Kovac v Chanak [2017] NSWSC 1023

Supreme Court New South Wales

Medium Neutral Citation: Kovac v Chanak [2017] NSWSC 1023 Hearing dates: 4, 5, 6, 31 July 2017 Decision date: 31 July 2017 Before: Kunc J Decision: Orders to be made for transfer of burial licences Catchwords: ESTOPPEL — Promissory estoppel — Burial plot licences — Relief Cases Cited: Arfaras v Vosnakis [2016] NSWCA 65 Beard v Baulkham Hills Shire Council (1986) 7 NSWLR 273 Vosnakis v Arfaras [2015] NSWSC 625 Walton Stores v Maher (1988) 164 CLR 387; [1988] HCA 7 Category: Principal judgment Parties: Ljubica Kovac (Plaintiff)

George Milan Chanak (Defendant) Representation: Counsel: G McGrath (Plaintiff) S F Hughes (Defendant)

Solicitors: Yuill Lawyers (Plaintiff) Wilshire Webb Staunton Beattie (Defendant) File Number(s): 2015/268927 Publication restriction: No

EX TEMPORE Judgment (REVISED)

Summary 1. On 22 June 2012, Jovan Kovac ("Jovan") was buried in plot 033-J-COE ("plot 33") at Mona Vale Cemetery (the "Cemetery"). At the time, the Cemetery was under the control of what was then known as Pittwater Council. 2. Jovan's burial in plot 33 took place with the consent of the defendant, George Chanak, Jovan's first cousin. Without disrespect, I shall refer to the various family members involved in these proceedings by their given names. 3. George holds the burial licence for two adjacent plots: plot 33 and plot 34 (the "Licence"). Jovan's father, Milan, is buried in plot 32. Putting matters neutrally, there is no doubt that George offered to facilitate Jovan's wish to be buried next to his father by offering to allow Jovan to be buried in plot 33. The dispute between the parties is whether, shortly before Jovan's death, George offered to transfer plot 33 and plot 34 to the plaintiff, Ljubica Kovac ("Libby"), so that one day Jovan's wife, Nada, could be buried in plot 34 next to Jovan. Libby is Jovan and Nada's daughter and the executrix of Jovan's estate. 4. There was no real dispute between the parties about the applicable law. The rights created by the Licence are contractual rather than proprietary: Beard v Baulkham Hills Shire Council (1986) 7 NSWLR 273. Otherwise the law in relation to burial licenses and estoppel has recently been exhaustively considered in the factually similar decision of the Court of Appeal in Arfaras v Vosnakis [2016] NSWCA 65 (per Ward JA; Beazley P and Simpson JA agreeing), upholding the decision of Robb J in Vosnakis v Arfaras [2015] NSWSC 625. The parties accepted that this case would primarily fall to be determined on the facts. 5. The parties' versions of events were diametrically opposed and each side denied the other's version of the critical conversations. No one departed from their evidence under cross-examination. Libby and four other members of the Kovac family gave evidence that George had represented to Libby that he was giving her plots 33 and 34. On the other hand, George, supported by his daughter, Rebecca, said that all he had done was to grant Jovan's dying wish to allow Jovan to be buried next to his (Jovan's) father. 6. There was only one independent witness, Mr Christopher Lee, the funeral director, who was called in Libby's case. However, he was not present when any of the critical conversations took place. 7. For the reasons which are set out in paragraphs [46] to [68] below, I have come to a firm view that the evidence of Libby's witnesses is to be preferred over that of George and Rebecca. The Court is satisfied that in the days prior to Jovan's death in June 2012, George represented to Libby that he would give the two plots to Libby. In reliance on that representation Libby arranged for Jovan to be buried in plot 33. 8. George has refused to transfer the Licence, but has consented to George being exhumed if that is Libby's wish. By reason of the application of the principles of equitable estoppel the Court will order George to transfer the Licence to Libby. 9. Mr G McGrath of Counsel appeared for Libby. Mr S F Hughes of Counsel appeared for George. The Court is indebted to them for the efficient way in which they conducted the proceedings and presented the arguments, including by helpful and extensive written submissions. Those submissions, in particular, have enabled the Court to deal with the matter immediately by these ex tempore reasons.