Rutherford v Wallace [1999] NSWCA 299

New South Wales Court of Appeal CITATION : Rutherford v Wallace [1999] NSWCA 299 FILE NUMBER(S) : CA 40330/97 HEARING DATE(S) : 30 June 1999 JUDGMENT DATE : 22 September 1999

PARTIES : Lindsay Normal Rutherford - Appellant Lynne Marie Wallace - Respondent JUDGMENT OF : Beazley JA at 1; Giles JA at 2; Fitzgerald JA at 41

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : DC 1457/97 LOWER COURT JUDICIAL OFFICER : Patten DCJ

COUNSEL : D Leamey - Appellant R N Winfield & N Jackson - Respondent SOLICITORS : D Leamey - Appellant Anne-Marie Blake & Associates, Woy Woy - Respondent CATCHWORDS : Rights of Burial - Local Government Act 1919 - Implied/constructive trust. DECISION : (by majority) Appeal dismissed with costs.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40330/97 DC 1457/97

BEAZLEY JA GILES JA FITZGERALD JA Wednesday 22 September 1999

Lindsay Norman RUTHERFORD v Lynne Marie WALLACE

JUDGMENT

1 BEAZLEY JA: I agree with Giles JA. 2 GILES JA:. The wife of Mr Lindsay Rutherford, whom I shall refer to simply as the appellant, died in the early hours of 20 May 1983. Many of the children of the marriage were at his home during the day. There was discussion of where the appellant's wife was to be buried. In circumstances to which I will come, one of the children arranged for the acquisition of a Right of Burial in an allotment in the Waverley Cemetery and the Right of Burial was put in the name of the respondent, another of the children. A few days later the appellant's wife was buried in the allotment. 3 The Right of Burial carried an entitlement to an additional burial in the allotment. The appellant wished to be buried with his wife. But he and the respondent became estranged, and by late 1996 they were in dispute as to the control over the Right of Burial. In March 1997 the appellant brought proceedings against the respondent in the District Court, claiming a declaration that she held her interests, rights and entitlements to property, being the allotment as described in the Right of Burial certificate, on trust for him, and orders that she be restrained from disposing of or otherwise dealing with her interest, rights and entitlements to the property and transfer the property to him. 4 Patten DCJ found against the appellant, and dismissed his proceedings with costs. The appellant appealed, with leave, seeking to have his Honour's determination set aside and the declaration and orders as originally claimed. 5 The appeal was heard on 30 June 1999. As later described, a question of the constitution of the proceedings arose, leave was given to join the estate of the appellant's wife as a party to the proceedings, and the argument included argument prospectively on behalf of the estate. On 17 July 1999, before the joinder of the estate had been effected, the appellant died. In due course the appellant's executor was substituted as appellant and the administrator of the estate of his wife was joined as an appellant. At a brief further hearing on 24 August 1999 some consequential matters were dealt with: it is unnecessary to go into them. 6 We were informed of arrangements to preserve the body of the appellant so that, if the appeal succeeded, he could be buried as he had wished. It is convenient to continue to refer to Mr Lindsay Rutherford as the appellant. 7 This is a distressing case. At the time of the appeal the appellant was aged about 84, and there is no reason to doubt his wish to be buried with his wife. The estrangement with the respondent involved allegations of sexual assault: it should be said at once that the appellant denied the allegations, and that the proceedings in the District Court and this appeal did not and do not involve determining whether there is any substance in the allegations. The dispute appears to have divided the family. Strong emotions are understandable. But court proceedings can only entrench, even exacerbate, a breakdown in relationships which in future years might be regretted. 8 In the hope that, even at a late stage, there could be an agreed rather than imposed resolution of the dispute, when the appeal was called on the Court invited the parties to consider mediation, and the services of a Registrar of the Court, a trained mediator, were made available to them. The parties took up the opportunity, but we were informed that agreement could not be reached. 9 The resolution of the dispute must therefore be according to law. Neither Patten DCJ nor this Court could or can give effect to abstract notions of justice in the relationship between the appellant and the respondent, and no doubt they would have disagreed on what was just between them. Whether the appellant's claim has been made out must be decided by the application of legal rules as to property and obligations to the facts as found on the evidence.