Vosnakis v Arfaras [2015] NSWSC 625 | Case summary

Supreme Court of NSW|2014-09-29|Before: Robb J

Judgment

The plaintiff, Mr Joseph Vosnakis, is the son-in-law of the defendant, Ms Aristea Arfaras.
This dispute concerns whether Mr Vosnakis or Ms Arfaras should be entitled to exercise the right to nominate the second person who should be buried in a burial plot in Eastern Suburbs Memorial Park in which Ms Helen Vosnakis, Mr Vosnakis' wife and Ms Arfaras' daughter, was buried on 25 July 2012. The subject matter of the dispute is a burial licence that permitted two people to be buried in the one grave, which was held by Ms Arfaras at the time of her daughter's death.
Eastern Suburbs Memorial Park was formerly known as Botany Cemetery, and it will be convenient to call it by its former name. The burial plot is identified as General FM 14, Grave No 300. Ms Arfaras acquired the burial plot on 1 November 1977.
The burial plot is adjacent to another burial plot in which Ms Arfaras' mother, Ms Eleni Spyridou, is buried. This burial plot is Grave 250. The two burial plots are not side-by-side, but are, as I understand the evidence, head to head, so to speak. This other burial plot also allowed for the burial of two persons. Ms Arfaras' father, George, was also deceased at the date of her daughter's death, but he had been cremated. The significance of that circumstance is that, at that date, one more person could, in due course, be buried in the adjoining burial plot. The right to nominate the second person to be buried in the adjoining burial plot remained in the name of Ms Spyridou, and so was an asset of her estate. Probate of Ms Spyridou's will had not been obtained by Ms Arfaras, who was apparently named as executor. The right to nominate the second person to be buried in the adjoining burial plot could only be exercised by the executor of Ms Spyridou's estate, after probate was granted.

The burial licence

The burial licence had been granted by the trustees of the Botany Cemetery under a certificate, which was in the following terms: BOTANY CEMETERY BOTANY PRE-PURCHASE No 46037 This is to Certify that Mrs RITSA ARFARAS of 160 Eastern Avenue Kingsford, has paid to the Trustees of the Botany Cemetery GEN Portion, the sum of $160-00, and in consideration of such payment the said Trustees do hereby grant to the said RITSA ARFARAS the exclusive right of burial in Portion No. 300, Section 14 THREE feet by EIGHT feet, in the said Burial Ground, subject to the conditions prescribed in the Rules and Regulations for the time being in force relating to the said Burial Ground. Dated this 1st day of November, 1977 L. A. Babcock Secretary.
Ritsa Arfaras was a name used by Ms Arfaras. Although it does not expressly say so, it was common ground between the parties that the burial licence permitted the bodies of two persons to be buried in the burial plot.
At the foot of the certificate, provision was made in blank for a transfer to be completed and signed by the holder of the burial licence.
It must be noted that the certificate for the burial licence expressly provides that the exclusive right of burial is subject to the conditions prescribed in the Rules and Regulations for the time being.

The evidence

The facts relevant to the resolution of this dispute are not complex, and it will be convenient to determine them at the outset. They primarily concern a number of conversations that occurred during the period 19 to 24 July 2012, at the former matrimonial home of Mr Vosnakis and his wife at 140 Eastern Avenue, Kingsford, at which, in accordance with Greek tradition, Mr Vosnakis opened his house for friends and relatives of his deceased wife to visit to pay their respects.
Three witnesses gave evidence in Mr Vosnakis' case concerning the relevant conversations; Mr Vosnakis himself, his daughter Ms Aristea Friedrich, and his sister, Ms Vicky Madden.
Mr Vosnakis swore that on the date of his wife's death he had a conversation with Ms Arfaras, after he had arranged for a representative of Acropolis Funerals to come to his house to discuss the arrangements for his wife's funeral. Mr Vosnakis said that the conversation was as follows: I said: I have arranged for Acropolis Funerals to come to my place to discuss the arrangements for Helen's funeral. Would you like to be there? She said: Yes, I will be there. Where are you going to bury Helen? I said: I don't know, I haven't thought about it. She said: I have two plots at Botany Cemetery. I don't need both. I decided that I want you to have one. I won't take no for an answer. You can bury Helen in it and then you can go with her. I said: Alright. Thank you.
The next day, 20 July 2012, Ms Georgia Paschalidis, the representative of Acropolis Funerals, attended Mr Vosnakis' home. Ms Arfaras was also present. Mr Vosnakis swore that, after Ms Paschalidis asked him whether he had organised the plot in which to bury his wife, Ms Arfaras said, before Mr Vosnakis could reply: I have two plots at Botany Cemetery. One has my mother in it. I will go with her because we cremated George and I will give Joe the other one. Joe and Helen can go in that one together.
Ms Paschalidis then telephoned Botany Cemetery in order to confirm the entitlement to the two burial plots. It was discovered that the second burial plot was in Ms Spyridou's name and the conversation continued: She said: I'll go in the one with my mother and Helen can be buried in the other one and I will transfer it to Joe so he can be buried with Helen. I said: Thank you.
After Ms Paschalidis left the home, Mr Vosnakis said that he walked with Ms Arfaras to her house, which was down the street. They searched through Ms Arfaras' records and found the document that evidenced Ms Arfaras' title to the burial licence, the subject of the present dispute. They also found the documentation that related to the second plot in which Ms Spyridou was buried. Ms Arfaras gave Mr Vosnakis the original document of title to the burial licence in dispute, together with the will of Ms Spyridou and other documents necessary to make an application for probate of Ms Spyridou's will. Mr Vosnakis' evidence was that he agreed to make the arrangements necessary for probate of Ms Spyridou's will to be granted to Ms Arfaras, so that the right to nominate the second person to be buried in the same burial plot as Ms Spyridou could be exercised on behalf of Ms Arfaras to ensure that she was buried in that burial plot.
Mr Vosnakis swore that he would not have buried his wife in the burial plot, had it not been for the conversations with Ms Arfaras in which she told him that she would transfer the burial plot to him, so that he could make arrangements to be buried in the same burial plot as his wife.
Ms Friedrich was admitted to practice as a solicitor shortly after the events that have given rise to this dispute. On 20 July 2012, Ms Friedrich was present at Mr Vosnakis' home when a conversation occurred between her and her father, at a time when Ms Arfaras was sitting across the table from Ms Friedrich. Ms Friedrich swore that the conversation was as follows: I said: Why is she here? I do not think that it is appropriate that she is here at this appointment. He said: She is giving me one of the graves to bury Helen in. I said: What do you mean giving? He said: She is going to transfer a grave to me. I will own the grave. It will become my grave and Helen and I will be buried together when I pass away.
Ms Friedrich said that Ms Arfaras did not say anything during this exchange. Ms Arfaras did not contradict what Mr Vosnakis said.
Ms Friedrich also said that she was present when the conversation occurred involving Ms Paschalidis. Ms Friedrich confirmed the evidence given by her father concerning the enquiry that was made of Botany Cemetery that led to the discovery that one of the two burial plots remained in the name of Ms Spyridou, and needed to be transferred into the name of Ms Arfaras. Mr Vosnakis agreed to implement the necessary steps after the burial of his wife. She said that during this conversation her grandmother said: Yes. We need to arrange that as soon as possible. I am going to transfer the grave that Helen is to be buried in to you so that you, as a married couple, can be buried together and I want to be buried with my mother.
Ms Madden gave evidence that she was present at Mr Vosnakis' home each day between 20 and 24 July 2012 to assist in receiving visitors who were conveying their sympathy and condolences. During this period Ms Madden had a conversation with Ms Arfaras in the following terms: She said: The only way I can help Joe, following Helen's death, is to give him the burial plot in which we are burying Helen. I have two plots and since we cremated George I do not need the second plot so I have given it to Joe. Helen can go in now and later Joe can be buried there to be with his wife. I will be buried with my mother just next to them. I said: That will help because Joe is a mess right now and that is one less thing he needs to sort out.
Ms Madden also swore that on three or four separate occasions she heard Ms Arfaras say to people present at Mr Vosnakis' home words to the effect: I can't help Joe in any other way than to give him the grave.
Ms Paschalidis gave evidence that confirmed the formal and practical steps that she took in making the arrangements for the funeral and burial of Ms Vosnakis. Understandably, given the 250 or so funeral arrangements she made each year, Ms Paschalidis was unable to remember the substance of the conversations that she witnessed at Mr Vosnakis' home.
Ms Arfaras was the only witness who gave evidence concerning the conversations upon which Mr Vosnakis' claim in the present proceedings is based. Ms Arfaras was 78 years of age at the time of the hearing. She was born in Greece and her command of the English language is poor. Her mother tongue is Greek, and she converses with her children and friends mainly in Greek. Ms Arfaras said that any conversations in which she participated following the death of her daughter took place in the Greek language. The affidavits were written in English, without any formal indication that they had been translated for her before she swore them by a competent Greek interpreter. Eventually this shortcoming was corrected, and I accept that in fact the affidavits of Mr Vosnakis and Ms Madden, to which she responded, were interpreted for her by her daughter, Ms Maria Katralis. She also swore that the affidavit of Ms Friedrich was translated for her by her solicitor.
Ms Arfaras denied that the relevant conversations as sworn to by Mr Vosnakis, Ms Madden and her granddaughter, Ms Friedrich, occurred. She said that her husband of over 50 years had died shortly before the death of her daughter, and that Ms Vosnakis' passing left her extremely distraught and depressed for several months. Ms Arfaras recalled saying to Mr Vosnakis that he was welcome to bury her daughter in the burial plot. She swore that she did not at any stage say that she would give Mr Vosnakis the legal title to the plot. She said that she communicated to Mr Vosnakis shortly after the death of her daughter: I have a burial plot and you are most welcome to put Helen in my grave.
Ms Maria Katralis, another daughter of Ms Arfaras, gave evidence that she was present at Mr Vosnakis' home every day during the period 20 to 24 July 2012, from about 10 AM each morning to midnight each night. She said she observed that Ms Madden was present every day between about 12 midday and 3 PM. Ms Katralis said that she did not at any time hear her mother say the words ascribed to her by Ms Madden, but she was present on several occasions when Ms Arfaras said to relatives: I opened my grave to bury my child.
Each of Mr Vosnakis, Ms Friedrich and Ms Madden was cross-examined for Ms Arfaras at the hearing. Each was a credible and persuasive witness. I accept their evidence. Their evidence was not in any way shaken.
Unfortunately, Ms Arfaras' evidence in cross-examination was not given in a rational, coherent or credible manner. She frequently did not give responsive answers. She appeared to have difficulty recalling many events, in response to questions put to her. She was obviously emotional and upset, which with due respect is not surprising given her age, and the subject matter of the dispute. I do not think that it will be necessary or helpful to analyse Ms Arfaras' evidence in cross-examination in any detail.
I accept that, at the time the relevant conversations occurred, Ms Arfaras was extremely emotional and distraught. For obvious reasons Mr Vosnakis was also in the same emotional state.
I do not accept that the evidence given by Ms Katralis contradicts the evidence given by Mr Vosnakis and his witnesses in any way that should cause me not to accept their evidence. Ms Katralis did not claim to have been present during every conversation that Ms Arfaras had with persons who attended Mr Vosnakis' home to express their condolences. Even if Ms Arfaras did say on a number of occasions: "I opened my grave to bury my child", that does not mean that she did not make the more elaborate statements of which Mr Vosnakis and his witnesses gave evidence.
Mr Vosnakis gave evidence that, at Easter 2013, he had a conversation with Ms Katralis in which he informed her that his lawyer was doing the paperwork so that Ms Spyridou's burial licence could be transferred to Ms Arfaras. Ms Katralis informed him that Ms Arfaras only gave the grave so that Ms Vosnakis could be buried in it, and that Ms Arfaras still wanted it. That, according to Mr Vosnakis, was the first time that he learnt that Ms Arfaras may not be prepared to transfer the burial licence to him.
Mr Vosnakis also gave evidence that, on about 14 June 2013, he handed to Ms Katralis the documentation prepared by his solicitor for a probate application in relation to the estate of Ms Spyridou, and advised her that Ms Arfaras needed to sign the documents so that her mother's burial plot could be transferred to her. He also said that he handed to Ms Katralis the original document which comprised exhibit A. That exhibit consists of a draft affidavit prepared by Mr Vosnakis' solicitor for the purpose of the commencement by Ms Arfaras of proceedings in this Court to obtain a grant of probate of the will of Ms Spyridou. Paragraph 16 of the draft affidavit referred to the annexation of a copy of the certificate issued by Botany Cemetery to Ms Spyridou in respect of the exclusive right of burial in Portion No 250, and continued: … I did not know that I was required to obtain a Grant of Probate to deal with this asset until after the death of my daughter in 2012. Upon the death of my daughter I endeavoured to have the plot transferred to me without obtaining Probate however I have been advised by Botany Cemetery that the plot cannot be transferred to me without a Grant of Probate.
Mr Vosnakis said that he asked Ms Katralis to have her mother sign the document, to enable the burial plot where his wife was buried to be transferred to him. Mr Vosnakis offered to arrange for his solicitor to attend upon Ms Arfaras in order to witness her execution of the document. Ms Katralis responded that Mr Vosnakis should know that her mother would not sign the document.
Ms Katralis gave evidence in which she denied that she had the conversation at Easter 2013, as claimed by Mr Vosnakis. She gave a different version of the conversation that occurred on about 14 June 2013 to that given by Mr Vosnakis. However, Ms Katralis accepted that Mr Vosnakis said to her: Wait a minute I'll just get the paperwork for grandma's probate. And after Mr Vosnakis returned and handed her an envelope, he said: These are the papers for mum to sign. My solicitor can come to her house for her to sign. She said that she did not read the documents in the envelope at the time, and later gave them to Ms Arfaras' solicitor. Neither Ms Katralis nor the solicitor gave evidence that contradicted Mr Vosnakis' claim that he gave to Ms Katralis documents prepared by his solicitor to enable a grant of probate of Ms Spyridou's estate to be obtained, and the burial licence transferred to his name.
Ms Katralis gave evidence that she informed Mr Vosnakis that Ms Vosnakis was buried in her mother's plot, and her mother would be buried in that plot as well. Ms Vosnakis would have been buried in Ms Spyridou's grave had it been available.
Ms Katralis' evidence that Mr Vosnakis gave the documents contained in the envelope to her provides some corroboration of Mr Vosnakis' evidence that he caused his solicitor to prepare the documents necessary to obtain a grant of probate of Ms Spyridou's estate by Ms Arfaras. That, in turn, provides some corroboration for the version of the conversations between Mr Vosnakis and Ms Arfaras in the days following Ms Vosnakis' death, in the terms deposed to by Mr Vosnakis and his witnesses. On the evidence, the only reason why Ms Arfaras would have wanted to obtain a grant of probate of her mother's will was to obtain the means to cause the second burial plot to be transferred into her name. Ms Arfaras did not suggest any other reason why, at that stage, she would have wanted to obtain a grant of probate of her mother's will. Further, no reason was suggested as to why Mr Vosnakis would have agreed, at his own expense, to arrange for his solicitor to act on the application for the grant of probate, other than that it was part of an arrangement entered into by Mr Vosnakis with Ms Arfaras whereby he would assist Ms Arfaras to obtain title to the other burial plot, so that she could be buried with her mother.
Ms Friedrich and her younger brother, Mr Constantinos Vosnakis, each gave evidence that in, about June or July 2013, they attended Ms Arfaras' home together in order to attempt to resolve the issue of the ownership of the burial licence for the burial plot in which their mother was buried. It is not necessary to relate their evidence in detail. Ms Friedrich said that her grandmother initially denied that she had promised to transfer the burial licence to Mr Vosnakis, but, when pressed, she admitted that she had made the promise, but she had changed her mind. Ms Arfaras gave a reason for her decision. The younger Mr Vosnakis confirmed that his grandmother gave that reason. Ms Arfaras has not pleaded the reason that she gave to her grandchildren as a justification for not transferring the burial licence to Mr Vosnakis. There was no evidence to support the reason. Such evidence, as there is on the subject, suggests that Ms Arfaras' position was neither rational nor justified. It appears to be a rationalisation for her change of mind. As the reason given by Ms Arfaras would have been discreditable to Mr Vosnakis, if it had been true, it is neither necessary nor appropriate in the circumstances that the Court describe the reason in this judgment.
Mr Vosnakis engaged in correspondence with Ms Katralis and Ms Arfaras' solicitor in relation to a number of subjects, beginning on 1 July 2013. Most of the correspondence was marked 'without prejudice', although it was tendered into evidence by Mr Vosnakis.
First, on 1 July 2013, Mr Vosnakis sent an email to Ms Katralis in which he asked whether Ms Arfaras was still interested in proceeding with the application for probate of her mother's estate. He then said: Finally I have requested that you confirm whether Mrs Arfaras will transfer the grave in which Helen is buried to me in accordance with her promises prior to burial that she will give that plot to Helen and myself. If Mrs Arfaras has changed her mind and no longer wishes to gift it to me I am prepared to purchase it from her at a reasonable price. If she is not prepared to gift it or sell it to me I will as previously advised take whatever action is necessary to exhume Helen's remains and deal with them as we - our family - deems appropriate. Please note this is the final time I will write to you about Helen's grave and I urge you to do all you can do to assist me resolve this issue without the need to take any further action.
Mr Vosnakis wrote a further email to Ms Katralis on 2 July 2013. Among other things he confirmed that he had passed on the application for probate of the will of Ms Arfaras' mother, and that the application had been given to a solicitor to be finalised. Mr Vosnakis asked to be told what was happening with the documents because his solicitor needed to know whether he would be completing the application, or alternatively whether he should render an account.
Mr Vosnakis then said: 4. In relation to Helen's grave as I have indicated I am prepared to purchase it and my offer is $22,000 being the present costs to purchase a grave for 2 people and have both buried in the plot. This offer is open for acceptance up to 5 PM on Monday, 15 July 2013. Regretfully I note that I have previously indicated to you the consequences of a court case in this regard.
Ms Arfaras' solicitor wrote to Mr Vosnakis on 8 July 2013 to advise him that Ms Arfaras no longer wished to have any direct contact with him, and asked that all communications be directed to the solicitor.
Mr Vosnakis responded to the solicitor on 9 July 2013. Relevantly, Mr Vosnakis said: I have made a number of without prejudice offers to Mrs Arfaras via Mrs Katralis in effect to purchase the grave site where my late wife now lays but not had the courtesy of a response. I now repeat my offer to pay Mrs Arfaras the sum of $30,000 ($22,000 for the grave plot and $8000 repaying her the funeral expenses she paid) in return for her transferring to me ownership of the grave site where my wife is buried. Please note that we (the Vosnakis Family) only want ownership of Helen's grave and your client can get on with her life and her business and we can do the same and we never need see each other or speak to each other - if that is what your client wants. I do not want to embark on years of litigation with Mrs Arfaras but if she keeps on frustrating our family's attempts to be responsible for Helen's remains and Helen's grave then I will be left with no other option.
On 11 July 2013 Mr Vosnakis made an offer to Ms Arfaras' solicitor to enter into mediation of the dispute.
Mr Vosnakis's solicitor wrote a letter to Ms Arfaras on 21 August 2013 in which, among other things, he demanded that Ms Arfaras transfer the burial plot to Mr Vosnakis, failing which proceedings would be commenced.
Ms Arfaras' solicitor responded on 17 September 2013 by denying that Ms Arfaras had any liability to transfer the burial plot to Mr Vosnakis.
Ms Arfaras made a submission that the offers made by Mr Vosnakis in his emails of 1, 2 and 9 July 2013, to pay Ms Arfaras for the transfer of the burial licence if she had changed her mind and no longer wished to give the burial licence to Mr Vosnakis, was inconsistent with his case that Ms Arfaras was already legally bound to transfer the licence to him. I do not accept that that submission correctly describes the effect of Mr Vosnakis' offer, if the whole of the context of the emails is given proper weight. The offers were made in the context of Mr Vosnakis' explicit reliance upon the promises made to him, and in circumstances where Mr Vosnakis warned Ms Arfaras of "the consequences of a court case", if the issue was not resolved to Mr Vosnakis' satisfaction. The statements which Mr Vosnakis made in the emails were consistent with his maintaining a claim that he had a right to a transfer of the burial licence, and were not admissions that he did not have that right. The proper way to view Mr Vosnakis' offer, to pay what he suggested was the then current price for obtaining the burial licence, was as a sensible attempt by Mr Vosnakis to try to avoid litigation by offering a compromise that involved his paying for the burial licence notwithstanding that Ms Arfaras had agreed to give it to him.
Ms Arfaras also relied in her submissions upon the warning given by McClelland CJ in Eq in Watson v Foxman (1995) 49 NSWLR 315 at 319, in relation to evidence given by witnesses about conversations: Furthermore, human memory of what was said in aconversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter ofordinary human experience.
While I am an adherent of the wisdom of that warning, it does not provide significant guidance in the present case. First, the elements of the arrangement that Mr Vosnakis claims he made with Ms Arfaras were simple, straightforward and not subtle or complex. Secondly, there is convincing corroboration of Mr Vosnakis' version of the conversations. Finally, there was a significant amount of objective conduct that followed the making of the arrangement that was strongly consistent with it having been made as alleged by Mr Vosnakis.

Finding

I find the relevant facts to be that on 19 and 20 July 2012 Mr Vosnakis and Ms Arfaras agreed to the following arrangement. At this stage I use the term "arrangement" so as not to prejudge the dispute between the parties as to whether they entered into a legally binding contract. Ms Arfaras offered, and probably insisted, that Mr Vosnakis arrange for his wife to be buried in the burial plot, and that Ms Arfaras would transfer title to the burial licence to Mr Vosnakis, so that in due course he could be buried together with his wife. Ms Arfaras did not require any payment. When it was discovered that Ms Arfaras would not be able to exercise the burial licence in relation to the adjacent burial plot in which her mother was buried, Mr Vosnakis agreed at his own expense to cause his solicitor to act for Ms Arfaras in relation to all of the steps necessary to enable her to obtain a grant of probate in relation to her mother's estate. Ms Arfaras gave the certificate for the burial plot in which her daughter was to be buried to Mr Vosnakis, but she did not, at that time, fill out or sign the transfer that is printed in blank at the bottom of the certificate.
The question is whether the making of this arrangement, or the subsequent step taken by Mr Vosnakis in causing his wife to be buried in the burial plot, gave him a right to require Ms Arfaras to transfer title to the burial plot to him.

The pleadings

By his original statement of claim Mr Vosnakis alleged that, on 20 July 2013, Ms Arfaras agreed to transfer the burial licence and all of her rights in the burial licence to Mr Vosnakis ,and Mr Vosnakis agreed to bury his wife's body in the burial plot. Ms Arfaras, in submissions, commented on the fact that Mr Vosnakis only alleged that the contract was made on 20 July 2013, notwithstanding that he gave evidence of a conversation that took place on the previous day, that was also capable of giving rise to the contract that he sought to enforce. I think that this quirk in the pleading is not material. First, the better view is that the reference in par 5 of the statement of claim to the agreement being made "on 20 July 2013" would, in the circumstances, conventionally be understood to mean "on or about 20 July 2013". Secondly, the parties fought the issue as if the conversation on 19 July 2013 was equally relevant to whether an enforceable contract was made, as the conversation that took place on the following day. Finally, in any event, the conversation that took place on 20 July 2013 was as capable, in isolation, as the conversation on the previous day, of creating the contract alleged, assuming that the requisite intention to create legal relations was present.
Alternatively, Mr Vosnakis claimed that Ms Arfaras was estopped from denying that there was a binding and enforceable agreement between the two parties in respect of the transfer of the title to the burial licence.
Mr Vosnakis sought an order for specific performance of the agreement.
By her defence, Ms Arfaras denied that she had made the contract alleged by Mr Vosnakis, or that she was estopped from denying the existence of that contract.
Ms Arfaras also pleaded the following grounds as to why she was not obliged to transfer the burial licence to Mr Vosnakis: first, she relied upon ss 23C and 54A of the Conveyancing Act 1919 (NSW) to claim that the agreement alleged would have been ineffective in so far as it constituted a disposition or agreement to dispose of an interest in land; secondly, Mr Vosnakis did not provide any consideration to support the alleged promise; thirdly, Mr Vosnakis did not suffer any relevant detriment from the burial of his wife in a burial plot for, which Ms Arfaras was financially responsible; and fourthly, Mr Vosnakis has actually enjoyed the financial benefit of avoiding the cost and expense of burying his wife in the burial plot.
Mr Vosnakis did not file a reply. However, in his outline of submissions served before the commencement of the hearing, he relied upon the doctrine of part performance to defeat Ms Arfaras' reliance upon s 23C and 54A of the Conveyancing Act. The act of part performance relied upon was Mr Vosnakis exercising his right to determine where his wife should be buried by choosing the burial plot.
By notice of motion filed in Court on 29 October 2014, after the completion of the hearing, Mr Vosnakis sought leave to file a further amended statement of claim. Ms Arfaras initially contested Mr Vosnakis' right to amend his pleading, but when, on 11 November 2014, Mr Vosnakis' notice of motion came on for hearing, Ms Arfaras did not oppose the Court granting leave to Mr Vosnakis to file his further amended statement of claim.
Neither party sought to rely upon any additional evidence in relation to the new claims introduced by the further amended statement of claim (although Mr Vosnakis had earlier been given leave, after the conclusion of the hearing, to tender into evidence a Policy Directive issued by the NSW Ministry of Health concerning the "Exhumation of Human Remains").
The first claim added by Mr Vosnakis was a claim that, from 25 July 2012 (the date when his wife was buried in the burial plot), he became the holder of the rights constituting the burial plot. As will be seen, this claim was based upon the legal consequences of a body being buried in a burial plot at the direction of the person with the right to determine the manner of burial of the deceased, with the consent of the cemetery authority (and in this case also the person who is the holder of the burial licence).
Next, Mr Vosnakis added a claim for a declaration that Ms Arfaras is estopped from denying that Mr Vosnakis is entitled to the burial licence for the burial plot. Mr Vosnakis' original estoppel claim was formulated as a claim for a declaration that Ms Arfaras was estopped from denying the existence of the contract, which was the subject of the first claim made by Mr Vosnakis. The new estoppel claim reformulates that claim in a more direct way.
The last new substantive claim added by Mr Vosnakis was a claim for a declaration that Ms Arfaras holds the burial licence on trust for Mr Vosnakis.
Mr Vosnakis also added a number of claims for consequential orders to effectuate the substantive relief that he may be granted by the Court. Those claims will only become relevant if Mr Vosnakis succeeds in obtaining substantive relief.

Effect of the authorities

The parties addressed the authorities that have considered the law concerning the grant and effect of exclusive licences for burial, as well as the consequences of the bodies of deceased persons being buried in the subject burial plots. They also made submissions on the statutory and regulatory provisions that govern the granting of burial licences, and the control and management of cemeteries, as well as the rules that govern what was previously known as Botany Cemetery. The legal effect of the arrangement that I have found was entered into on 19 and 20 July 2012, and the effect of the burial in the grave plot of Mr Vosnakis' wife, can only be determined having regard to the effect of the authorities, the statutory provisions, and the rules. It will be convenient to deal with the authorities first.
The law concerning the nature of the rights established by the grant by a cemetery authority of a burial licence in respect of an identified grave plot has been considered in Australia in a number of cases, primarily decided by Young J (as his Honour then was). The principles of law have not yet clearly been developed. His Honour, in practical terms, initiated the theoretical consideration of this question in an article entitled "The Exclusive Right to Burial" published in 39 ALJ 50. I am indebted to his Honour's scholarship, and will not attempt to replicate it in these reasons. It is important to understand that Young J acknowledged that there is significant uncertainty in relation to the legal rules that may apply, as well as the rationale for their existence. There are many reasons for this uncertainty. One is the relative dearth of the authority. Another is that Australia (as well as the United States) did not establish a system of Ecclesiastical Courts, which in England supervised the burial of bodies, at least in churchyards. Strangely, the relative availability of land for cemeteries as between England (where land is generally limited) and Australia and the United States (where land is generally more readily available) may influence the question, which is not presently settled in Australia, of whether the rule that requires a buried body to remain undisturbed (subject only to statutory provisions that permit exhumation) operates perpetually, or only for a time that is sufficient to permit the natural dissolution of the body. There is also the consideration that, with the passage of time, statutory regulation of cemeteries has become more general and consistent. All of these considerations suggest that wisdom will lie in the Court only deciding the issues that require decision.
A number of contentious issues arise in relation to the resolution of the present dispute. The first concerns the legal relationship between what has been called the right of burial (in the sense of the right to decide how and where the body of a deceased person will be buried), and the right to inter a body in a particular grave site that may be granted by a cemetery authority. As will be seen, it is the person chosen by the deceased as his or her executor, or alternatively the person with the strongest right to apply for letters of administration, who generally has the exclusive right to decide how and where the body will be buried. This rule is but one aspect of the obvious practical requirement that, when a person dies, the law must assign to some living person the right and responsibility to dispose appropriately with the person's body. The right relates to the body of the deceased, and its subject matter is the manner of disposal of the body. Coexisting with the exclusive right of burial is the right that may be created by agreement between any person and the authority that administers a cemetery to designate a particular burial plot in the cemetery as being available for use as the burial place of any person nominated by the person who acquires the right. This right, which has variously been called an "exclusive right of burial", a "burial licence" and an "interment right" is concerned with a burial plot, and not directly with the body of any deceased person.
As in the present case, different persons may be entitled to the exclusive right of burial in the strict sense, and the burial licence in respect of the burial plot in which a deceased person is buried. The question which must be resolved is, what are the respective rights of different persons, who were entitled to the exclusive right of burial, and the burial licence, in a case where the person entitled to the former agrees to bury a body with the consent of the latter in a burial plot the subject of that latter's burial licence?
A further question which requires resolution arises out of the fact that the burial licence at issue entitles the holder to nominate two bodies to be buried in the one burial plot, and that entitlement has been exercised in relation to one body, by arrangement between the person with the exclusive right of burial and the holder of the burial licence. That gives rise to separate questions, as to who has the right to preserve the entitlement of the person who has been buried to rest in peace and to maintain the grave, and who has the right to nominate the second person to be buried in the burial plot.
I would hesitate to be definitive, given the limited state of the guidance available in the authorities, but it would appear that the common practice of issuing burial licences that allow for multiple burials in the one burial plot is an aspect of modernity that derives from the statutory regulation of cemeteries. In his article, Young J considered at length the question, which his Honour at 53 extracted from the judgment of Sir William Scott, sitting in the Consistory Court of London, in Gilbert v Buzzard (1820) 3 PhPhillim 335; 161 ER 1342 at 1349 (known as the Iron Coffin Case) … Accordingly it has been argued that the ground once given to the interment of a body is appropriated for ever to that body; that it is not only the domus ultima, but the domus aeterna of that tenant, who is never to be disturbed, be the condition of that tenant himself what it may. It is his for ever, and the insertion of any other body into that space at any other time, however distant, is an unwarrantable intrusion.
It is not necessary to consider in detail, or to resolve, the different solutions to this question that have apparently been adopted in England and the United States. In the former, the Iron Coffin Case may have decided that shortage of space for the provision of cemeteries may require the result that burial plots may be reused after a time that is adequate to allow for the natural dissolution of the body (so that burial places may be used by generation after generation), while United States law apparently rejects that position. As Young J observed at 54: The question is almost unanswerable because there are no binding authorities on the point, but it is quite conceivable that the American view may be followed in the unlikely event of the point ever arising for decision.
The relevant point for present purposes is that it seems clear that neither view contemplated that the problem would be resolved by burying multiple bodies in the one burial plot, at times before earlier buried bodies could dissolve in the normal course.
That may have the result that any hope that the question of who has the right to nominate the second body to be buried in the burial plot in the present case (as opposed to the consequences of some arrangement between the parties, or the operation of some statutory provision) by looking to established legal principle may be forlorn.
There are a number of conclusions reached by Young J in his article that require notice, as they were not repeated, or repeated in the same detail, in his Honour's later judgments.
His Honour concluded at 50, that a burial licence "was in the nature of an irrevocable licence, but this licence was assignable". He said at 52: Thus it seems as though the right should be regarded not as an interest in land or an easement but as a licence. It is submitted that such licence is an irrevocable assignable licence. It is well accepted that to be irrevocable a licence must be coupled with an interest.
In relation to his Honour's observation that, to be irrevocable, a licence must be coupled with an interest, he referred to the decision of the High Court in Cowell v Rosehill Racecourse (1937) 56 CLR 605 at 615. The point is that, if a licence is only enforceable as a matter of contract, then it can be revoked by the grantor, even though the revocation may be a breach of the contract, and give rise to contractual remedies. For the licence to be effectively irrevocable as a matter of law, it must be a licence coupled with a grant of an interest in land. Young J did not explore the nature of the interest in land that was granted as a result of a body being buried in a burial plot the subject of a burial licence.
I observe, without any disrespect, that care must be taken in considering the article to distinguish when Young J is talking about the right of burial in the sense that I have considered above, and a burial licence. At different times his Honour appears to deal with the legal principles that govern each of the different rights. At 54 his Honour examined "the incidental rights attached to the exclusive right to bury". Consideration of those rights shows that his Honour used the expression to refer to a burial licence (for instance, the first right identified was the right to permit the interment in the grave of whomsoever the owner of the exclusive right to bury may deem proper). The third right identified by Young J was: 3. The exclusive right to bury may be transferred subject to the rules of the cemetery. However once an interment has been made the owner can neither sell nor mortgage it.
This rule (which his Honour derived from American law) seems to assume that only one body will be buried in a particular burial plot. If this rule were to be applied literally in the present case, Mr Vosnakis would necessarily fail in his contract and estoppel cases, as they require a transfer of the balance of the rights conferred by the burial licence.
Young J made the following observations concerning the issue of whether "the courts will protect the right of burial". As I understand it, his Honour is referring to the right of burial in the strict sense, as he is concerned with the right to protect the entitlement of the deceased to lie undisturbed. He said at 55: It seems, however, that the courts will protect the right of burial. In Donaghy v Carrol (1910) 11 SR (NSW) 9 the New South Wales Equity Court granted an injunction against a Bishop who had intended to disinter and reinter in another cemetery the remains of the plaintiff's father. The plaintiff was also the father's executor. And at 56: It seems that in this country, if there is to be a champion of the deceased's mourners, it will be the Equity Court or a court administering equitable principles. The only two effective decisions have been by such courts. In Australia Donaghy v Carroll may be a basis for equitable relief against disinterment of bodies and desecration of graves. The problem does not arise very often and when disinterment is necessary in the public interest, special legislation is almost always passed.
These observations may be important to the resolution of the present case, particularly with regard to Mr Vosnakis' estoppel claim. It may be important that the right of burial is one that will be protected by orders made by the Court.
Young J clearly recognised, at 56 and 57, that the general law principles that govern burial licences, and their interaction with the right of burial, may be affected by the introduction of statutory regulation of the operation of cemeteries. A question will arise in this case concerning the interaction of such general law rules as may apply, and the statutes and regulations that have governed the operation of the Botany Cemetery from time to time.
I will now turn to a consideration of the relevant Australian authorities, in so far as they appear to be relevant to the resolution of the present dispute.
The burial plot with which Young J was concerned in Beard v Baulkham Hills Shire Council (1986) 7 NSWLR 273 was owned by a Mrs Sherwood, who died leaving a will under which she left the whole of her estate to one of her children, a son named Ralph. Ralph married the second defendant. The first defendant was the Council. Mrs Sherwood had purchased the grave plot in question from the Council. The plaintiff was the husband of one of the daughters of Mrs Sherwood. On the death of the daughter, the plaintiff arranged with the Council for her to be buried in the grave plot, on the assumption that Mrs Sherwood had purchased the grave plot from the Council for that purpose. Young J found that, while it was probably Mrs Sherwood's intention that the grave plot be used for that purpose, there was insufficient evidence to conclude that Mrs Sherwood had given the grave plot to her daughter, or declared herself as trustee of the grave plot for her daughter. The plaintiff's claim that the grave plot was held on trust by Mrs Sherwood's estate for his wife, or alternatively that it was owned by the wife outright as a gift from her mother, failed for want of evidence.
Upon his death Ralph devised all of his estate to his wife, the second defendant. That estate included the right to the grave plot, which Ralph had inherited from Mrs Sherwood. The second defendant filed a cross claim against the Council, in which she sought a declaration that she was the legal and beneficial owner of the grave plot, and a mandamus to the Council to amend its register of gravesites by entering her name in the register, and a mandatory injunction to disinter the remains of the plaintiff's wife, and finally exemplary damages and interest. Consequently, the consideration that Young J gave to the legal nature of the burial licence arose in the context of the cross claim.
As his Honour noted at 277, the control and management of the relevant cemetery was vested by statute in the Council, in lieu of the Church of England, which had previously exercised that control and management. Under the statute, the Council was deemed to have been the contracting party in respect of contracts, agreements and undertakings entered into with the former trustees of the cemetery in connection with the care, control and management of the cemetery. Therefore, the case was not one in which there had been a grant of burial licence under Ordinance 68, r 19, (which was the provision that applied in respect of cemeteries governed by statute) where there is a statutory interest in the cemetery given, then known as a "right of burial". The case therefore depended upon the contract, agreement or undertaking that was entered into by the former trustees of the cemetery, which was by virtue of the statute deemed to be made with the Council.
There was no evidence as to who the trustees were at the time the right was granted to Mrs Sherwood, nor was there evidence of the rules governing the operation of the cemetery. Young J found on the available evidence that the right which Mrs Sherwood had was aright popularly called an exclusive right to burial (equivalent to what I have called, for the purpose if these reasons, a burial licence). His Honour found, based upon the article that he had written earlier in the Australian Law Journal: … I reached the conclusion in the article that the right was a right in contract and not a proprietary right analogous to an easement and that probably the owner of an exclusive right to bury might permit the interment in the grave site of whomsoever he may deem proper… I also reached the view that once an interment took place in a grave site with the permission of the cemetery authority then there was an irrevocable licence, so far as that body was concerned, for it to remain, at least until the natural process of dissolution.
Young J therefore held (at 279) that "whatever the relevant right was, it could not have been more than a contractual right", which had been repudiated by the Council when it permitted the plaintiff's wife to be buried in the grave plot without the consent of the second defendant. Even though the second defendant had not accepted the repudiation as bringing the contract to an end, she had difficulty in enforcing the contract because: … she has a great difficulty of overcoming the general rule of cemeteries (subject to any rules and regulations to the contrary) that once buried with the consent of the cemetery authority a body is not to be disturbed…
His Honour explained that observation at 280 in the following terms: The law…[is] once the body is, with the consent of the cemetery authorities, buried, that is the last and perhaps eternal resting place of that body and the body has appropriated that part of the soil for its own use. Once that has happened then even though the burying of the body in the grave was a breach of contract between the cemetery authority and the person who had the exclusive right to burial the court will not in New South Wales, as I understand the law, order its disinterment. There is another reason why the court would be reluctant to order disinterment because, as I understand it, until a body has been buried for seven years that health authorities will not give a permit to disinterment… I know of no power in this Court to order disinterment otherwise or, indeed, to order disinterment contrary to the requirement of the health authorities.
As I have noted, this case did not concern the rights attached to a statutory burial licence, but depended upon the terms of the contract between the cemetery authority and the holder of the burial licence. The contract did not create an interest in land. It was an incident of the contract that the owner of the burial licence could nominate any person to be buried in the grave plot. However, once the body of a person was buried in the grave plot with the consent of the cemetery authority, the Court would not make an order that required disinterment, and an irrevocable licence arose for the body to remain in the plot, at least until the natural process of dissolution. His Honour explained that result by saying that "the body has appropriated that part of the soil for its own use". The person who has the right to enforce the irrevocable licence (to protect the right of the deceased to lie in peace) is not the holder of the burial licence, but the person with the right of burial (usually the executor or the most likely administrator). The creation of the irrevocable licence does not affect the original contract, which remains on foot. The existence of the irrevocable licence may, however, limit the practical remedies available to the owner of the burial licence. It is not necessary to consider his Honour's reasons concerning the availability of damages, which depended upon issues peculiar to that case.
Young J next considered the issue in Smith v Tamworth City Council (1997) 41 NSWLR 680 ('Smith'). After his death, the adoptive parents of a young man arranged with the Council for his remains to be buried in a cemetery under the Council's control. The plaintiffs, who were the deceased's biological parents, brought proceedings against the Council, as first defendant, and the adoptive parents, as second defendants, to compel the Council to transfer to them the title to the plot, as well as a declaration that they were exclusively entitled to control the plot, or in the alternative, an order that the second defendants permit them to erect a headstone on the plot of their own choosing.
For reasons that do not require exploration, the case was decided upon the assumption that the Council had granted to the second defendants the licence to bury the deceased in the grave plot under Ordinance 68, promulgated under the Local Government Act 1919 (NSW) (even though that Act had been repealed). Under clause 19(1) of Ordinance 68 the grant of a right of burial (being what I have called a burial licence), in accordance with the specified form, conferred: "The exclusive right of burial in one or more specified allotments of the cemetery." Under clause 19(2) the right might be transferred or transmitted, and the Council would record any such transfer or transmission. Clause 27 reserved to the Council the right to approve monuments, tombs, tablets, gravestones etc and provided that "the wording of any inscription shall also be subject to the prior approval of the Council". Clause 19 provided, relevantly, that a person other than the person who is the holder of the right of burial shall not interfere in any way with that grave or allotment without the written authority of the holder of the right of burial.
His Honour considered the relevant authorities at length at 685 to 693 (including at 689, his Honour's earlier decision in Beard) and at 693 and 694, stated the following principles (in so far as they are relevant to the present case): 1. If a person has named an executor acting in his or her will and that person is ready, willing and able to arrange for the burial of the deceased's body, the person named as executor has the right to do so… 3. A person with the privilege of choosing how to bury a body is expected to consult with other stakeholders, but is not legally bound to do so. 4. Where no executor is named, the person with the highest right to take out administration will have the same privilege as the executor in proposition 1. 5. The right of the surviving spouse or de facto spouse will be preferred to the right of children… 9. A person who expends funds in burying a body has a restitutionary right to recover his or her reasonable costs and expenses. 10. A right of burial is not an easement, but a licence: it is irrevocable once a body has been buried in the licensed plot.
Proposition 5 establishes that Mr Vosnakis had the right of burial in respect of his wife, in the sense that I have used that to them in these reasons. This point was not contested by Ms Arfaras.
Young J at 694, 695 identified the right obtained by the second defendants as "an irrevocable licence to have [the deceased's] body remain in the plot together with ancillary rights to have the body remain undisturbed and the right to care for the grave".
His Honour also held, at 695, "that the obligation to pay for the burial and the right or privilege of burial are two distinct matters". This reflects the fact that a number of different persons may have rights and obligations in relation to the burial of a deceased person. The right of burial and the burial licence that is actually used may be held by different persons, as has already been considered. The ultimate obligation to pay for the burial remains the obligation of the deceased person, through that person's estate. The immediate obligation to pay for the proper disposal of a deceased person's body may be imposed on a number of different types of person, depending upon the circumstances, but that is not an issue relevant to the present case.
He then said at 695: There is a nice question as to whether any assignment of the right of burial would be an assignment of an interest in land. I rather think it would be because the irrevocable licence brought about by the interment of (the deceased) in the ground makes the licence more than a contractual licence, it is really a licence coupled with a grant… As an interest in the land is involved, there would need to be some writing to deal with the assignment for it to be recognised pursuant to s 23C of the Conveyancing Act 1919.
It is to be noted that the right created by the burial licence only became irrevocable at the time the deceased was interred in the burial plot.
In his judgments and extra-judicial writing Young J has suggested, so far as is relevant to the present case, that, subject to any applicable statutory provisions or the rules of the particular cemetery, a burial licence gives the holder the contractual right to nominate the person to be buried in the particular burial plot. That contractual right does not give the holder any right of property in the burial plot. Once a body is buried in the burial plot with the consent of the cemetery authority, whether or not with the consent of the holder of the burial licence, the person with the right to bury the body acquires a licence coupled with a grant, which is irrevocable by the cemetery authority, at least for the time necessary for the natural dissolution of the body. The need for this last qualification is uncertain, as it reflects the absence of any authoritative determination in Australia of the question whether the licence is perpetual. It may be that the qualification is not necessary.
It appears that the licence is coupled with a grant because that outcome is essential to the licence being irrevocable, as a matter of law, by the cemetery authority. The precise nature of the grant, and the reasons for its existence, have not separately been explored. It arises out of need. However, it only arises at the time a body is buried. It is, at its heart, a right of the deceased person, but as the law does not recognise deceased persons having rights separate from their executors or administrators, it is a right exercisable by the person who had the right of burial, and who has incidental rights to ensure the maintenance of the grave and that the peace of the deceased is not disturbed.
The creation of the irrevocable licence by reason of the burial of the deceased, in favour of the person with the right of burial, does not have the consequence that the burial licence is novated in favour of the person with the right of burial. The burial licence continues in favour of its holder, and if the cemetery authority has permitted the burial of a body in the burial plot without the consent of the holder, that may subject the cemetery authority to contractual remedies. However, the solicitude that the law accords to the final resting place of the deceased person limits the contractual remedies that are available, and the courts will not generally order disinterment. In effect, once burial has taken place, the law recognises as paramount the entitlement of the person with the right of burial to ensure that the deceased's resting place is not disturbed, over any residual contractual rights of the holder of the burial licence.
Young J has said nothing about the continuing effect of a burial licence that permits more than one body to be buried in the same burial plot, after the first body has been buried.
There has been some academic criticism of the conclusions reached by Young J: see Property Interest in a Burial Plot by Remingus N Nwabueze (to which I was referred by the diligence of Mr Vosnakis' counsel): seen http://works.bepress.com/remingus_nwabueze/1 at 19-26. It may be acknowledged that it may appear anomalous that a purely contractual licence held by the holder of a burial licence can be transformed into an irrevocable licence coupled with a grant, which arises in the interests of the buried person, but must subsist in the living person who had the right of burial. However, if there be an anomaly, it occurs because of unique considerations that arise out of the need that society must address to deal properly with the bodies of its members after death, coupled with the fact that the law reposes in a deceased person's executor or administrator the primary responsibility for dealing with the affairs of the deceased, including the proper and respectful disposal and treatment of the deceased's body. I therefore propose to follow the views expressed by Young J, subject to a consideration of the following authorities, the application of relevant statutory rules, and the rules governing the operation of the cemetery.
In Rutherford v Wallace [1999] NSWCA 299 Giles JA (with whom Beazley JA agreed) said at [27]: The nature of an exclusive right to burial, and its incidents, are far from clear. A general discussion can be found in Young, "The Exclusive Right to Burial", 39 ALJ 50. This appeal was conducted on the basis that what was acquired from Waverley Council was a licence to bury the appellant's wife and another person in the allotment, irrevocable at least as to the person buried once that person was buried in the allotment and with ancillary rights to have the body or bodies remain undisturbed and to care for the grave: cf Smith v Tamworth City Council (1997) 41 NSWLR 688 at 694-5. The licence was taken to be an item of property, a chose in action capable of being transferred or transmitted (as the Ordinance provided) and capable of being held on trust. For the purposes of these reasons I will assume this common ground between the parties.
The primary issue in the case was whether the appellant was entitled to a burial licence that permitted two persons to be buried in the one grave plot. The appellant's wife had already been buried in the grave plot, and the appellant wished to secure the right to ensure that he could be buried with his wife. The appellant's claim failed on the facts. Giles JA, however, made a number of inconclusive observations concerning the significance of the fact that the burial licence in question permitted two persons to be buried in the one grave plot. His Honour said: [29]… It was then said that the appellant was the sole beneficiary of his wife's estate, so that he was beneficially entitled to the property, and in particular to what was said to be the separable licence to bury a second person in the allotment, and could claim the declaration and other orders in question… [32] If during his lifetime a person acquires a right of burial, with a view to his own burial, the burial of himself and/or another person, or otherwise, it can readily enough be said that the item of property forms part of his estate. To the extent that there is a licence to bury a second person in the allotment, the item of property in that respect can arguably devolve upon the beneficiary entitled to his estate: whether that can stand with the devolution of the "right to control the grave" mentioned in Smith v Tamworth City Council at 694 was not the subject of submissions. Even in such a case, however, the person acquiring the Right of Burial during his lifetime will not necessarily hold whatever rights it gives on trust for the other person whom he had in mind, see Beard v Baulkham Hills Shy Council (1986) 17 NSWLR 273 at 275… [35] There is the additional consideration of the licence under the Right of Burial to bury a second person in the allotment. It may or may not be separable from the now irrevocable licence (on the assumed common ground earlier mentioned) to bury the appellant's wife, and is what the case is really about… [36] In my view, it should not be held that the Right of Burial was acquired in any manner on behalf of the estate of the appellant's wife, as to the burial of the appellant's wife and still less if it be separable as to the burial of a second person in the allotment…
Giles JA did not express any concluded view concerning, or suggest the proper basis for resolving, the question of whether or not a burial licence that permits the nomination by the holder of the licence of a second person to be buried in a single grave plot can coexist separately with an irrevocable licence held by a different person who had the right of burial in relation to the first person to be buried.
Windeyer J in Escott v Brikha [2000] NSWSC 458 at [13] accepted that the relevant law on the subject of rights of burial had been set out by Young J in Smith.

The statutory and regulatory provisions

The cemetery formally called the Botany Cemetery is Crown land administered by the Botany Cemetery Trust, a body established pursuant to s 4 of the Botany Cemetery and Crematorium Act 1972 (NSW).
At the time of Ms Vosnakis' burial, the burial licence in question was regulated by the Crown Lands (General Reserves) By-law 2006. That By-law was amended by the Crown Lands (General Reserves) Amendment (Sustainable Burials) By-law 2011, that came into effect on 3 March 2011. The amendment deleted the definition of "exclusive right of burial" in clause 24 of the 2006 By-law (and all other references to that term found elsewhere in the By-law) and replaced it with the term "burial licence".
A "burial licence" was defined as "a licence granted by a reserve trust that confers an exclusive right to bury the remains of one or more persons in a burial place" (clause 24).
Clause 25(c) authorised reserve trusts to make such provisions as they thought necessary for "the size, multiple use and location of burial places", and the balance of the clause authorised reserve trusts to make all manner of provision concerning the conduct of the cemetery, including the improvement and maintenance of the cemetery, and the making of arrangements for the care of burial places, and (p) "any other matter relating to the management of the cemetery".
Division 2 Subdivision 3 of the 2006 By-law contained provisions relevant to the terms and conditions of burial licences, and regulated the grant and transfer of burial licences. Clause 27(1) permitted a reserve trust to grant a burial licence in respect of a burial place in a cemetery. Clause 27(5) provided that a burial licence entitled the person to the exclusive right of burial of the remains of a person in the burial place in respect of which the burial licence was granted. Clause 28 permitted a reserve trust, on application, to transfer a burial licence. Clauses 32 and 33 stated that the holder of the burial licence may bequeath the licence, or it may pass on intestacy, as if it were personal estate of the holder.
Clauses 32 and 33 provide some indication of a statutory intention that burial licences were to take effect as personal property. There is some support for that view in s 6(d) of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW), which provides that the Act does not apply to revocation of exclusive rights to burial.
Clause 33A empowered the reserve trust to resolve disputes or other doubts about who held a burial licence for a particular burial place in the cemetery. The resolution had to be undertaken in the manner set out in the clause.
Mr Vosnakis referred to the fact that the Botany Cemetery has at all material times been Crown land. As such, in 1977, when the burial licence was granted, he submitted that s 6 of the Crown Lands Consolidation Act 1913 (NSW) prevented any interest in land arising. That section commenced: "Crown lands shall not be sold leased dedicated reserved or dealt with except under and subject to the provisions of this Act". Mr Vosnakis said that s 6 of the successor legislation, the Crowns Lands Act 1989 (NSW), is a provision to similar effect. Mr Vosnakis relied upon these statutory provisions for the purpose of an argument that the decision by Young J in Smith should be distinguished, in so far as his Honour held that an interest in land arose at the time of the burial of a body in a grave plot. Mr Vosnakis pointed to the fact that in Smith the cemetery was vested in the Council and was not Crown land, so it was not subject to the restriction that an interest in the land could only be created in accordance with the provisions of the statute that govern title to Crown land.
By Commencement Proclamation issued in the name of the Governor, the Cemeteries and Crematoria Act 2013 (NSW) commenced on 1 November 2014 (save for certain provisions that are not immediately relevant). This Act contains the provisions that now govern the issue and effect of what were formerly called burial licences. By s 5 it is generally the case that the provisions of the Act prevail over inconsistent provisions in, or the inconsistent operation of, the Crown Lands Act 1989.
Although the provisions of the previous statutory and regulatory rules that were in force at the time of the grant of the burial licence, and the burial of Ms Vosnakis, may determine the nature and effect of the burial licence and the consequences of the burial of Ms Vosnakis, it may be necessary to have regard to the successor legislation, because that legislation may regulate the present nature of the rights that comprise the original burial licence, and also the circumstances in which it may be transferred.
A number of provisions of the Cemeteries and Crematoria Act may be relevant. The Act came into force after I reserved judgment in these proceedings. The parties have not had an opportunity to make submissions concerning the effect of the Act. However, I am satisfied that the commencement of the relevant provisions of the Act will not affect the outcome of these proceedings.
Section 45, which deals with the application of Part 4 Division 2 of the Act, is in effect a transitional provision that deals with the circumstances in which burial licences granted under the former legislation will take effect as interment rights under the Act. It relevantly provides: (1) Except as provided by subsection (2), Subdivision 3 does not apply to or in respect of, or affect, the following: (a) any burial licence granted under the Crown Lands Act 1989 before the commencement of this section, (b) any right, licence or other entitlement in the nature of an interment right given by contract or other agreement by the person responsible for the management of the affairs of a cemetery before the commencement of this section. (2) A burial licence or other entitlement referred to in subsection (1) is taken on the commencement of this section to be an interment right granted under this Division and if the interment right was granted or given: (a) in perpetuity or without a fixed term-to have been granted or given (on the same terms as it was originally granted or given) as a perpetual interment right, or (b) for a fixed term-to have been granted or given (on the same terms as it was originally granted or given) for the fixed term, the end of which is taken, for the purposes of this Division, to be the end of the statutory renewal period …
It is not necessary to decide the issue conclusively for the purposes of these proceedings, but it appears that the effect of s 45(2) is that the burial licence granted by Botany Cemetery to Ms Arfaras became a perpetual interment right under the Act, but only from the commencement of the Act. The Act does not affect the existence, nature or effect of the burial licence before that time.
Section 46 of the Act establishes the nature and effect of an interment right under the Act, in the following terms: (1) A cemetery operator must: (a) permit the interment of the remains of the person to whom it relates at the site in a cemetery identified in, or in accordance with, the interment right, and (b) permit the interment in accordance with the cultural or religious practice applicable to the part of the cemetery in which the interment site is located at the time the interment right is granted, and (c) permit a memorial to the deceased person to be erected at the site with the approval of the cemetery operator, and (d) leave the remains undisturbed in perpetuity (or, in the case of a renewable interment right, until such time as the remains may be disturbed or removed in accordance with this Act) unless disturbance or removal at an earlier time is requested or authorised by the holder of the interment right, and (e) leave any memorial to the deceased person lawfully erected at that site, with the permission of the cemetery operator, undisturbed (provided the interment right remains in force and the memorial is kept in good repair) until such time as the memorial may be disturbed in accordance with this Act unless disturbance at an earlier time is requested or authorised by the holder of the interment right. (2) A cemetery operator must comply with the requirements of subsection (1) (d) and (e). Maximum civil penalty: $27,500. (3) Subject to the regulations, a cemetery operator must ensure that any remains of a person that are disturbed or removed are dealt with in accordance with any cultural or religious practices applicable to the remains.
Section 47 permits cemetery operators to grant interment rights that are perpetual or renewable. The Act makes provision for what is to occur in relation to renewable interment rights, which does not require further consideration for present purposes. Section 48 relevantly provides that a perpetual interment right remains in force in perpetuity. Section 49 permits interment rights to be bequeathed, as if the right were the holder's personal estate, and s 50 provides that interment rights may pass on intestacy as if personal estate.
The grant of interment rights is governed by s 56 of the Act in the following terms: (1) A cemetery operator may grant an interment right in respect of an interment site in a cemetery. (2) An application for an interment right must be in the form approved by the cemetery operator and be accompanied by the appropriate fee. (3) An interment right may be granted to one person or to 2 or more persons as joint holders. (4) A cemetery operator cannot, without the approval of the Cemeteries Agency, grant or transfer an interment right to a person if the granting or transfer of the interment right will result in the person holding (including jointly holding) interment rights in respect of more than 2 interment sites in the cemetery for which the interment right is sought or sought to be transferred.
The content of interment rights is governed by section 57 as follows: An interment right granted by a cemetery operator must: (a) identify the person or persons to whom the right is granted, and (b) identify the interment site to which the right relates, and (c) specify the number of persons whose remains may be interred pursuant to the right at that site, and (d) identify the person or persons or class of persons whose remains may be interred pursuant to the interment right or provide that a specified person or person of a specified class may, at a future time, nominate the person or persons whose remains may be interred pursuant to the interment right, and (e) identify whether the interment right is granted as a perpetual interment right or as a renewable interment right, and (f) specify that the interment right may (subject to section 56 (4)) be transferred, and (g) subject to any applicable mandatory code of practice requirement imposed under section 31, specify any other conditions on which the interment right is granted.
Although it appears that s 57 specifies more detailed requirements in respect of the grant of interment rights than was required by the former legislation, it permits the remains of more than one person to be buried in the one burial plot, and while it permits the person or class of persons whose remains may be incurred to be identified, it also allows the specification of persons who may, in the future, nominate the persons whose remains may be interred.
The transfer of interment rights is governed by s 58 in the following terms: (1) A cemetery operator may, on application, transfer an interment right from one person or 2 or more persons as joint holders to one person or 2 or more other persons as joint holders. (2) An application under subsection (1) may be made only by the holder of the interment right concerned or, if the interment right is held by joint holders, by all the joint holders. (3) An application for the transfer of an interment right must be in the form prescribed by the regulations or approved by the Cemeteries Agency and be accompanied by the appropriate fee.
Section 61 of the Act authorises cemetery operators to resolve disputes or other doubts about who holds an interment right for a particular interment site in a cemetery in a manner similar to that which was provided for under the former legislation.
The Cemeteries and Crematoria Act is arguably more prescriptive of the rights and obligations of cemetery operators, and the holders of interment rights, than appears to be the case under the statutory provisions that it has replaced. Formerly, burial licences may have been governed by the law of contract in some cases, and the statutory provisions in others. The sources of the legal principles that governed the operation of burial licences, and the consequences of the burial of a body in a particular burial plot, that I have considered above, appear to establish that in either case the right granted to the holder of a burial licence was created by a contract between the cemetery authority and the holder, although in the case of licences regulated by the statutory provisions, the terms of the licences and their effect might be altered so as to accord with the statutory provisions. As I understand the new Act, it does not have the effect of disturbing the legal effect of the arrangement that I have found was made between Mr Vosnakis and Ms Arfaras, or the consequences of Ms Vosnakis being buried in the burial plot the subject of Ms Arfaras' burial licence. It is probable that any order that the Court may make against Ms Arfaras, that she transfer the burial licence to Mr Vosnakis, would have to be effected in a manner that complied with the requirements of the new Act (although those requirements do not appear to be different in any practical way from the old version). In these circumstances it is not necessary for me to enter upon any consideration of whether any aspect of the new Act may have the effect of altering the legal principles as they applied in July 2012 to the subject matter of the present dispute, and I will not do so.
It may be observed, however, that it does not appear that the persons responsible for the drafting of the new Act have devoted much attention to the niceties that arise out of the possibility that an interment right may permit multiple bodies to be buried in the one grave plot, the holder of the interment right may not be the same person as the person with the right of burial (in relation to one or more of the multiple bodies who are ultimately buried in the one plot), or that the law has traditionally expected the legal personal representative of the deceased person to maintain the interests of the deceased, so to speak, after death. It may be that the irrevocable and perpetual rights that became vested in the person with the burial right which the law created upon the burial of a deceased person in a burial plot with the consent of the cemetery authority, will now be protected, at least in part, by the terms of s 46 of the Act. The Act appears to be blind, at least expressly, to the identification of who it is that may enforce the obligations of the cemetery operator, or protect the grave from the intervention of third parties. The content of the interment rights created by s 57 does not require the cemetery operator to identify the person who may enforce the irrevocable licence after one or more persons have been buried in the one burial plot.
The question of whether the new Act implies that it is only the holder of the interment right who has the power to protect the grave, or whether the Act assumes the continuation of the old law that vests that right in the person with the burial right in relation to each body, must be left for consideration on another day.

The Rules governing the Cemetery

Mr Vosnakis caused a subpoena to be issued to the proper officer of the Botany Cemetery and Eastern Suburbs Crematorium Trusts. The documents produced in answer to the subpoena became exhibit B. One category of documents required to be produced was: "2. A copy of the Rules and Regulations of Botany Cemetery in force as at July 2012". Exhibit B contains a copy of the Rules that were produced in answer to the subpoena.
The Rules in rule 1 define "Holder(s)" as meaning "the person(s) recorded in the Register as the person(s) entitled to the Exclusive Right of Burial for a Burial Place, or their legal personal representative".
The Rules prescribe detailed requirements in relation to the leaving of objects on or near any Burial Place, and the placement of "Containers, Structures, Plants, Embellishments or Adornments" on or near any Burial Place. The rules also prescribe where "Permit Approved Items" shall be placed, planted, erected, installed, inscribed, fixed or fitted. The Rules control who may provide services as a contractor or monumental mason within the Cemetery.
Rule 5 provides in part: Subject to the terms of any agreement entered into by the Trust with respect to the maintenance of a Burial Place or Structure over a Burial Place, the maintenance of any "Permit Approved Items" shall be the responsibility of the Holder(s) of the Burial Place.
Thus, under the Rules, it is the holder of the Exclusive Right of Burial (being the holder of the burial licence), or their legal personal representative, who has the responsibility for the maintenance of the Burial Place. Rule 5 appears to have the effect of changing one aspect of the principles developed by Young J in so far as they would otherwise have applied to the irrevocable licence that may have been conferred on Mr Vosnakis, as the person with the burial right in relation to his wife, when she was buried in the burial plot with the consent of the cemetery authority. According to Young J, an incidental aspect of the irrevocable licence would have entitled Mr Vosnakis to maintain the grave site of his wife. Rule 5 appears to give that right to the holder of the burial licence.
Rule 8 makes the removal or relocation of any remains of the dead subject to the approval of the Trust.
Rule 11.1 provides that the Exclusive Right of Burial may be transferred, sold or bequeathed upon, among other things, with the consent of the Trust.

Exhumation

As at one stage Mr Vosnakis threatened to cause his wife's body to be exhumed from the burial site, that threat introduced into the proceedings a question of whether it was a reasonable or practical course for Mr Vosnakis to take to be able to ensure that he could be buried with his wife for him to acquire an entirely new burial licence that permitted the burial of two bodies, and to cause his wife's body to be exhumed and reburied in the new plot.
It appears that the exhumation of human remains is governed by provisions of the Public Health Regulation 2012 (NSW). Under clause 69 of the Regulation a person must not exhume a body unless the exhumation of the remains has been approved by the Director-General of the Department of Health. Relevantly, under clause 70, an application for approval may be made to the Director-General by an executor of the estate of a dead person. The application must be made in the prescribed manner, with the provision of certain information, and an application fee must be paid. Clause 71 permits the Director-General to grant the approval, or to refuse it. A Policy Directive on the Exhumation of Human Remains issued by the NSW Ministry of Health states in Part 1.3 that the local Public Health Unit (acting for the Director-General) "is not bound to approve the application". The evidence does not establish whether or not applications are granted as of course, or whether there are restrictions on the manner in which the discretion of the Director-General is exercised. A strict procedural regime is imposed on the manner in which exhumations are carried out.

Conclusion as to the consequences of burial of Ms Vosnakis

The question is whether the burial of Ms Vosnakis in the burial plot with the consent of Ms Arfaras had the direct legal effect that Mr Vosnakis became entitled to the burial licence of which Ms Arfaras was the holder.
Mr Vosnakis submitted that he automatically became entitled to the second right of nomination. He submitted that the second right of nomination was inseparable from the first, as otherwise there would be incompatible control of the one gravesite. Further, it is in the interests of public policy that the person who chooses to bury the first person in the double grave have the right to select the second person to be buried there. He submitted that even though, as the cemetery was Crown land, no interest in land was created at the time of Ms Vosnakis' burial, the right to nominate a second person to be buried in the burial plot nonetheless passed to Mr- Vosnakis, as part of the irrevocable licence created by the exercise of his right to bury his wife in the burial plot.
I have not found it necessary to determine whether, as Mr Vosnakis submitted, no interest in land could have been created in favour of Mr Vosnakis when his wife was buried in the burial plot. It is not clear that the provisions of the Crown Lands Consolidation Act 1913 and the Crown Lands Act 1989 that have been referred to above exclude the possibility that, when a body is buried in a burial plot in accordance with a burial licence granted under a By-law promulgated under the Act, an irrevocable licence coupled with a grant will arise. It appears that Mr Vosnakis submitted that the statutes excluded an interest in the burial plot arising in order to counter the argument that the contract that he has alleged was made with Ms Arfaras was ineffective because of the absence of writing. However, if the Acts had the effect that the licence could not be coupled with a grant, then for the reasons given by Young J, the licence could not be irrevocable. It is not clear that any grant coupled with the licence would be inconsistent with the prohibition upon Crown lands being dealt with "except under and subject to the provisions of this Act". If a By-law made under the Acts authorises the grant of burial licences and their consequences, that may permit the licence which arises upon burial being coupled with a grant.
I do not accept that, upon Ms Vosnakis being buried in the burial plot, Mr Vosnakis became entitled to exercise the right created by the burial licence to nominate the second body to be buried in the burial plot, as if the effect of the burial of Ms Vosnakis in that plot was to cause the burial licence to be novated in favour of Mr Vosnakis.
From the time that Ms Vosnakis was buried in the burial plot, Mr Vosnakis became entitled to enforce an irrevocable licence that would give him certain legal rights to prevent Ms Vosnakis' resting place being disturbed. The precise nature of those rights has not authoritatively been determined. It is probably the case that the ancillary right to maintain the gravesite, that would have arisen in Mr Vosnakis' favour under the general law, has been excluded, or at least limited, in this case by the operation of rule 5 of the Rules governing the Botany Cemetery.
There is nothing in the general law that has any other effect on the entitlement of the holder of the burial licence. In this case the right of first nomination was exercised by the holder, Ms Arfaras. That aspect of the burial licence was therefore exhausted. The burial licence otherwise, however, remained in force between the cemetery authority and Ms Arfaras.
There is also nothing in the general law that suggests that, if the right of first nomination is exercised in favour of a deceased person as to which a second person has the right of burial, then that second person must also become entitled to exercise the second right of nomination. The general law does not appear to contemplate that more than one person will be buried in the one burial plot, at least before the dissolution by natural processes of the body first buried.
The concept of multiple bodies being buried in the one burial plot appears to be a creation of statute. Once it is understood that the holder of the burial licence has a right to nominate more than one body to be buried in the one burial plot, and that that right may be exercised in the discretion of the holder, including in relation to the burial in the one burial plot of entirely unrelated persons, there does not appear to be any proper ground for concluding, on the basis of some novel public policy, that the second right of nomination must automatically accrue to the person who had the right of burial in relation to the first body nominated.
It is true that a consequence of this outcome may be that, once more than one body is buried in the one burial plot, irrevocable licences coupled with grants will arise in relation to two separate persons who had the rights of burial in relation to the two bodies that have been buried in the burial plot. That is a consequence that seems simply to flow from the statutory authorisation for two bodies to be buried in the same burial plot. As the objective of the irrevocable licence is that neither body should be disturbed, at least for the period of natural dissolution, it is not easy to see reality in any suggestion that the existence of two separate irrevocable licences in relation to the one burial plot may give rise to serious practical difficulties. In the case of Botany Cemetery there may not even be any clash concerning the maintenance of the gravesite, as rule 5 appears to give that right to the holder of the burial licence, and not to the two holders of the irrevocable licences arising out of the burial of the bodies. In cases where there is no equivalent of rule 5, and the holders of the right of burial have the ancillary right to maintain the gravesite, there may be some scope for conflict. That seems to be an unavoidable consequence of two bodies being buried in the one burial plot. The courts should be able to devise appropriate rules to resolve conflicts if they arise in the future.

Was there a binding contract between the parties?

Mr Vosnakis and Ms Arfaras were at issue as to whether the events that occurred between 19 July 2012 and 25 July 2012, when Ms Vosnakis was buried, gave rise to a binding and enforceable contract which required Ms Arfaras to transfer the burial licence to Mr Vosnakis.
I find that those events did not give rise to a contractual obligation upon Ms Arfaras to transfer the burial licence. I make that finding for two reasons, each of which would separately justify a conclusion that no enforceable contract was made. First, I am not satisfied that an analysis of any of the conversations justifies the conclusion that Mr Vosnakis and Ms Arfaras made a bargain, in the sense that the one made a promise to the other, in each case, in exchange for receiving the benefit of the promise made by the other. In essence, Ms Arfaras said to Mr Vosnakis that she had decided that Mr Vosnakis could bury his wife in one of the two available burial plots, and that in due course he could be buried in the same burial plot. Although this is a synthesis of a number of conversations, Ms Arfaras also said that she would transfer the burial plot to Mr Vosnakis. That promise may have been implicit in her offer that he could be buried in the same burial plot as his wife. Mr Vosnakis responded by saying "thank you". He had the right of burial in respect of his wife, and he caused her to be buried in the burial plot in response to Ms Arfaras' offer, but he did not in any real or practical way make a promise to Ms Arfaras that he would do so. In the tragic and emotional circumstances in which these events took place, the two people simply made an arrangement that was implemented in part, and Ms Arfaras agreed to transfer the burial plot to Mr Vosnakis, but she did not do so in any real way in return for anything to be done by Mr Vosnakis. Ms Arfaras may have been comforted by the thought that her daughter would be buried in an adjacent burial plot to that in which her own mother had been buried, and in which she expected to be buried, but the evidence does not go so far as to establish that Ms Arfaras agreed to transfer the burial plot to Mr Vosnakis in return for his agreement to bury his wife in that plot, it being an emotional benefit sought by Ms Arfaras that she achieve that result.
Secondly, I do not accept that the objective circumstances justify a conclusion that the parties intended to create legally binding relations between themselves. The conversations took place on the day of, and the days immediately following, the unexpected death of the parties' wife and daughter respectively. I do not necessarily accept Ms Arfaras' evidence that she was effectively a "zombie". Nonetheless, it is self-evident that both parties would have been extremely distressed. It is a fact of life, however, that even in this distressed state the closest relatives of a deceased person have to make practical arrangements for the funeral and burial or cremation of that person. That necessarily introduces a need for practical and objective conduct in circumstances where the people involved are otherwise overwhelmed by grief. I am satisfied by the evidence that both Mr Vosnakis and Ms Arfaras rationally and conscientiously attended to the practical arrangements necessary for Ms Vosnakis' funeral and burial. In Ms Arfaras' case, she repeated her commitment to the arrangement on a number of occasions before her daughter's burial. However, it is hardly conceivable that in the extremity of their mutual situation they thought, in the necessary objective sense, that once the arrangement had been made, it would be contractually enforceable, so that, if Mr Vosnakis changed his mind, and decided to bury his wife in a completely different burial plot, Ms Arfaras could obtain an injunction from the Court to enforce the interment of Ms Vosnakis in the burial plot. Equally, it was not objectively intended that Mr Vosnakis could oblige Ms Arfaras to transfer the burial plot to him by obtaining remedies appropriate for the enforcement of a contract. In essence, in my view, the thought that the parties were solemnly entering into a binding legal contract could not have been further from their minds.
I have made this finding on the basis of "an objective assessment of the state of affairs between the parties", in the sense that I understand the plurality of the High Court intended to give to those words in Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; (2002) 209 CLR 95 at [24]. It is not necessary for me to attempt to resolve apparent differences in the authorities as to whether the effect of the High Court's judgment was to abandon the principle that there is a rebuttable presumption of fact that arrangements or agreements made in the family are not intended to have legal force (Evans v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] FCAFC 81; (2012) 289 ALR 237 at [12]); or whether there are circumstances in which the presumption will continue to have effect (Darmanin v Cowan [2010] NSWSC 1118 at [206], and Ashton v Pratt (No 2) [2012] NSWSC 3 at [32]). That is a task best undertaken in a case where the application of the presumption may have an effect on the outcome of the proceedings. In the present case I am satisfied on the whole of the objective evidence that the Court would not be justified in finding that the parties intended to make a legally binding contract.
I have not ignored Mr Vosnakis' submission that the relationship between him and Ms Arfaras was son-in-law and mother-in-law, which is not within the usual category of family relationship. Nonetheless, in the intimate mutual task of making arrangements for the burial of their wife and daughter respectively, I think it is proper to regard the relationship as one of family. I accept that the step that Mr Vosnakis was induced to take in causing his wife to be buried in the burial plot was effectively final, but that is a matter more relevant to his estoppel claim. I also accept that Ms Arfaras' conduct in signing the written application for interment in the burial plot was not a casual process, but I think that this was no more than a necessary practical step in implementing the arrangement, and did not by itself signify an objective intention on the part of either party to be legally bound by the arrangement.
It is therefore not necessary for the Court to deal with Ms Arfaras' reliance upon ss 23C and 54A of the Conveyancing Act. However, I would merely note that, if the parties had entered into a contract under which Ms Arfaras agreed to transfer the burial licence to Mr Vosnakis, they did so at a time before Ms Vosnakis was buried in the burial plot. For the reasons that I have considered above, at that time the subject matter of the contract was a contractual licence that did not consist of, or grant, any interest in land. If that is right, then neither section would have any application. An irrevocable licence coupled with a grant arose in favour of Mr Vosnakis at the time the cemetery authority permitted him to bury his wife in the burial plot. The creation of that interest is irrelevant to Ms Arfaras' reliance upon the sections of the Conveyancing Act. It is not necessary to resolve the question of whether the continuing burial licence, in so far as it relates to the right to nominate a second person for burial in the burial plot, was in some way turned into an interest in land, when Ms Vosnakis was buried in the plot as the first person nominated for that purpose in exercise of the burial licence. The transfer of the burial licence to Mr Vosnakis, if the Court orders that to take place, will be carried out in the future, and in any event will require writing in the form of the completion of the transfer at the bottom of the certificate that evidences the granting of the burial licence.
It is also strictly unnecessary for the Court to deal with the argument, put forward by Ms Arfaras, that Mr Vosnakis' agreement to exercise his right of burial in respect of his wife in favour of burying her in the burial plot is not capable of constituting good consideration. However, for the reasons I have considered above, the right of burial is a right that the law will apparently protect, even though there is some doubt as to the remedies that will be available in particular situations. In my view, if Mr Vosnakis had agreed to exercise the burial right in the manner that he did, at the request of Ms Arfaras, and for her benefit, and in exchange for her promise to transfer the burial licence to him, that is a disadvantage to Mr Vosnakis, and an advantage to Ms Arfaras, which would be capable of constituting good consideration.

Must Ms Arfaras grant a transfer because she is bound by an estoppel?

Ms Arfaras induced Mr Vosnakis to exercise his right of burial in respect of his wife by causing her to be buried in the burial plot. Neither party may have focused clearly on the legal entitlement of Mr Vosnakis to decide where his wife would be buried, but it seems to be clear that both accepted that it was his right. It appears that Ms Arfaras acted out of goodwill, and to ensure that her daughter's body was buried in a proper and convenient manner. It may also have pleased Ms Arfaras emotionally to know that her daughter would be buried close to her own mother, and in a place that was close to where Ms Arfaras could ensure that she would also be buried in due course. Ms Arfaras satisfied herself that she controlled two burial licences, and that the burial plot in which her mother had been buried was available for the burial of her own body, as her father had been cremated. Notwithstanding the emotional distress from which Ms Arfaras was suffering, I am satisfied that she was able to make these calculations clearly enough. She volunteered to Mr Vosnakis, and probably insisted, that he cause his wife to be buried in the burial plot, and promised to transfer her burial licence in relation to that plot to Mr Vosnakis, so that he would be able to control the right to nominate the second person to be buried in the burial plot. Ms Arfaras plainly knew that the purpose of the transfer was to permit Mr Vosnakis to be able to ensure that he would be buried in the same place as his wife. She offered to Mr Vosnakis that that result should occur. It is probable that Ms Arfaras understood, and if not she ought reasonably to have understood, that Mr Vosnakis complied with her suggestion on the understanding that she would honour her promise to transfer the burial licence to him. It is also probable that she understood, and if not she ought reasonably to have understood, that as Mr Vosnakis appeared to want to be able to ensure that he would be buried with his wife, and as he had the right of burial in relation to his wife, he would not have caused his wife to be buried in the burial plot, if he had been told before the burial that Ms Arfaras would renege on her promise. The evidence would not support a finding that suitable burial plots were in such short supply that Mr Vosnakis would have been obliged for practical reasons to cause his wife to be buried in the burial plot anyway. On the contrary, it should have been understood by Ms Arfaras that, if she had not promised to transfer the burial licence to Mr Vosnakis, he would have obtained an alternative burial licence on his own account, so that he could ensure that he and his wife would be buried in the one place.
After Ms Arfaras, for no good reason that has been demonstrated, refused to honour her promise to transfer the burial licence to Mr Vosnakis, she created the situation that Mr Vosnakis could no longer look forward to being buried with his wife, unless he went through the process of causing her body to be exhumed and reburied in a burial plot for which he controlled the burial licence. It is true that, in one of his emails Mr Vosnakis threatened that he would go through the process of exhuming his wife's body, if the dispute could not be resolved in a way satisfactory to him, but I do not accept that that threat represented a course that was in any way desirable to Mr Vosnakis. That is amply demonstrated by the fact that Mr Vosnakis has commenced and prosecuted the present proceedings, rather than taking steps to cause his wife's body to be exhumed. Any application by Mr Vosnakis for the exhumation of his wife's body, so that it could be reburied in another burial plot, would be dependent upon the discretion of the Director-General of the Department of Health. The evidence does not disclose the circumstances in which approval will be granted, or on what conditions. Much more significant, however, is the self-evident aversion that a husband in Mr Vosnakis' position would have to disturb his wife's remains, and to go through the process of exhumation and reburial. That aversion is strongly reflected in the disinclination of the Court to make orders for exhumations, as I have discussed above.
In practical and emotional terms, when Ms Arfaras permitted Mr Vosnakis to exercise his right of burial by causing Ms Vosnakis to be buried in the burial plot, she allowed him to exhaust that right once and for all. The Court should not regard the legal possibility of exhumation and reburial as being a course that should be imposed upon Mr Vosnakis, if he persists in his desire to be buried with his wife.
That conclusion is reinforced by the circumstance that the transfer of the burial licence to Mr Vosnakis will not impose any significant detriment on Ms Arfaras. Mr Vosnakis did all that he agreed to do to put Ms Arfaras in the position where she could, at his expense, obtain a grant of probate of her mother's will, so that she could control the burial licence in respect of the burial plot in which her mother was buried. She could therefore ensure that she was, if she wished, buried with her mother, and close to her daughter. She had no right to expect to be able to be buried with her daughter, as that right would be inconsistent with the arrangement she made with Mr Vosnakis in the days after her daughter's death. It is plain that Ms Arfaras is now estranged from Mr Vosnakis, and may not relish being buried in close proximity to him. However, she did not assert any such disinclination as being any basis for her to resist the transfer of the burial licence to Mr Vosnakis.
I should note for completeness that, as recorded above, at one stage Mr Vosnakis agreed to pay to Ms Arfaras the amount that he understood was the current acquisition price for burial plots, as part of a compromise of the dispute. Ms Arfaras rejected his offer, and the offer was withdrawn. Ms Arfaras did not put a case that, if the Court decided that Ms Arfaras should be ordered to transfer the burial licence to Mr Vosnakis on the basis that an estoppel had arisen, the order should only be made on condition that Mr Vosnakis made an appropriate payment to Ms Arfaras. As Ms Arfaras did not seek any payment at the time the arrangement was made, and as she has not made a claim in the alternative in these proceedings that any order for transfer should only be made on condition that an appropriate payment be made, that issue does not arise for consideration.
In these circumstances I find that it was against conscience for Ms Arfaras to change her mind and refuse to transfer the burial licence to Mr Vosnakis after he had, on the assumption induced by her promise that she would transfer the burial licence to him to enable him to be buried with his wife, in a real and practical way, exhausted his right of burial by causing his wife to be buried in the burial plot.
The question is whether these circumstances give rise to some estoppel that entitles Mr Vosnakis to an order that Ms Arfaras complete and execute the transfer form at the foot of the certificate that evidences the grant of the burial licence. In particular, is Mr Vosnakis' entitlement in that regard detrimentally affected by the same considerations which have caused me to conclude that the parties did not intend to make a contract, or for the arrangement that they did make to be legally enforceable as a contract?
In Giumelli v Giumelli [1999] HCA 10; (1999) 196 CLR 101 at [35] and [36] Gleeson CJ and McHugh, Gummow and Callinan JJ related with apparent approval the following judicial statements (citations omitted): [35] The matter was taken further by McPherson J in Riches v Hogben. His Honour noted that the critical element is the conduct of the defendant after the representation in encouraging the plaintiff to act upon it and continued: A consequence of applying the principle may be to complete an otherwise imperfect gift, as in Dillwyn v Llewelyn, or to give effect to an agreement that, for want of certainty or consideration or of some other essential element, falls short of constituting an enforceable contract. Many of the reported cases are concerned with imperfect gifts; but there is of course a sense in which all agreements made or promises given without consideration are imperfect gifts of the benefits they purport to confer. What distinguishes the equitable principle from the enforcement of contractual obligations is, in the first place, that there is no legally binding promise. If there is such a promise, then the plaintiff must resort to the law of contract in order to enforce it, it being the function of equity to supplement the law not to replace it. The second distinguishing feature is that what attracts the principle is not the promise itself but the expectation which it creates. In that respect it represents the precise converse of what was said by Jessel MR in Ungley v Ungley to be the basis for enforcing the contract in that case. Finally, the equitable principle has no application where the transaction remains wholly executory on the plaintiff's part. It is not the existence of an unperformed promise that invites the intervention of equity but the conduct of the plaintiff in acting upon the expectation to which it gives rise. That is why in Dillwyn v Llewelyn, where the son built on land promised but not effectively conveyed to him by a memorandum signed by his father, Lord Westbury LC said that the only inquiry was "whether the son's expenditure, on the faith of the memorandum, supplied a valuable consideration, and created a binding obligation". [36] In Olsson v Dyson, Kitto J observed that the judgment of the Lord Chancellor in Dillwyn v Llewelyn seemed to contain two concurrent lines of reasoning. One was that, assuming there was no contract, nevertheless the conduct of the father was such as to bind him in conscience to make the legal situation correspond with the implication and the encouragement given the son to lay out the money. The other was that the father's conduct in encouraging the son to build the house on the footing that the land would be his, when acted upon by the son, created an equity which bound the father to make good the son's expectation.
In my view the plurality has accepted that, in an appropriate case, it may be proper for the Court to find that a person who induces another to act to that other's detriment in reliance upon an assumed state of affairs, created by the first person, should be bound to ensure that the state of affairs is fulfilled, even in circumstances where, for one reason or another, they fall short of creating a promise that is contractually enforceable. That may be so even where there is no agreement between the parties, in the sense that the promise made by one party is given in return for the promise of the other, or where there are mutual promises but an intention to create legal relations is absent because of the context, such as that the arrangement is made between family members. The Court is not called upon to enforce a promise that has been made, but is required to give relief to ensure that one party who induces another to act to that other's detriment, by creating an assumption that a particular state of affairs exists, or will exist, is not allowed to resile from the assumption created where it is unconscionable to do so.
I accept, with respect, the applicability of statement of the elements that must be established before a remedy based upon an estoppel can be granted, in circumstances such as the present, made by Brereton J in Vukic v Grbin [2006] NSWSC 41 at [27] - [28]: [27] Equity comes to the relief of a plaintiff who has acted to his or her detriment on the basis of a fundamental assumption in the adoption of which the defendant has played such a part that it would be unfair or unjust if he or she were left free to ignore it, on the footing that it would be unconscionable for the defendant to deny the assumption [Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641 at 675; Thompson v Palmer (1933) 49 CLR 507 at 547; Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 at 404 (Mason CJ and Wilson J)]. It is essential to an equitable estoppel that the defendant knows or intends that the party who adopts it will act or abstain from acting in reliance on the assumption or expectation [Crabb v Arun District Council [1976] Ch 179 at 188; Waltons v Maher, 423 (Brennan J)]. Such knowledge or intention may easily be inferred where the adoption of the assumption or expectation is induced by the making of a promise, but may also be found where the defendant encourages a plaintiff to adhere to an assumption or expectation already formed, or acquiesces in an assumption or expectation when in conscience objection ought to be stated [Waltons v Maher, 423 (Brennan J)]. The unconscionability which attracts the intervention of equity is the defendant's failure, having induced or acquiesced in the adoption of the assumption or expectation with knowledge that it would be relied on, to fulfil the assumption or expectation or otherwise avoid the detriment which that failure would occasion [Waltons v Maher, 423 (Brennan J)]. [28] Although numerous attempts have been made to identify the various components of equitable estoppel, for present purposes, the matters which a plaintiff must establish to found an equitable estoppel may conveniently be summarised, in the present context, as follows: • First, in relation to the plaintiff's conduct: that the plaintiff acted (or abstained from acting) in reliance upon an assumption or expectation that a particular legal relationship existed or would exist between the plaintiff and the defendant, or that the plaintiff had or would acquire some interest in the defendant's property; • Secondly, in relation to the defendant's conduct: that the defendant induced the plaintiff to adopt the assumption or expectation and encouraged the reliant activities of the plaintiff, or at least failed to deny the assumption or expectation with knowledge that the plaintiff was relying on it to the plaintiff's potential detriment and that it could be fulfilled only by transfer of the defendant's property, a diminution of the defendant's rights or an increase in the defendant's obligations; • Thirdly, in relation to the interest or property: that the assumption or expectation was one which the defendant could lawfully satisfy. [See generally, Waltons v Maher, 428-429 (Brennan J); Meagher, Gummow & Lehane, Equity: Doctrines & Remedies, (4th ed., 2002), [17-105]].
In my view all of the requisite elements are satisfied in the present case, with the result that Ms Arfaras holds the burial licence on the basis that she is required to transfer it to Mr Vosnakis, so that he will be able to control the exercise of the second right of nomination in a way that will ensure that he is buried with his wife, if that should continue to be his wish.
It is no bar to this conclusion that the subject matter of Ms Arfaras' obligation is merely a personal licence that gives her a contractual right against the cemetery authority, or that the detriment that Mr Vosnakis suffered was the exercise of the right of burial, which is recognised and enforced by Equity. The latter right may have had no value in an economic sense, but it was of emotional significance, and economic value is not the only value that Equity protects: see for example The Commonwealth v Verwayen (1990) 170 CLR 394 per Deane J at 448; Donis v Donis [2007] VSCA 89 per Nettle JA (as his Honour then was) at [34], and Sidhu v van Dyke [2014] HCA 19; (2014) 251 CLR 505 per French CJ and Kiefel, Bell and Keane JJ at [84]. The nature of the detriment suffered by Mr Vosnakis in this case may be unusual, but it is significant when measured against the value of the burial licence held by Ms Arfaras, and in that respect is material.
The proper way for the Court to ensure that Ms Arfaras proceeds in accordance with the state of affairs that she caused Mr Vosnakis to assume, before he committed himself to the exercise of his right of burial of his wife's body, is to require Ms Arfaras to execute a transfer of the burial licence in favour of Mr Vosnakis. That is the only way that Mr Vosnakis will secure control of the burial licence in a way that will ensure that he is able to be buried with his wife. There is no question of that right having some monetary value, compensation for which would in the circumstances be a sufficient remedy to Mr Vosnakis. Furthermore, it would not be sufficient for Ms Arfaras to cooperate in an application by Mr Vosnakis to exhume his wife's body, as that course would be entirely inconsistent with the state of affairs upon which Ms Arfaras induced Mr Vosnakis to act.

Orders

As the manner in which burial licences, now called interment rights, may be transferred is governed by statute, the process of the transfer of the burial licence in question from Ms Arfaras to Mr Vosnakis will have to be undertaken in accordance with the legislation. As I understand it, that will require that the provision in blank for the transfer of the burial licence at the foot of the certificate that was issued to Ms Arfaras be completed in favour of Mr Vosnakis, signed by Ms Arfaras, and submitted to the present cemetery operator.
As I am not entirely sure of the practicalities involved in effecting the transfer, I propose to invite the parties to consider these reasons for judgment, and then to bring in short minutes of order to implement these reasons. It may be that that should involve some inquiry of the cemetery operator. It would be preferable for Ms Arfaras to cooperate in implementing the transfer, but if that does not occur, I would make the usual consequential orders to permit a Registrar of the Court to take any necessary steps in Ms Arfaras' name. It will also be appropriate for the parties to be given leave on notice to relist the matter before me to deal with any unexpected impediment to the implementation of the Court's orders that may occur.
The orders should include an order that Ms Arfaras pay Mr Vosnakis' costs of the proceedings on the ordinary basis. I am not aware of any reason why the costs order should be on any other basis. I will permit the parties to suggest an alternative basis for the costs order, at the time they bring in the short minutes of order.

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: 22 June 2015

Botany Cemetery and Crematorium Act 1972(NSW)

Crown Lands Consolidation Act 1913(NSW)

Crowns Lands Act 1989(NSW)

Local Government Act 1919(NSW)

Public Health Regulation 2012(NSW)

Governor, the Cemeteries and Crematoria Act 2013(NSW)

Vosnakis v Arfaras

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