if you didn't accept this as he has helped me a lot during my life. I don't want to discuss payment as I am giving that to Jovo, I am a man of my word - any more discussion about it I will change my mind." … 22. On 19 June 2012, the funeral director Mr Chris Lee from Peninsula Funeral Services, came to visit us at our home to settle the arrangements for the funeral and burial Whilst Mr Lee was at our home, Uncle George arrived and there was a conversation around the kitchen table with Uncle George my sister, my brother, Chris Lee and myself to the following effect Chris said: "Will your father be buried in an existing grave or will you be requiring to purchase one?' I said: "We currently have four plots pre purchased at Mona Vale cemetery, however my Uncle has two plots which he is giving us as my grandfather is already buried down there and dad will be buried next to his father. Isn't that right Uncle George." George says: "That's correct I am giving them the plot for their father to be buried in ' Chris says: "So the plot that he will be buried in is in whose name?' George says: "Mine" I say: "His" Chris says: "If that's the case then I will have to get you to sign this form." George says: "What's this form for? Chris says: "It's an authority form that says that you're allowing him to be buried in that plot" George says: "Okay" Nada Kovac (mum) came in from lounge room and said: "Ljubi the signing over of the plots needs to also be sorted out now" I say: "We can sort this out later mum" Chris says: "What did she say?" I say: "Mum would like the plots signed across now ' Chris says That's what you need to organise with council I don't have anything to do with that, this is only for the burial." Chris then fills out the form based on the information that he asks George Full name and where plots are located and George answers him ' … Annexed hereto and marked "E" is a copy of the Burial Instructions signed by Uncle George."
2. In these reasons I shall refer to the Burial Instructions as the "Instructions".
3. In evidence in chief (to which she adhered in cross-examination) Libby also gave this evidence: "Q. Did you ever have any discussions with your mother about - I'm sorry, with your father concerning the subject of whether he wished to be buried with your mother? A. I did. Q. Could you tell the Court what was said? A. Well, my dad wanted to be buried next to his father but alongside my mum. Q. As best you can, could you use direct speech? A. Okay. Q. "I said, he said." A. Okay. Q. As to what your father said to you. A. Yep. My father said to me, "I wish to be buried next to my father, if those plots are available, but I want to be buried next to your mother." Q. When did he say that? A. We've had numerous conversations throughout the years and especially prior to him passing away. Q. You mean immediately prior to him passing away, do you? A. No, previous - like, prior, like, months before he was passing away. HIS HONOUR Q. Before he was diagnosed? A. Yes - yes, there were conversations before he was diagnosed but especially after he was diagnosed that he was dying, so, yes."
4. Radomir returned to the Kovac family home on being told of his father's terminal illness. Radomir's affidavit evidence was: "5. I recall on one visit, George sat next to my father, speaking Serbian, and said words to the effect: George said: "I am giving you my plot so you can be buried next to your father." My father cried and said: "Thank you but don't you need them for you and your family." George laughed and said: "No we don't. We have spoken and I'm getting toasted when I go. This is my gift to you my brother. I laughed at George's use of toasted to described (sic) being cremated. My father said: "Thank you." 6. Following the above, I walked outside with George and Ljubica and Nada joined us. George said: "I've told Jovo that I am giving him the plot as a gift." Ljubica & Nada both said: "Thank you George." Ljubica said: "George, we will pay you or we can give you our plots." George said: " Don't be silly, it's my gift to Jovo." Ljubica said: "We need Dad and Mum to be buried together. We need 2 plots." George said: "I will speak to Rebecca and I will get back to you." 7. Some days after the conversation in 6 above, George came to 9 Maxwell Street with Rebecca and Callum. I was there with Ljubica and Nada and we had a conversation to the following effect: George said: "Me and Rebecca have spoken and Rebecca doesn't want the other plot." Ljubica said: "I can pay you George for the plots or I can give you 2 of my plots." George said: "No, it's a gift. I am not going to be buried there. I'm going to be cremated.:" I said: "Cremation is fine." … 9. On 19 June 2012, there was a meeting with the funeral director, Chris, with both my, sisters, myself and George. We had a conversation to the following effect: Chris said: "Do you need to purchase a plot or do you already have one?" Ljubica said: "George is giving us 2 plots." Chris said: "George, you will need to sign this form." Chris handed George a form. George read it, signed it and gave it back to Chris. … 13. Shortly after, in May 2013, Danica and I went to visit George at his home and we had a conversation to the following effect: George said: "I have changed my mind and I am not signing any paperwork. I will not let Nada be buried there. The forms your sister gave me will get me into trouble with the ATO." Either I or Danica said: "I don't think Ljubica would ever get you into trouble with the ATO. There must be some misunderstanding.""
5. Danica deposed in her affidavit: "6. A week or so prior to my father's death, there were conversations to the best of my recollection with my mother, Libby and brother Radomir, and I to the effect: Libby said: "Dad would like to be buried beside deda (his father). Uncle George owns 2 plots there beside deda. I have been to see Uncle George to see if he will agree to that." 7. About a week before my father died, I had a conversation with my father to the following effect: He said: "Did you hear that Uncle George came over to see me and he gave me the plot next to my father. I am very happy - that is where I want to be buried." I said: "That's good." … 11. On 19 June 2012, we had a meeting with the funeral director, Chris, at home. Libby, my mother, my brother Radomir and Uncle George were all present and we had a conversation to the following effect: Chris said: "Where is Mr Kovac to be buried? Do you have a plot?" Libby said: "We have plots but Dad is to be buried next to our grandfather in a plot Uncle George is giving us." Chris said: "Who owns the plot?" Libby said: "Uncle George." Chris said: "Mr Chanak you need to sign this form which allows Mr Kovac to be buried in your plot." Uncle George said: "Okay", and then signed the form. About this time, my mother came into the room and said (in Serbian) words to the effect: Mrs Kovac: "Everything needs to be sorted out now and the plots sorted out." Chris said: "What did you say?" I said: "Mum wants the plots sorted out and transferred." Chris said: "The form Mr Chanak signed is to permit the burial. You will need to do the transfer through Pittwater Council." … 16. My brother and I went to see Uncle George at his place in May 2013, following the conversation with my sister and we had a conversation to the following effect: George said: "I have changed my mind. I am not signing any paperwork or signing anything over. I will not let Nada (my mother) be buried next to your father. The forms Libby gave me would get me in trouble with the tax office."
6. Nada's evidence was: "10. I recall a conversation at this time, to the effect with Uncle George, Radomir, Libby and myself, outside our house as Uncle George was going: George said: "You heard it. I said to your father, I give him the plot." Libby said: "Uncle George, thank you but I need 2 plots, 1 for Dad and 1 for Mum." George said: "This other plot is Rebecca's plot. I know for mine, I not need it. I get burned. I must ask Rebecca." 11. A couple of days later Uncle George came to our house with Rebecca his daughter, and Callum his grandson, and said words to the effect: Uncle George said: "Rebecca no like to be buried there. You have 2 plots." I said to Uncle George: "Thank you. Libby and I pay you." Uncle George said: "No pay. You make me cranky. Jovo always helped me." Libby said: "Thank you." 12. After the above conversation, Uncle George came every day to visit Jovan until he died and every day I would thank him and offer to pay him for the plots I also said: "George are you sure?" George said: "You make me cranky. Jovo always help me very much." 13. After Jovan died, there was a meeting at our house with the family, the funeral director, Chris. Uncle George was also there. Chris said to Libby: "You got plots?" Libby said: "I got plots but my Dad is being buried next to his father. Uncle George has those plots and is giving them to us." Chris said: "George, you will have to sign to let us bury but this form is only for burial. You must go to Council, Libby, to put in your name." George then signed the form that Chris gave him. I said: "You must do everything now." Libby said: "Mum, Uncle George and me will fix everything after."
7. Nada also gave this evidence in chief, from which she did not depart in cross-examination: "Q. Did you ever speak to your husband, Jovan, about what he thought about having two bodies buried in one grave? A. Yes. Q. Could you tell us what you said to him and what he said to you? A. Jovan said me and him - "I, I'm bury next" - my husband said, "I'm buried next to my father, you buried next to, next to me." Q. I'm asking you, though, about anything Jovan said in relation to having two bodies buried in one burial plot. A. Never. Always said, "I like it one plot." … Q. What did you say and what did Libby say when you spoke to each other about whether you should be buried next to Jovan? A. My husband said, "I'm buried next to father, you next to me." My daughter not told me nothing, what I'm buried. They said, "I'm love it, you to be together," and not like boss me, what I'm, what I'm like. I'm like buried next to my husband, if - yes. …"
8. Kristina's affidavit evdence was: "6. I recall hearing a conversation to the following effect on a number of occasions: George said: "You take both plots for Jovan and Nada." Libby said: "Please let me pay for the plots or give you 2 of my plots." George said: "No." and when saying it sounded offended. George said: "I don't want anything for these plots, it's the least I can do for Jovo (my Grandfather). He's helped me out so much in the past. I would never want to be buried near my family. I want to be cremated and I've spoken to Rebecca and she has no interest in those plots." 7. I recall a conversation on the balcony of … Mona Vale, again before my Grandfather died. Rebecca, George and the Kovacs (Libby, Radomir and Grandmother) again discussing the plots and again words to the effect: George said: "I have no interest in using them. They are now Jovo's."
9. Kristina also gave evidence that when she heard the conversations set out in her affidavit, she was inside the house with Jovan but was able to overhear the conversations that took place on the balcony.
10. Mr Lee deposed in an affidavit sworn on 15 August 2016: "4. On or about 19 June 2012, I went to … Mona Vale and met with Ms Kovac. Ms Kovac introduced me to George Chanak ("Mr Chanak"). There were people coming and going and Mrs Kovac was in the lounge meeting visitors. 5. We discussed the general arrangements and I filled out a form with Ms Kovac for Births Deaths and Marriages and we had a conversation to the following effect: Ms Kovac said: "Uncle George is letting us bury Dad in one of his graves." I said to Mr Chanak: "I will need you to sign a permission. This is not signing the grave over, it is only the permission to bury Mr Kovac." Mr Chanak then signed the Pittwater Cemetery Permission Form. 6. On 22 June 2012, I conducted the funeral and burial of Mr Kovac. 7. Since 22 June 2012, Mr Chanak has approached me a number of times about the burial. 8. I recall Mr Chanak approached me a few weeks ago and said words to the effect: Mr Chanak said: "You made me sign the form on the day of the funeral. We stopped at the house between the church and the cemetery and you made me sign." I said: "No that is not correct. You signed it when we met a few days before the funeral. That form must be signed beforehand and given to Council, so the burial can take place." Mr Chanak said: "I want a copy." I gave him a copy, a copy of which is annexed hereto and marked "A"."
11. The form annexed to the affidavit was the Instructions. Mr Lee was not required for cross-examination.
12. George's evidence was: "10. I first became aware that Jovo was sick at the end of May/beginning of June 2012 late one evening, I was finishing my work in the bottom paddock when a car drove up to my gate of my home in Warriewood. It was dark and a sole occupant got out of the car and walked to my gate. To my surprise, it was my cousin Jovo's daughter, Ljubica, whom I had not seen in approximately 20 years, I walked over to the gate and I said to her "Hello, what are you doing here"? She replied "Oh Dad's not well, he has cancer, and he is not expected to live, he has a matter of weeks left". I said "Shit hey. Where is he? Is he in hospital or at home? She said "No he is at home". I said "Ok, I will come over tomorrow and visit him. It's strange that lately I have been thinking of him and going to visit him as my doctor had suggested a long while ago that I should go visit friends or family as I spent too much time on the property 7 days a week without a break". She said "All right we will see you tomorrow, goodnight". And then she left. Ljubica did not cry while she was at my home and she did not mention anything about a burial plot. We did not discuss this at all when she was at my home and I deny that I ever said to her "there would be no way in hell I would be buried down there". 11. The following day I went around to Jovo's house and when I went inside Jovo was sitting on the lounge with tubes coming out of his nose which led down the hall to an oxygen machine that pumped the oxygen through to him. He looked sad and very frail, nothing like I had remembered him. He had difficulty talking and was clearly having a great deal of trouble breathing. We had limited conversation, I tried to do most of the talking as he was clearly uncomfortable trying to talk and I did not want him to make him (sic) feel worse by trying to chat with him. I was very sad to see my old friend in such poor condition. His wife Nada was also there and I briefly spoke with her and then I left after about an hour. 12. I deny that I had the conversation with Jovo as suggested in paragraph 16 of Ljubica's affidavit. I did not discuss the burial plot with Jovo on this occasion. … 15. Approximately a week before his death, I went with my daughter Rebecca and my grandson Callum to visit with Jovo. Jovo's wife Nada, Jovo's daughters Ljubica and Danica, Jovo's son Radomir and Jovo's granddaughter Kristina were there with him. 16. After chatting for a while I said in the presence of Jovo, his wife, daughters and son: "Jovo, Ja imam dva mjesta na groblje, na ota dva mjesta Ja mozem podjeiiti na cetri komada, meni samo tri mjesta treba, jedno za mene jedno za moju cer jedno za moga unuk a cetvrti nek bude tebi tako moj dragi prijatelj da si zakopat do tvoga oca". Translated into English, I said "I have two grave plots in the cemetery, these two plots I can divide into four lots, I only need three lots, one for me, one for my daughter, one for my grandson and the fourth is for you my dear friend so that you can be buried next to your father". Jovo became visibly emotional and bowed his head and said "Dobro, hvala ti". "Good, thank you". … 20. On the morning of June 22nd, 2012, myself, Rebecca and Callum went to Jovo's house where we waited for the rest of the immediate family members to arrive. The hearse and funeral cars arrived and Mr Chris Lee JP from Peninsula Funerals approach me with some paperwork in his hand and asked me to sign something. A copy of this document "Burial Instruction" (which was dated 19 June 2012) is annexed as Annexure A. We had a conversation to the following effect: I said "What is it for?" Mr Lee said "I need to get your signed permission to allow the deceased to be buried in one of your burial plots." I said "I don't like signing anything without my solicitor's approval". Mr Lee said "This is just giving permission to bury the deceased only" I said "And the plots remain in my name?" Mr Less said "I assure you that in no way will it affect your ownership of your burial plots and that they will still remain in your name". So I then signed the form for the burial of Jovo to take place."
13. Rebecca's evidence was: "2. I have read the affidavit of Ljubica Kovac "(hereinafter referred to as "Ljubica") the Plaintiff, sworn 22 December 2016. Contents of Ljubica Kovac's affidavit sworn 22 December 2015 referring to me 3. I agree that I did attend the Plaintiff's home on a few occasions with my father and my son Callum. Often conversation took place between my father and the Kovacs in Serbian and as I do not speak Serbian I did not take part. 4. I say as follows in relation to various paragraphs of her affidavit: Paragraph 19: I deny this alleged discussion took place as set out. I do not own any burial plots. Ljubica did not say to me "Are you sure you don't need the other plot you might change your mind?", or any similar words, and I did not reply saying I did not need the plot.
14. In a later affidavit she said: 2. I do not own any graves. I am aged 43 and before this dispute about the burial plot arose have never thought about my burial. My father has never asked me whether I intend to be buried in the Chanak family burial plots and has never asked me if I did not need a plot or whether I objected to a plot being transferred. 3. I do recall I had a conversation with my son Callum some time after this dispute arose about burials and cremations. Callum said to me "Mum I would like you to be buried so that I have somewhere to come and visit you" I laughed and said something to the effect "When I'm dead, it's your choice what you do with me anyway". Reply to affidavit of Christopher Wayne Lee sworn 15 August 2016 5. The first time I met the undertaker, Mr Lee, was on the day of Jovan's funeral, 22 June 2016. 6. I drove with my father and son Callum to the deceased's home. While I was standing on the porch with my father a man came over and introduced himself and said words to the effect "I need you to sign this". The document was on a clipboard or something similar and he tried to balance it on the handrail of the porch. My father said "What's this for?" Mr Lee said "It's just permission to bury Mr Kovac in your burial plot". My father said "I don't like signing things without my solicitor looking at it first. I'm not transferring the plot. I am only letting Jovo be buried there." Mr Lee replied "No, no this is just permission to bury him. It's not transferring ownership. You will still be the owner." My father then signed the form."

The meeting with Mr Lee on 19 June 2012

1. Unsurprisingly, no one had any contemporaneous notes of the relevant conversations. There were, however, two documents which can be characterised as the only contemporary, independent documents in the proceedings. The first of these is the Instructions, a copy of which is Schedule 1 to these reasons.
2. The evidence of Mr Lee and the other witnesses in Libby's case was that the Instructions was signed by George on 19 June 2012 at the Kovac family home. George steadfastly maintained that he had signed it at the family home on the morning of Jovan's burial.
3. In the course of the hearing another document was produced: a booking confirmation form (the "Confirmation"), also dated 19 June 2012 and signed by George. A copy of the Confirmation is Schedule 2 to these reasons. It bears facsimile headers which the Court finds demonstrate that it was faxed bearing George's signature from Peninsula Funerals on 19 June 2012 to Pittwater Council and from Pittwater Council (signed by its cemetery supervisor) to Peninsula Funerals on 20 June 2012.
4. It was not in dispute that insofar as it appears that George's signature on both those documents was witnessed by Mr Lee's daughter and office manager, Ms Rachael Lee, she was not present. However, that does not undermine the evidentiary value of the documents. As I discuss further in paragraph [53] below, in my view the conclusion is irresistible that George signed them as Mr Lee and Libby's other witnesses testified on 19 June 2012 at the Kovac family home.
5. In the face of these documents George asserted with increasing vehemence that his version of events was correct. His evidence under cross-examination in relation to the Confirmation included: "McGRATH Q. In fairness, I'm going to suggest to the Court that that is evidence that this document was faxed by Peninsula Funerals, Mr Lee's company, to the addressee shown on the form on 19 June 2012. Is there any explanation you can give that would explain how or why that annotation comes to have been printed on the top with the 19 June date? A. I've been through that so many times, trying to figure out what - and it's either one of two things. The document itself was already filled and embarrassingly before I was asked to sign it, and you can adjust the, you can adjust the, the date stamp for instance, put the thing through, get it, get it back and then reset the, the date stamp so that it's upped the date. HIS HONOUR Q. Are you suggesting the document has been falsified? A. Yeah."
6. In answer to questions from the bench about the Instructions, George went on to suggest some kind of conspiracy between Pittwater Council and Mr Lee: "Q. Because at the moment it seems to me inconceivable that the burial would be taking place on the 22nd and that the first time the funeral director would have got a consent for Jovan to be buried in your grave was on the morning of the funeral. What do you say to that? A. That's, that's what happened, on the morning of the funeral. Q. It seems to me inconceivable that the council officer, Ms Phipps, would have confirmed the details without your signature on the document, at least a day or two before the funeral. What do you say to that? A. It's not impossible, and in amongst friends and mates, whatever, if they, if they stuff up and cover up for one another it Q. Who are the friends and mates, and what's the stuff up or cover up? A. Well, with, with the funeral director's side and someone in, in the council offices. Q. You are telling me that as far as you're concerned it's not even possible that you are mistaken? A. Yeah, no, no. Yeah. Q. You're absolutely certain that this happened A. God's my witness, I, I signed it on the 22nd, and I'm on oath. I realise, you know, if I said different it'd be a lie."

Conclusions as to credit

1. Given every witness' resolute adherence to his or her evidence under cross-examination, each party pointed to what, with no disrespect intended, might be referred to as "straws in the wind" to persuade the Court as to who should be believed. There was much parsing of particular statements and other pieces of incidental evidence. That is not unusual for a case of this kind where there is virtually no independent, contemporaneous evidence of what is said to have passed between the parties. However, the Court has ultimately come to a firm view based on the parties' evidence and their demeanour as it emerged in the witness box.
2. On Libby's side, it is Kristina's evidence that has primarily persuaded the Court of the truth of Libby's case. Kristina is the least interested in the sense that she is the most separated both in age and generation from the other protagonists. While clearly it cannot be said she was independent, she seemed to be most removed from the heat of events. Her evidence was delivered in a clear, straightforward manner. She appeared to want to assist the Court by telling the truth and she gave forthright answers to the cross-examiner.
3. One incidental piece of evidence was, to my mind, quite powerful in support of the truth of Kristina's version of events. That emerged during Danica's cross-examination when she volunteered, in a way that I found entirely truthful, that it was some way into the preparation of the case when the plaintiff's side of the record even became aware that Kristina was able to give any evidence at all: "Q. When you became aware that these court proceedings were going to be commenced, or at some time after they had been commenced, did you have any discussions with your daughter Kristina about what she could recall about the events in relation to the burial plots? A. No. The only time that we spoke about it I think was - we were talking about I had to go, I think it was mediation or something. Something came up in regards to me coming there. And then my daughter is a bit older now, she was standing there listening and she, she said something and they openly had a conversation about - Kristina goes, "Oh, I remember George. Remember when we went to see" - she referenced a particular time. I said, "No, I don't remember, to be quite honest." And that's when everyone knew that maybe Kristina was privy to a lot more information than we thought, and that's when she was involved. But I never have had a conversation about what she's been involved in or what she's heard."
4. Two particular criticisms made by George of Kristina's evidence need to be considered.
5. First, it was suggested that Kristina may have been somewhat distracted by her studies for the Higher School Certificate and would not have the kind of recall to which she testified in the witness box. Her evidence, which I accept, was that she was more focussed on her grandfather at that time because her ambitions, with no disrespect, did not require a high mark in her exams. Her ambition was to go into real estate, something which she has in fact done. This was to be done through TAFE. I accept, therefore, that her level of concentration on the Higher School Certificate would not have been sufficient to cast doubt on her recollection.
6. Second, Mr Hughes also criticised Kristina's evidence when she said that the conversation which she did overhear was "loud". Mr Hughes submitted this was quite unrealistic. I accept Mr McGrath's answer to that criticism that, taken in context, what Kristina was saying was that the parties to the conversation on the balcony were speaking in Serbian (in which Kristina was fluent), a language which can give the impression of being spoken at volume, perhaps more reflective of the style and emotion of the persons speaking. I do not think that Kristina's description of the conversation as "loud" detracts from what seems to me to be its fundamental truthfulness.
7. Kristina's evidence is the point of entry into my acceptance of the plaintiff's case. However, I have also concluded with certainty that, taking their evidence on its merits, George and Rebecca cannot be accepted as reliable witnesses.
8. The primary matter upon which I rely for the conclusion that George is not a reliable witness is his strange and determined adherence to his evidence of when the Instructions and Confirmation were signed. As I have said, the inference appears to be irresistible that he signed the document on 19 June 2012 and that is the finding which the Court makes. Not only is that the date which the documents are dated, but it is common sense that such documents would have to have been executed in advance of the day of the funeral. I am unable to imagine any circumstance where a funeral director would proceed to conduct a funeral where a person was to be buried in a plot without, in advance of the day of the funeral, having all relevant consents in place. So much also, I would infer, was the practice of Pittwater Council, based upon the Confirmation. Obviously enough, Pittwater Council had to give its permission in advance of the day of the funeral.
9. George's stubborn adherence to his recollection and refusal to admit even the possibility that he was mistaken, suggest either that he is a determined liar or, more likely, that he has persuaded himself as to the truth of his version of the facts. Whichever it is, it bespeaks an unreliable recollection. My doubt about him as a witness generally was fortified by his extravagant explanations of why his recollection must be correct and the documents were wrong, as well as his approaches to Mr Lee which appear to have been intended, at least in part, to influence Mr Lee's evidence. As I have noted, George came to suggest that there had been some collusion between Mr Lee and Pittwater Council and that the documents had in some way been doctored between them to "cover up" some mistake.
10. The next significant matter upon which I rely in coming to my conclusion as to which version of events is to be believed is the inherent likelihood of the correctness of Libby's case: it is hard to imagine that she would have allowed Jovan to be buried in plot 33 without some guarantee that Nada could be buried next to him, particularly in circumstances where she (Libby) already had her own plots. I do not accept the argument put on behalf of George that the desire to bury Nada in the adjacent plot to Jovan emerged as an afterthought in the weeks following Jovan's funeral.
11. While not decisive, I am also fortified in my conclusion by what might be referred to as the gold cross incident. I accept Libby's evidence, and that of the other witnesses for her, that the Kovac family had offered to pay George for the two plots, and that he had refused. The evidence was that Rebecca's son, Callum, in accordance with a Serbian tradition, had been invited to carry a processional cross at Jovan's funeral. There did not seem to be any dispute between the parties that this was a considerable honour for a young boy.
12. After the funeral, Nada purchased two quite expensive gold crosses. One of these was given to Callum. I accept the evidence given for Libby that, at the time the cross was presented to Callum, it was explained that a particularly expensive cross had been chosen in part by way of compensation because George had not agreed to receive any payment for the two plots.
13. Another matter I have taken into account is that it seems inherently plausible that, in the emotion of the circumstances surrounding Jovan's illness and death, an offer of the kind which I have found George made - including agreement to provide both plots - would be the sort of thing that one could well imagine happening, particularly in the first flush of a rapprochement between George and Jovan after some years of estrangement. No doubt it was a time of high emotion for both men and a generous and extravagant offer of the kind which I have found George made seems to me to be entirely in accordance with the probabilities of the situation.
14. In reaching this conclusion as to who is to be believed, I have also taken into account the possibility of a simple misunderstanding arising from the stressful circumstances in which the discussions took place. However, I am not persuaded that is a sufficient explanation to explain why the Kovac family would either have settled for, or not noticed, that all they were being offered was a right of burial for Jovan with no provision for Nada.
15. I have also considered the question of the Kovac family concocting their evidence together. I have been mindful of the old principle "pondero, non numero" (that one should consider the quality of the evidence rather than the number of the witnesses). My overall impression of the way in which each of the Kovac family members gave their evidence was that collusion or concoction was most unlikely.
16. It is therefore also necessary for me to say something about Rebecca's evidence, which was advanced to support her father's version of events. Three points should be made.
17. First, her denial of the conversation in relation to the offer of the plots, was (oddly) limited only to part of the whole conversation at which she was present (see paragraph [26] above), namely: "I [Libby] said: (directed at Rebecca) "Are you sure you don't need the other plot you might change your mind? Rebecca said: "No we've discussed it, I don't need it.""
18. She did not deny the entirety of the course of the conversation.
19. Second, and critically, she supported her father's version of events about when he signed the Instructions. I accept Mr McGrath's submission that, if, as the Court has done, the Court accepted Libby's submission as to when the Instructions (and Confirmation) were signed, Rebecca's evidence became as unsustainable as George's.
20. Third, and underlining both of the two previous points, Rebecca struck me as an unconvincing and somewhat unengaged witness. Insofar as she denied matters, I am not persuaded that she had any actual recollection one way or the other. This was well demonstrated by the exchanges, particularly in re-examination, about how much of the particular conversation with Libby she denied. Her observations in re-examination "I don't remember a lot of it" and "At this stage I'm just having a problem remembering any of it" struck me as being far more likely to be truthful.
21. It is not necessary for me to conclude whether Rebecca is lying, or has come to believe her father's case. It may be that her indifferent recollection encouraged her to accept as her own recollection a version of events favourable to her father. She conceded that there had been discussion between herself and her father about the evidence.
22. Similarly, in relation to her denial of the particular conversation with Libby, I was left with the impression that she had no actual recollection one way or the other, but had reasoned backwards from the fact that she herself did not own any burial plots. The difficulty with this was that it was never suggested that she herself owned any burial plots. It was always the case that her father owned the plots and that, on the evidence advanced for Libby, he would be consulting with Rebecca as to whether or not she wanted to be buried in one of his plots.
23. The Court therefore accepts Libby's witnesses as to what occurred. In particular, the Court finds that prior to Jovan's death, George had represented to Libby that he would give her both plots 33 and 34.

Equitable estoppel

1. Although the argument for Libby was put in several different ways, it was primarily one of equitable estoppel and can be decided accordingly. This was the approach taken by the Court of Appeal in Arfaras at [79] and following.
2. The essential elements for an equitable estoppel were set out in Walton Stores v Maher (1988) 164 CLR 387; [1988] HCA 7 at 428-429: "In my opinion, to establish an equitable estoppel, it is necessary for a plaintiff to prove that (1) the plaintiff assumed that a particular legal relationship then existed between the plaintiff and the defendant or expected that a particular legal relationship would exist between them and, in the latter case, that the defendant would not be free to withdraw from the expected legal relationship; (2) the defendant has induced the plaintiff to adopt that assumption or expectation; (3) the plaintiff acts or abstains from acting in reliance on the assumption or expectation; (4) the defendant knew or intended him to do so; (5) the plaintiff's action or inaction will occasion detriment if the assumption or expectation is not fulfilled; and (6) the defendant has failed to act to avoid that detriment whether by fulfilling the assumption or expectation or otherwise. For the purposes of the second element, a defendant who has not actively induced the plaintiff to adopt an assumption or expectation will nevertheless be held to have done so if the assumption or expectation can be fulfilled only by a transfer of the defendant's property, a diminution of his rights or an increase in his obligations and he, knowing that the plaintiff's reliance on the assumption or expectation may cause detriment to the plaintiff if it is not fulfilled, fails to deny to the plaintiff the correctness of the assumption or expectation on which the plaintiff is conducting his affairs."
3. I am satisfied that each of the elements set out by the High Court are satisfied in this case.
4. As to the first, I find that Libby assumed that George would transfer to her plots 33 and 34, and that George would not be free to withdraw from that offer. Having found the relevant representation was made, and accepting Libby's evidence that she acted in reliance on them, it is obvious that she did not act on the basis that this was an offer from which George would be free to withdraw. The very nature of burying a person in a plot bespeaks finality and the inability of the offeror to withdraw from the arrangement that has been proposed and accepted.
5. As to the second element, I have no doubt on the basis of Libby's evidence that George induced Libby to adopt the assumption or expectation that the two plots would be transferred to her.
6. Similarly, in relation to the third element, I find that Libby acted in reliance on the assumption or expectation by making the arrangements for Jovan to be buried, as he in fact was, in plot 33.
7. As to the fourth element, it follows that I find that George knew or intended that Libby would act in reliance on the representation. The sequence of events makes that perfectly clear.
8. As to the fifth element, that of detriment, I respectfully agree with and follow the Court of Appeal's analysis in Arfaras at [107], that it is sufficient detriment for the purposes of a case such as this, that Libby, as executrix, has exhausted her right and duty in relation to determining how to dispose of Jovan's body. I will return later in these reasons to an argument put on behalf of George as to why no detriment was suffered.
9. The second form of detriment which I am satisfied exists it that departure from the assumption will mean that Libby, or any other member of the Kovac family through her, does not have the certainty as to where Nada is to be buried which George's representation led them to believe they had. There is no evidence that Libby is the executrix of Nada's estate, so that I am unable to conclude, as a matter of law, that Libby presently has lost a right which she would otherwise have had to bury Nada in plot 34. However, in a case of this kind, it seems to me that the Court must look at the matter practically. For example, as Mr McGrath pointed out, it would be very simple, if it were not already the case, for Nada to appoint Libby her executrix. One way or another, it is clear that the entire family, led by Libby in her capacity as executrix of Jovan's estate, has acted in the expectation that Nada will be able to be buried next to Jovan in plot 34.
10. Finally, it is clear that the sixth element has been satisfied. Despite numerous requests, George has failed to transfer the plots.
11. I am therefore satisfied that George is bound by an equitable estoppel arising from his promise to transfer plot 33 and plot 34 to Libby. Equity will then grant relief, which I will discuss below, to remedy George's unconscientious failure to give effect to his promise, by requiring the plots to be transferred to Libby.

George's submissions

1. It is no criticism of Mr Hughes' industry that I do not propose to deal with all of George's extensive submissions in detail. I will, however, refer to the ones which, it seems to me, with respect, are the most essential.
2. At the forefront of Mr Hughes' attack on Libby's case was the submission that there was no evidence in chief of any conversation where Jovan said that he wanted to be buried next to his wife as well as next to his father. This was put as going both to the credibility of Libby's entire case, and also in relation to detriment. There are at least two answers to this submission.
3. First, I accept Libby and Nada's evidence that there were such conversations. It is true that evidence emerged only in evidence-in-chief given in the witness box by leave and in cross-examination. While in some cases that consideration may be sufficient to warrant the Court approaching the evidence with some suspicion, I do not think this is such a case. The focus of the case was on conversations between George, on the one hand, and Libby and other members of her family, on the other. It was not focused on anterior conversations between Jovan and his own family members. While I accept there is some force in Mr Hughes' submission that the initial evidence that they did give of conversations with Jovan was confined to his desire to be buried next to his father, I do not regard that as being a sufficient basis to disbelieve the evidence that Libby and Nada gave in the witness box. This is because it is entirely understandable that everyone was thinking about next to whom Jovan would be immediately buried (his father, Milan) rather than next to whom he might be buried later (his wife, Nada).
4. Second, even if I am wrong to accept the evidence referred to in the preceding paragraph, the absence of evidence of conversations between Jovan and family members specifying that he wished to be buried not only next to his father, but also next to his wife, does not really matter. I accept Mr McGrath's submission that it is not Jovan's expectations which equity is being asked to enforce, but rather Libby's. Looking at the matter speculatively, it would make no difference to Libby's case if it was in fact her idea - that is to say, quite independently of any wish expressed by Jovan - that, in burying her father, she also wanted to ensure that he could be buried next to her mother.
5. Mr Hughes also relied on this absence of a conversation between Jovan and any family member about being buried next to his wife on the question of detriment. His written submission was: "… the alleged detriment is that she would not have buried the deceased next to his father had she known that she would not be entitled to bury her mother next to the deceased in plot 34. Her evidence is that she would instead have buried her father in one of the plots with respect to which she had burial licences in another part of the Cemetery. She thus contends that she would have ignored her father's wishes to satisfy the wishes of herself and perhaps her mother. That is not a detriment that pertains to the estate of the deceased in circumstances where these proceedings are brought in her capacity as executor of that estate having exercised her right to dispose of the body as an incident of that office."
6. With respect, I am unable to see how this argument goes to the question of detriment or, as it was later put, in relation to causation. On the contrary, it seems to me to demonstrate both detriment and causation. Libby did what she did - that is to say, bury Jovan in plot 33 and not in one of the four plots which she owned - precisely because of the representations which the Court has found George made to her.
7. The next significant matter which Mr Hughes called in aid was that Jovan and Nada were, by common admission, separated but living under one roof. He submitted that this made it very unlikely that anyone, whether it be Jovan or any other family member, would have insisted upon Nada being buried next to Jovan.
8. In many cases, taken at face value, that submission would have great force. However, the evidence disclosed that Nada and Jovan's circumstances were more complicated. The fact that they were living under the one roof but in a separated condition was not due to the breakdown of any relationship between them. Rather, I accept the evidence that at some point during their marriage Jovan wanted to return to Serbia. This was not a course which Nada favoured. In a sense as some form of insurance, she insisted on a property settlement to ensure that she would have an interest in the family home.
9. Clearly, for a time, things were difficult between Nada and Jovan as a result of this. However, for reasons which it is unnecessary for me to set out, Jovan ultimately abandoned his desire to return to Serbia. I infer from the evidence that thereafter, while living separately under the same roof, there remained some bonds of affection and mutual support which were clearly evidenced by the way in which Jovan ultimately was cared for to the point of death in the family home. So it is that in this case the assertion of legal separation between Jovan and Nada does not falsify the proposition that, at the end of their respective lives, they would wish to be buried together.
10. The next matter to which Mr Hughes drew attention was that the affidavit evidence advanced by Libby herself and her other witnesses was not always precise as to the use of the word "plot" as opposed to "plots". It was submitted that in a case where the question of the transfer of plots was at the heart of the allegation, it was to have been expected that attention would have been given to ensuring that the singular and the plural were used consistently. Insofar as from time to time one or other of Libby's witnesses sometimes referred to a "plot" it was submitted for George that this demonstrated that there had never been any discussion of "plots".
11. There was some inconsistency from time to time in the evidence on this point. However, I do not find it persuasive for three reasons. First, evidence of the critical conversations was consistent in its use of the plural. Second, it is to be remembered in the case of Nada, that English was not her first language and that, it appears, some of these conversations were in Serbian or changed from one language to the other. I interpose by way of observation and not criticism that the evidence did not always make clear what language had been used for particular conversations. Finally, insofar as the word "plot" was used in some of the evidence, it seems to me generally consistent with the context in which it was used, namely that what was being discussed was where Jovan was to be buried. In that circumstance, the use of the singular is appropriate.
12. Finally, it was submitted that Libby's case should not be accepted in the absence of some explanation as to why George might have changed his mind. George's own evidence was that he could be somewhat volatile and was a man who bore grudges. That was demonstrated, at least in part, by the admitted period of estrangement between him and Jovan. I formed the impression, with no disrespect intended, that George was someone who could quite easily be offended.
13. The evidence offered two possible explanations as to why George might have changed his mind. One of these was the inclusion of Australian Tax Office documents in the transfer form (see paragraph [23] above). I accept that he found that confronting and it may have, at least, started some thought in his mind of not wanting to be involved in the process of the transfer. Libby took some steps to try to have this clarified by Pittwater Council in the letter which is set out in paragraph [25] above, but it was to no avail.
14. The second matter in the evidence was an occasion after Jovan's death when George was going to visit the Kovac family home, but the visit was postponed due to what was said to be Nada's indisposition. It was said that when George visited the next day he became aware that Nada, at least as far as he was concerned, had not been ill and that he had been upset or offended by this.
15. It is not necessary for me to resolve finally why George might have changed his mind. I do not accept the submission that Libby's case is inherently weakened by the fact that there is no explanation for George's change of mind. Family emotions run deep. Just as the emotion of the moment, in my view, may well have encouraged George to make the offer which I find that he did, other events and emotions in the months after Jovan's death could have created an equal and opposite reaction. I do not regard the absence of an explanation for the change of heart as being sufficient to overcome the weight of the evidence as I have found it.

Relief

1. There was no dispute between the parties that the scope of equitable relief is discretionary. Mr Hughes submitted that if, as the Court has done, it reached the conclusion that the representations to give the plots had been made and relied upon, all that should be done would be to transfer plot 33. I do not accept that submission. The Court has found that George clearly represented to Libby that he would give her both plots. It was integral to that offer and to her understanding encouraged by that representation that she was to receive both plots, one in which Jovan was to be buried and the other for Nada. In the present case it is unnecessary to be diverted into a discussion about the current jurisprudential status of the notion of a "minimum equity". In this case it is clear that the unconscientious conduct to be remedied is George's failure to transfer both plots.
2. There is no countervailing consideration in favour of George. There is no suggestion that Rebecca and her son want to be buried there (as opposed to what George says he might want for his daughter and grandson). Furthermore, George said in evidence that he was content to be buried with Milica in plot 35.

Conclusion

1. The parties will be given an opportunity to bring in short minutes to give effect to these reasons, in particular for the transfer of the Licence. Subject to hearing the parties, it is the Court's preliminary view that George should be ordered to pay Libby's costs of the proceedings. Kovac v Chanak - Schedule 1 (73.9 KB, pdf) Kovac v Chanak - Schedule 2 (73.3 KB, pdf)

Amendments 10 August 2017 - Minor spelling error 07 September 2017 - Defendant's solicitor changed on cover page 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. Decision last updated: 07 September 2017