Boni v Larwood - [2014] SASC 185

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
BONI v LARWOOD & ORS
[2014] SASC 185
Reasons of Judge Withers a Master of the Supreme Court
8 December 2014
HEALTH LAW - BURIAL AND CREMATION - BODIES AND GRAVES
HEALTH LAW - BURIAL AND CREMATION - OTHER MATTERS
MEMORIALS - GRANTEE RIGHTS
Application by one of four executors to change existing wording on a headstone.
Burial and Cremation Act 2013 (SA) s 39, referred to.
Smith v Tamworth City Council (1997) 41 NSWLR 680; Leeburn v Derndorfer [2004] VSC 172; Ralston v Ralston [1930] 2 KB 238, considered.

BONI v LARWOOD & ORS
[2014] SASC 185

JUDGE WITHERS. The plaintiff instituted these proceedings by summons filed on 10 July 2014. On the same day the plaintiff filed an interlocutory application seeking the same relief as that sought in the summons. That relief is as follows:
1.That the headstone marking the burial site of the deceased Maurizio Mariano Davide Boni (“the deceased”) situated at Payneham Cemetery Marian Road, Payneham in the state of South Australia be corrected to refer to the Plaintiff, the son of the deceased as “David” (“the Works”).
2.That the works be carried out by a reputable stonemason selected by unanimous resolution of the executors of the estate of the deceased, or in the absence of such a resolution, selected by the Court.
3.That the costs of the works be borne by the Estate of the deceased.
4.That the costs of and incidental to this application be borne by the Estate of the deceased.
The interlocutory application seeking those orders was made pursuant to Rules 83 and 206 of the Supreme Court Civil Rules 2006 (SA). Rule 83 provides for representative actions by or against executors, administrators and trustees. Rule 206(1) provides as follows:
206 (1) In an action related to a trust or deceased estate, the Court may (if it thinks fit) determine questions arising in the action without making an order for administration.
In support of the summons and application, the plaintiff relied on an affidavit filed by him on 10 July 2014 (FDN 3).
The defendants to the plaintiff’s action are the sisters of the plaintiff. Together with the plaintiff they comprise the four children of Maurizio and Celestina Boni. They are the executors of Maurizio’s estate. Their parents were married in Italy in 1961, having both been born in 1935. They migrated to Australia in 1966. The family thereafter lived in Maylands. There were four children of the marriage. They comprise the first defendant, who was born in 1963 (“Lucy” or “Lucia”), the second defendant born in 1966 (“Sara”), the plaintiff, being the only male child, born in 1968 (“David”), and the third defendant born in 1970 (“Nadia”). Maurizio worked on the production line at Chrysler and Celestina worked as a part-time cook at Kmart.
The defendants opposed the orders sought by the plaintiff. In support of that opposition an affidavit of the third defendant Nadia was filed on 26 September 2014…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Boni v Larwood

Details

AGLC: Boni v Larwood [2014] SASC 185
Case: [2014] SASC 185
Decision Date: 8 December 2014

CaseChat Overview and Summary

The case of Boni v Larwood was heard in an Australian court where David Boni, the plaintiff, sought an injunction against the defendants, Nadia, Sara, and Lucia Larwood, to prevent them from changing the name on their mother's headstone from "Davide" to "David." The dispute arose from the plaintiff's contention that the name "Davide" was used by his father during episodes of abuse and that seeing it on the headstone caused him significant distress. The court had to determine whether the defendants had the right to change the headstone's inscription and whether the plaintiff's distress warranted any form of legal remedy.

The court needed to decide if Maurizio, the father, had the sole right to determine the headstone's wording when he held the sole grant of interment rights. Additionally, the court had to assess whether David's emotional distress was sufficient to warrant an injunction preventing the name change. The court considered statutory provisions and case law regarding the rights of individuals over burial plots and memorials. The court also weighed David's personal distress against the defendants' rights as the current owners of the interment rights.

The court concluded that Maurizio was entitled to determine the wording on the headstone when he held the sole grant, and thus, it was his decision to inscribe "Davide." The court found that the defendants were within their rights to change the headstone to "David" once they acquired the sole grant. Although the court sympathised with David's emotional distress, it ruled that the action had to be determined according to the facts and applicable law. Consequently, the court dismissed the plaintiff's application, noting that it did not preclude the family from reaching an amicable agreement in the future.

In summary, the court dismissed David's application and ruled that the costs of the action would likely be borne by him. The decision left the door open for the family to resolve their differences amicably, given the shared history and the recent deaths of both parents.

Orders

Orders of the court

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Background

Background to the litigation

The defendants opposed the orders sought by the plaintiff. In support of that opposition an affidavit of the third defendant Nadia was filed on 26 September 2014 (FDN 5). Affidavits were filed from the second defendant Sara (FDN 6), which largely verified the truth of Nadia’s affidavit, and Lucia (FDN 7), the first defendant, who also expressed her agreement with the bulk of Nadia’s affidavit. Both the first and second defendants excluded some paragraphs of Nadia’s affidavit from their support as they related to matters of which they had no direct knowledge.Background I shall hereafter refer to family members by their first names. No disrespect is intended. The plaintiff David was born on 15 April 1968. In his birth certificate, which is Exhibit “DB1” to his affidavit (FDN 3), his christian name is recorded as David. It is apparent from the affidavit of Nadia (FDN 5) that he was baptised in the name Davide. She attests that to be the name used by her parents, who usually spoke to the children in Italian. I note that one of Maurizio’s names was Davide. The plaintiff attests that he attended school until 1988 and then went to Flinders University to study for a Bachelor of Education. The outcome of that study is not given. He describes his mother as a loving person. He asserts that his father was often withdrawn and prone to fits of violence and rage directed towards him, his mother, and to the first defendant. In his affidavit at paragraph 12 he describes being abused by his father when he was a child. He says that the abuse was both physical and verbal. He describes having his legs “stomped on”. He describes being beaten with a belt and being hit with the open hand. He has a belief that his father tried to kill him twice with a knife – see paragraphs 13 and 14 of his affidavit. David says in his affidavit that his mother called him David but that his father always called him Davide during episodes of abuse. He says that his sisters and others called him David. In 1996 at age 28 he moved to Melbourne. Thereafter he only spoke to his father at Easter and at Christmas but spoke to his mother on a weekly basis. His mother died in April 2007, after she was diagnosed with cancer in September 2006. David says that he was devastated by her death. He stayed in Adelaide for two weeks after her death to provide support to his sisters and to receive comfort from friends. He did not speak to his father during that time. His mother was buried in a jointly owned double cemetery plot at Payneham Cemetery. A headstone was subsequently erected on the grave by his father. David says that he was not consulted about the wording on the headstone. He describes going to the grave for a blessing of the headstone. In his affidavit he records this as occurring at around Christmas 2007 but accepts that it could have been 28 October 2007 as attested by other deponents. He saw that on the headstone his name had been spelt “Davide”. This, he says, caused him to immediately recall feelings of fear, helplessness and horror. A photograph of the blessing was taken and is exhibited to the affidavit of Nadia as Exhibit “NT-02” (FDN 5).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Maurizio was entitled to determine the wording on the headstone when he held the sole grant. It was his decision and his right to then describe the plaintiff as Davide. Conclusion The plaintiff’s claim is one that attracts some sympathy. However, this action must be determined according to the found facts and applicable law. For that reason there will be an order that the plaintiff’s action be dismissed. This order does not prevent the family, and in particular the owner of the interment rights and memorial, from accommodating the plaintiff in the future by agreement. This is a matter where the parties as children of Celestina and Maurizio might give consideration to the fact that their parents are now both deceased. They are the surviving family members. There would be value and commonsense in endeavouring to restore an amicable relationship between them in the future. However, that will be a matter for the parties after the heat of this action has dissipated. For the foregoing reasons, the plaintiff’s application is dismissed. I will hear the parties as to costs if necessary, but my present view is that the costs follow the event and in those circumstances the plaintiff will likely be liable to pay the defendants’ costs of and incidental to the action.

Ratio Decidendi

Legal Principle Established

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