Vosnakis v Arfaras [2015] NSWSC 625

Supreme Court New South Wales

Medium Neutral Citation: Vosnakis v Arfaras [2015] NSWSC 625 Hearing dates: 29 September 2014 and 13 November 2014 Date of orders: 26 May 2015 Decision date: 26 May 2015 Jurisdiction: Equity Division Before: Robb J Decision: The parties are invited to bring in short minutes of order to implement these reasons, primarily as set out in par 165 Catchwords: HEALTH LAW – burial – the defendant held a burial licence permitting two people to be buried in the plot – the defendant, the deceased's mother, allowed the plaintiff, the deceased's husband, to arrange for the deceased to be buried in this plot – promise by defendant to transfer the burial plot and all rights associated with it to the plaintiff such that the plaintiff could be buried with his wife in the future CONTRACTS – whether the promise to transfer the burial licence constitutes a legally binding and enforceable contract – no mutual promises capable of being a binding contract between the parties – parties did not objectively intend to create legally binding relations – no binding contract ESTOPPEL – whether the defendant is estopped from denying the agreement in respect of the transfer of the title of the burial licence – defendant induced plaintiff to exercise his right of burial – the defendant then refused to honour her promise – legal exhumation is not something the Court will readily impose – no significant detriment to defendant if she fulfils her promise – plaintiff suffered detriment by exercising his right to determine how the deceased should be buried to bury her in the defendant's burial plot – circumstances give rise to estoppel Legislation Cited: Botany Cemetery and Crematorium Act 1972 (NSW) Cemeteries and Crematoria Act 2013 (NSW) Conveyancing Act 1919 (NSW) Crown Lands Consolidation Act 1913 (NSW) Crowns Lands Act 1989 (NSW) Land Acquisition (Just Terms Compensation) Act 1991 (NSW) Local Government Act 1919 (NSW) Public Health Regulation 2012 (NSW) Cases Cited: Ashton v Pratt (No 2) [2012] NSWSC 3 Beard v Baulkham Hills Shire Council (1986) 7 NSWLR 273 Cowell v Rosehill Racecourse (1937) 56 CLR 605 Darmanin v Cowan [2010] NSWSC 1118 Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; (2002) 209 CLR 95 Escott v Brikha [2000] NSWSC 458 Evans v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] FCAFC 81; (2012) 289 ALR 237 Gilbert v Buzzard (1820) 3 Phillim 335; 161 ER 1342 Giumelli v Giumelli [1999] HCA 10; (1999) 196 CLR 101 Rutherford v Wallace [1999] NSWCA 299 Smith v Tamworth City Council (1997) 41 NSWLR 680 Vukic v Grbin [2006] NSWSC 41 Watson v Foxman (1995) 49 NSWLR 315 Category: Principal judgment Parties: Joseph Vosnakis (plaintiff) Aristea Arfaras (defendant) Representation: Counsel: G M McGrath (plaintiff) S J Stanton/M B Holmes