Escott v Brikha [2000] NSWSC 458

New South Wales Supreme Court

CITATION : Escott v Brikha [2000] NSWSC 458 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 4914 of 1999 HEARING DATE(S) : 26 May 2000 JUDGMENT DATE : 26 May 2000

Michelle Louise Escott (Plaintiff) Maroun Brikha (First Defendant) PARTIES : Peter Brikha (Second Defendant) Helen Brikha (Third Defendant) The Trustees Rookwood Anglican Cemetery (Fourth Defendant) JUDGMENT OF : Windeyer J at 1

R.D. Wilson (Plaintiff) COUNSEL : No appearance First, Second and Third Defendants) Submitting Appearance (Fourth Defendant) Stacks - The Law Firm (Plaintiff) SOLICITORS : No appearance (First, Second and Third Defendants) Paul Marsch (Fourth Defendant) CATCHWORDS : SUCCESSION - estates - right of burial LEGISLATION CITED : Necropolis Act 1901 s24 CASES CITED : Smith v Tamworth City Council (1997) 41 NSWLR at 680 DECISION : See paragraph 13

5 THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

WINDEYER J

FRIDAY 26 MAY 2000

4914/99 MICHELLE LOUISE ESCOTT v MAROUN BRIKHA & ORS

JUDGMENT

1 HIS HONOUR: In this matter the plaintiff seeks orders which will have the effect of giving her the control of the grave of her late husband, Albert Brikha. He died on 20 February 1998 as a result of an unlawful killing. He had no will. His assets, such as he had, were held jointly with his wife who is the plaintiff and, therefore, no grant of administration was required in respect of his estate. On intestacy his widow would, of course, be the person having the highest right to a grant of administration and had there been assets she would have taken the larger part of those assets on intestacy, and perhaps the whole of them. 2 The plaintiff had wished to arrange for the burial of her husband in a cemetery at Tuncurry but under what appears to have been, at the very least, considerable pressure exerted upon her by the brothers of her husband, she agreed to the funeral and burial taking place in Sydney as requested by the mother and brothers of her late husband by a letter from some solicitors dated 24 February 1998. 3 As a result of this, Liberty Funerals who were to conduct the funeral at the Tuncurry Lawn Cemetery changed the arrangements so that the arrangements remained for the funeral service to be held at St Hurmizd at Greenfield Park but with the burial to take place at Rookwood Cemetery in the Anglican section rather than at the Tuncurry Lawn Cemetery. 4 The plaintiff agreed to allow the mother and brothers of her late husband to arrange the burial at the Rookwood Cemetery. She did not sign over any rights as to burial but merely authorised them to make the necessary arrangements. 5 The burial took place at Rookwood on 26 February 1998 in accordance with arrangements which appear to have been made by the first defendant, Maroun Brikha. He signed the Notice of Internment form for the cemetery and signed an application for purchase of grave, in doing so stating that he was duly empowered to authorise the opening of the grave and agreeing to pay all fees which the trustees of the Rookwood Anglican Cemetery required to be paid. On the evidence before the Court there does not appear to have been any purchase cost for the grave. If there were any such costs, then on the case the plaintiff wishes to make out she would be obliged to pay any amount which Mr Maroun Brikha paid for the grave, to him. 6 Probably none of these matters would have caused any concern except that the plaintiff found out that a headstone had been constructed and placed on the grave bearing the words: "In loving memory of our dear son and brother and father of Mirandah, Dean and Jake. Albert Brikha born 12 August 1966 died 20 February 1998. Rest in Peace." 7 Thus there was no mention of the plaintiff/wife on the tombstone. She took objection to this and also to the misspelling of the name of Mirandha and asked the first, second and third defendants to consent to the change so that the tombstone would contain her name as well. She did not propose that the words "Our dear son and brother" be left off but rather that they appear as "dear son and brother" with the words "Loving husband of Michelle, beloved father of Mirandha, Dean and Jake, dear son and brother" appearing on the stone which she wished to substitute. 8 There was correspondence between Messrs Stacks, the solicitors for the plaintiff, and the defendants and so far as the third defendant was concerned, with the Legal Aid Commission of New South Wales acting for Mrs Helen Brikha, they representing her in some application for access to the children of the marriage in the Family Court of Australia. 9 In any event, the Legal Aid office stated that Mrs Brikha had no problem about the removal of the headstone and changes provided that the plaintiff met the costs and, subsequently, the Legal Aid office wrote by letter of 3 August 1999 responding to letters written to all the family on 21 July 1999 stating that: "The Brikha family has asked our office to reply on their behalf and notify you that they agree to the amendments as proposed by your client. If we could be of any assistance to put this agreement into effect, please do not hesitate to contact us. Otherwise you can contact Mrs Brikha directly". 10 Since that date there has been little action. Messrs Stacks forwarded a draft agreement to each of the first, second and third defendants but that was never signed and the proceedings were instituted as a result of the failure to sign an agreement which presumably would have put into effect the less formal agreement reached by correspondence. I should say, however, that the draft agreement which the evidence establishes was sent by Messrs Stacks to the family defendants is not in evidence. 11 The plaintiff seeks a declaration that she is the holder of the right of burial of the deceased; that in so far as this would appear to be in the name of Maroun Brikha that it is held in trust for her, and that the fourth defendant, being the trustees of the Rookwood Anglican Cemetery do whatever is necessary to transfer the right of burial to the plaintiff. Those trustees, through their solicitor, have written stating that they will submit to any orders made by the Court as they wish to avoid any costs and, presumably, do not wish to be involved in any family dispute. 12 The third defendant has been served. The first defendant has been served sufficiently in accordance with the order for substituted service. There is no evidence as to service on the second defendant but as no orders are sought against him that does not matter. 13 The relevant law on this subject has been set out in great detail by Young J in Smith v Tamworth City Council (1997) 41 NSWLR at 680. It is clear from that case that the right of burial belongs to the plaintiff unless she has assigned it or disposed of it in some way. In my view it is clear that she has not done so. What she did was to authorise the family at a time when she was under considerable pressure from them to arrange for the burial to take place at Rookwood rather than at Tuncurry. Thus, so far as any right of burial or right to a burial plot pursuant to s24 of the Necropolis Act 1901 is held by the first defendant, it must be held on trust for the plaintiff. 14 If that order is made then as the right of burial would be held by the first defendant as bare trustee for the plaintiff, there is no reason why an order should not be made under which the fourth defendant will give effect to the legal position and vest the right of burial in the plaintiff as it is willing to do if the court so determines. 15 The plaintiff will then be able to change the tombstone to the wording which it is perfectly clear has been agreed between her solicitors and the other members of the family. 16 I should say that while she will have the orders she seeks, the tombstone which she erects should be erected at her cost, that being the agreement which she said had been made.