Chipizubov v Elias

[2025] NSWSC 326

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Chipizubov v Elias [2025] NSWSC 326

Hearing dates:

18, 21, 25 March 2025

Date of orders:

27 March 2025

Decision date:

07 April 2025

Jurisdiction:

Equity - Duty List

Before:

Meek J

Decision:

Orders for appointment of an interim administrator to have carriage of burial of the deceased’s body, initial acquisition of interment rights on behalf of the estate and to deal pro tem with the property of the deceased (including collecting and preserving estate assets, payment of debts and other specified matters). Orders made without prejudice to a later contest over ultimate entitlement to interment rights.

Catchwords:

SUCCESSION — Burial Rights — Sudden death — Deceased whilst swimming suffered distress and was brought to shore but unable to be revived — Intestacy — Deceased held Russian Orthodox faith — Dispute between the plaintiff (deceased’s brother and only sibling) and the defendant (who claims to be the deceased’s “spouse” for intestacy purposes) in relation to carriage of funeral arrangements and acquisition of permanent interment rights

SUCCESSION — Burial Rights — Case management — Parties seek determination regarding carriage of burial and acquisition of perpetual interment rights — Burial and initial acquisition of interment rights immediately addressed — Ultimate interest of the parties in rights of interment (perpetual or otherwise) separated from abovementioned preliminary matters — Orders for appointment of an interim administrator for expeditious dealing with custody of the deceased’s body and property and, in particular, carriage of burial of the deceased’s body, acquisition of initial interment rights without prejudice to ultimate determination of entitlement to rights of interment

SUCCESSION — Burial rights — Practical guidance for dealing with disputed claims regarding custody of the deceased’s body, burial arrangements and acquisition of interment rights

SUCCESSION — Interment rights — Types of interment rights explained — Differences between perpetual and renewable interment rights — Difference between pre-need rights and at-need rights — Discussion of means of acquisition and granting of interment rights — Discussion of content of interment rights and terms of interment right Model Contracts — Nature of joint holding rights explained — Discussion of transfer, gifting and other disposal of interment rights

SUCCESSION — Interment rights — Discussion of regime for dealing with interment rights under Cemeteries and Crematoria Act 2013 (NSW) and Cemeteries and Crematoria Regulation 2022 (NSW) — Discussion of reform proposals and Interment Industry Scheme

Legislation Cited:

Cemeteries and Crematoria Act2013 (NSW)

Interpretation Act 1987 (NSW)

Probate and Administration Act1898 (NSW)

Relationships Register Act 2010 (NSW)

Succession Act 2006 (NSW)

Cemeteries and Crematoria Regulation 2022 (NSW)

Cases Cited:

Arfaras v Vosnakis [2016] NSWCA 65; (2016) 14 ASTLR 397; (2016) 18 BPR 35,819

Brown v Weidig [2023] NSWSC 281; (2023) 22 ASTLR 386

Dayman v Dayman [2024] NSWSC 838

Plaintiff S164/2018 v Minister for Home Affairs [2018] HCA 51; (2018) 361 ALR 8

State of New South Wales v Gill [2024] NSWSC 1263

Vosnakis v Arfaras [2015] NSWSC 625

Texts Cited:

Carlyle, Thomas, Characteristics (1877, J. R. Osgood)

Cemeteries and Crematoria NSW, Fact Sheet: A new interment rights system in NSW (NSW Department of Industry, November 2017, PUB17/801)

Cemeteries and Crematoria NSW, Fact Sheet: Interment Industry Scheme – implementation and transition (Version 4 June 2023, DOC22/276568)

Cemeteries and Crematoria NSW, Fact Sheet: Interment Industry Scheme – licensing and categorisation (Version 4 August 2023, DOC22/276611)

Cemeteries and Crematoria NSW, “Interment Industry Scheme Licensing” (Webpage) (see endnotes for accessible link)

Cemeteries and Crematoria NSW, “Licence Conditions for Operators of Cemeteries and Crematoria” (V2.5 June 2024)

Cemeteries and Crematoria NSW, “Model contract for sale of a renewable interment right for category 1 and 2 operations”

Cemeteries and Crematoria NSW, “Model contract for sale of a perpetual interment right for category 1 and 2 operations”

Cemeteries and Crematoria NSW, “Review of the Cemeteries and Crematoria Act 2013” (Discussion Paper, October 2024)

Commencement proclamation 2018-274

New South Wales Legislative Assembly, Parliamentary Debates, 23 October 2013

Category:

Principal judgment

Parties:

Nicholas Chipizubov (Plaintiff / Cross Defendant)
Jessie Elias (Defendant / Cross Claimant)

Representation:

Counsel:
L Ellison SC (Plaintiff / Cross Defendant)
T Morahan (Defendant / Cross Claimant)

Solicitors:
Galluzzo Lawyers (Plaintiff / Cross Defendant)
Saile Law (Defendant / Cross Claimant)

File Number(s):

2025/58400

JUDGMENT

Introduction

1. HIS HONOUR: Tragically, on 3 February 2025, Leonid Chipizuboff, also known as Leon, (the deceased) died aged 52 at Narrawalle beach, unable to be revived after he had been taken from the water following distress during an afternoon swim with the defendant. ^[1] His body is currently held at a location in Wollongong under the custody of the Coroner at Milton.

   1. Transcript (T), 18 March 2025, 2; Court Book (CB) 44 [23].

2. That tragedy has been compounded by dispute between the plaintiff (Nicholas or the plaintiff), who is the deceased’s brother, and the defendant (Jessie or the defendant) who claims to have been the deceased’s de facto spouse at the time of his death regarding entitlement to custody of the deceased’s body for the purpose of taking carriage of his burial and entitlement in interment rights in respect of a burial allotment. The deceased appears to have died intestate leaving no exclusive written mandate to any party to attend to his burial.

3. Mercifully, a majority of families agree without fuss on burial arrangements and interment entitlements. However, sadly, in other families, such matters give rise to conflict which amplifies and requires court attention, confirming Thomas Carlyle’s comment, “Unity, agreement, is always silent or soft-voiced; it is only discord that loudly proclaims itself.” ^[2]

   2. Thomas Carlyle, Characteristics (1877, J. R. Osgood) at 4.

4. Poignant disputes such as the present one often arise in acute circumstances. They are frequently attended by strongly competing views as to the parties’ entitlements enlivened in a context of initial shock to the deceased’s sudden death and rapidly evolving stages of grief of the parties and those associated with the deceased.

5. In circumstances briefly recounted below, the defendant took the initiative of seeking to approach the Court urgently for burial and interment right relief, initially by referral from the Probate Registrar to myself as Duty Judge on 18 March 2025 with Mr Morahan of counsel appearing for Jessie and, on that occasion, Ms Pringle of counsel (who does not hold the substantive brief in the matter) appearing for Nicholas. There have been two further listings before me on 21 and 25 March 2025 with Mr Morahan continuing to appear for Jessie and Mr Ellison SC appearing for Nicholas.

6. On 18 March 2025, counsel expressed imperatives of dignity and tenets of the deceased’s Russian Orthodox faith to have his body buried as quickly as possible. Mr Morahan indicated that there was a complication to that being done during Lent, though noted that it could be effected with certain dispensations. ^[3] In particular, Mr Morahan indicated that Jessie had provisionally acquired rights of interment in an allotment in the Russian Orthodox section of Rookwood Cemetery. He contended that the acquisition could not be finalised as Nicholas refused to jointly sign documentation to enable the Coroner to release the deceased’s body unless he was promised certain matters in relation to a joint perpetual right of interment. ^[4]

   3. T, 18 March 2025, 3.12-.19.

   4. T, 18 March 2025, 6.7-.32.

7. It seemed to me that there was no necessary reason why any ultimate interest of the parties in rights of interment (perpetual or otherwise) had to be addressed urgently and could not be separated from matters which required expeditious attention regarding carriage of the burial and initial acquisition of rights of interment on behalf of the estate. This is particularly so, as contestable claims to ultimate interest in rights of interment are not easily able to be dealt with within a Duty List and may delay ensuring an expeditious and dignified carriage of burial of the deceased’s body.

8. Each of the parties sought to advance claims to burial and interment rights either exclusively or at least jointly but have been frustrated in so doing by what they perceived to be the lack of cooperation and competing claim of the other. Notwithstanding that, certain steps, including a “First Day Memorial Service” ^[5] church service on the evening of 4 February 2025 ^[6] have been undertaken ostensibly on a presumptive or purported right to do so.

   5. CB 87 [22].

   6. CB 57 [19], 60 [37].

9. On the initial referral of the matter to me as Duty Judge, Mr Morahan proposed that there be a determination of entitlement to possession of the deceased’s body for burial and a special grant of administration to the defendant for that purpose. ^[7] Jessie’s legal representatives had prepared a Court Book ^[8] extending to 3 volumes of materials over 750 pages in length. Even in this nascent stage of the proceedings, costs on the defendant’s side alone have escalated alarmingly with her solicitor estimating that she has incurred about $70,000 in fees relating to the urgent and interim relief sought by her. ^[9]

   7. T, 18 March 2025, 4.2-.5.

   8. T, 18 March 2025, 3.1.

   9. CB 98 [16].

10. Fortunately, following some provisional observations by myself through the 3 listings, a solution has now been able to be reached dealing with the immediacy of questions regarding the burial and acquiring of perpetual interment rights. ^[10] I will address below the principles relating to interment rights.

    10. T, 21 March 2025, 2, 3.

11. Prior to doing so, for the benefit of practitioners and families faced with burial conflicts and, in the hope of averting or at least minimising future disputes, I will make some practical observations which hopefully will provide some guidance for future matters. The observations particularly apply to circumstances in which there is an intestacy and there is no clear mandate for any person to have carriage of a burial and the acquisition of interment rights. Nonetheless, the observations will likely have the effect of generally informing the resolution of disputes involving custody of a deceased’s body for the purposes of burial or cremation, acquisition of interment rights, the distribution of ashes or other associated issues (which I will categorise by the descriptor burial disputes) which arise in urgent circumstances.

Practical guidance

12. First, frequently, issues regarding carriage of disposal of a deceased person’s body, whether by burial or cremation, are ventilated by parties and legal practitioners through proceedings for a grant of probate or administration of the deceased’s estate. However, jurisprudentially, the law governing the disposal of deceased bodies in contemporary Australian society has been said to occupy a unique space on the periphery of the law of succession, occupying a gap between the protective and probate jurisdictions where it is ancillary to both and not entirely part of either. ^[11] The Court has inherent jurisdiction, without a grant of probate or administration, to make orders governing disposal of a deceased’s body. ^[12]

    11. Brown v Weidig [2023] NSWSC 281; (2023) 22 ASTLR 386 (Weidig) at [29]; Dayman v Dayman [2024] NSWSC 838 (Dayman) at [74].

    12. Weidig at [24].

13. Secondly, the highly sensitive and personal nature of the burial disputes jurisdiction is such that court imposed or directed solutions will or may tend to deeply disappoint one or more of the disputing parties associated with the deceased. It has been rightly said that the law governing the disposal of a dead body works best when there is a consensus or accord (at least in part) about what is to be done or at least an acquiescence on the part of those who might reasonably be thought to have a right to object ^[13] or have an interest in a burial dispute outcome. Ideally, discussions leading some degree of consensus between contesting parties as to certain of the orders proposed to be made will facilitate the expeditious and dignified disposal of the deceased’s remains. Further, the fact that voices have been able to be heard through discussion leading to some harmonious accord may collaterally act as a salve for some or more of the grieving disputants.

    13. Weidig at [36].

14. Thirdly, not all burial disputes are instigated closely following the deceased’s death. ^[14] However, many such disputes are brought on urgently. In the context of a claim for urgent relief in the Equity Duty List, parties and practitioners will need to be mindful that certain of the Court’s decision-making will occur in a context in which there is often little opportunity for testing of evidence by cross-examination.

    14. For example, State of New South Wales v Gill [2024] NSWSC 1263 where the summons was filed 32 months after the death of the deceased.

15. Fourthly, parties and practitioners should give well-considered thought to what material is placed before the Court. Expeditious and just hearings may be hindered by parties providing the Court with voluminous material.

16. Fifthly, there is a practical imperative for the parties and practitioners to distinguish between what is truly urgent for the Court to decide and what may be appropriately decided at a later point of time. However, the distinction between what is truly urgent and what may be deferred for a time does not necessarily reflect the distinction between interlocutory and final relief. ^[15]

    15. As to the distinction between final and interlocutory relief, see for example Plaintiff S164/2018 v Minister for Home Affairs [2018] HCA 51; (2018) 361 ALR 8 per Edelman J at [11].

17. Sixthly, there is a certain core of non-partisan material that should be provided to the Court to facilitate timely decisions which allows a body to be disposed of in an orderly way, respecting the dignity of the deceased and those associated with the deceased. Thus, it is important, for the parties to identify at the earliest possible stage and place before the Court basic information including:

1. the current custodian of the body and its location (whether it be with the Coroner or some other party);

2. the names of the persons who may reasonably be expected to have an interest in the burial dispute, whether such interest arises by means of an asserted legal entitlement, as a next of kin, family member or otherwise;

3. basic details as to the property forming part of the deceased’s estate including whether there is available funding for disposal of the body and expenses associated with an interim administrator, and whether the deceased has any existing interment rights;

4. the availability, suitability and charging rates of potential independent interim administrators;

5. matters bearing upon the logistics of securing the release, custody and transport of the body, particularly if the deceased has died in suspicious circumstances or other circumstances which might require post-mortem examination ^[16] or if the deceased died interstate or at a remote location within the State;

   16. Sometimes referred to as an “autopsy”.

6. the wishes or preferences, whether they be spiritual, cultural or otherwise, of the deceased regarding custody and disposal of his or her mortal remains, including any expressed desire for the body to be donated for science or other medical research, and more generally regarding the appointment of funeral directors and carriage of any burial or cremation and other wishes regarding interment of the body;

7. the wishes or preferences of family members and others associated with the deceased, including any relevant community in which the deceased lived, regarding the disposal of the deceased’s body; ^[17]

8. whether any funeral directors or other relevant parties have been pre-appointed or otherwise engaged to have carriage of the disposal of the deceased’s body;

9. the availability, estimated cost and other relevant details in respect of funeral directors, priests or other persons proposed to perform or authorised to perform certain rights, administer sacraments or otherwise conduct funeral or memorial services;

10. the availability, estimated cost and other relevant details in respect of location of burial allotments and other rights of interment at cemeteries and crematoria; and

11. any impediments or other restraints on the accessibility of the deceased’s mortal remains to mourners or others at the proposed final resting place for the deceased’s bodily remains or ashes.

    17. See Weidig at [38].

18. Seventhly, notwithstanding the natural desire of various family members to be involved in relation to custody of the body, carriage of burial or cremation and acquisition of rights, practically speaking, solutions proposed by parties involving joint appointments or co-responsibility for such matters are fraught with difficulty. Experience shows that it is often vain hope for the Court to expect that disputing parties dealing with such sensitive matters to be able to work co-operatively or do so without further unseemly dispute, complication and cost, which either compromises or jeopardises the dignified disposal of the deceased’s remains.

19. Eighthly, at least for the above reasons, the appointment of an independent interim administrator (often an experienced succession law practitioner) is usually a commendable outcome to address the immediacy of dealing with securing custody of the body and carriage of burial and funeral arrangements.

20. Ninthly, if an interim administrator is to be appointed, to deal with “burial issues”, that person must generally be appropriately funded from estate assets (if there be any). For that reason, the extent of the powers of administration which are granted to the interim administrator should include powers dealing not merely with the body of the deceased but also the property of the deceased.

21. Tenthly, whilst, as will be seen below, a right of interment is a form of personal property which will form part of a deceased’s estate, the powers given to the interim administrator can appropriately extend to acquiring rights of interment on behalf of the estate. There is generally no compelling reason why the ultimate entitlement of the parties in such rights of interment need to be finally determined in the context of an urgent Duty List.

22. Eleventhly, in light of the prior observation, legal practitioners and the parties should seek to identify mechanisms to address the immediacy of the dignified disposal of the deceased’s body, leaving for separate and later determination questions of ultimate entitlement to interment rights.

23. Lastly, parties and legal practitioners should be mindful of attempting to keep costs associated with burial disputes within reasonable bounds.

Interment rights

24. Much of the law regarding interment rights is regulated by statute, specifically under Part 4 of the Cemeteries and Crematoria Act2013 (NSW) (CCA) and Part 3 of the Cemeteries and Crematoria Regulation 2022 (NSW) (CCR). The CCA commenced on 24 October 2014. A new interment rights system was created by Part 4, which came into force upon Part 4 commencing on 25 June 2018. ^[18]

    18. Commencement proclamation 2018-274.

Cemeteries and Crematoria Act 2013 and reform

25. The objects of the CCA are set out in s 3 as follows

The objects of this Act are as follows—

(a) to recognise the right of all individuals to a dignified interment and treatment of their remains with dignity and respect,

(b) to ensure that the interment practices and beliefs of all religious and cultural groups are respected so that none is disadvantaged and adequate and proper provision is made for all,

(c) to ensure that sufficient land is acquired and allocated so that current and future generations have equitable access to interment services,

(d) to provide for the operation of a consistent and coherent regime for the governance and regulation of cemeteries and crematoria,

(e) to ensure that the operators of cemeteries and crematoria demonstrate satisfactory levels of accountability, transparency and integrity,

(f) to ensure that cemeteries and crematoria on Crown land are managed in accordance with the principles of Crown land management specified in section 1.4 of the Crown Land Management Act 2016,

(g) to promote environmental sustainability of the interment industry, including provision for natural and private burials,

(h) to promote that cost structures for burials and cremations are transparent across all sectors of the interment industry,

(i) to promote affordable and accessible interment practices, particularly for those of limited means.

26. Cemeteries and Crematoria NSW (CCNSW) is a body corporate that was constituted under the CCA. ^[19] It is otherwise known as the Cemeteries Agency ^[20] (Agency). All decisions relating to the functions of the Agency are made by or under the authority of the Board of CCNSW. ^[21] The functions of the Agency are enumerated in the CCA. ^[22] The functions include:

(d) to develop, approve and promote codes of practice for cemeteries and crematoria and report on adoption of those codes by the interment industry,

(e) to provide advice or make recommendations to the Minister on the establishment, implementation or alteration of interment industry schemes,

(f) to regulate the provision of services in relation to interment matters that are subject to interment industry schemes,

(g) to keep under review the policies, operating procedures and activities of the interment industry, including cemeteries, crematoria, providers of funeral goods and services, and operators of funeral funds,

19. CCA s 6.

20. See CCA dictionary - "Cemeteries Agency" means Cemeteries and Crematoria NSW.

21. See CCA subs 8(1), dictionary - "Board" means the Board of Cemeteries and Crematoria NSW.

22. CCA s 12.

27. The “interment industry” is defined for the purposes of the CCA as being “cemetery operators, funeral directors, funeral funds within the meaning of the Funeral Funds Act 1979 (NSW) and any other persons, or persons of a class, prescribed by the regulations”. ^[23]

    23. CCA s 26.

28. Significant aspects of the regulation involve:

1. the creation of a Cemeteries and Crematoria Register ^[24] (Register);

2. allowing ^[25] for codes of practice ^[26] to be developed and approved by the Agency, either on its own initiative or in collaboration with other participants within the interment industry to provide guidance on any interment matter or other matter encompassed by the objects of the CCA; ^[27] and

3. promulgation of regulations relating to interment industry schemes. ^[28]

   24. CCA s 27.

   25. With some exceptions - see CCA subs 28(2).

   26. CCA ss 28-30.

   27. CCA subs 28(1).

   28. CCA ss 31, 32.

29. A CCNSW Fact Sheet “A new interment rights system in NSW” ^[29] suggests that part of the Agency’s functions is seen as being a type of consumer protection:

What consumer protection exists under the Act?

There are a range of measures provided in the Act to protect consumers at each stage of the interment right process. When granting an interment right to a person, the operator must provide a range of information, a certificate of interment rights and record the information in a public register. Access to information rights (such as the information recorded in the cemetery register) are retained and a process for compensation is established where an interment right is withdrawn by a cemetery operator. There are robust notification processes outlined in the Act before a renewable interment right expires or where a cemetery operator must revoke an interment right.

29. NSW Department of Industry | November 2017 | PUB17/801.

30. The notion of the legal personal representative, family members or others associated with the deceased making arrangements in relation to rights of interment being characterised as “consumers”, at first blush, seems a little incongruous. Nonetheless, such terminology is at least in some respects consistent with legislative reforms introduced in late 2013 with the introduction of the CCA.

31. Some semblance of a broader need for regulation in the industry and protection of those who need to arrange burial of loved ones and interment rights is given in the opening paragraphs of the Second Reading Speech of the Honourable Katrina Hodgkinson (Minister for Primary Industries, and Minister for Small Business). ^[30]

    30. New South Wales Legislative Assembly, Parliamentary Debates, 23 October 2013 (Hansard) at 24749.

32. A clear purpose of the CCA was to address issues consequent upon fragmented management of the interment industry. Cemeteries and crematoria were being independently managed by various different state agencies, local government, public and religious trusts, community and other organisations, and private companies. Management of some public cemeteries was further divided based on denominational portions. ^[31] It was said that: ^[32]

These complex and varied arrangements make it difficult to compile accurate information on burial rates and the number of available burial sites, along with the difficulty in determining the best use of available cemetery space.

31. Hansard at 24749-24750.

32. Hansard at 24750.

33. The Minister stated: ^[33]

.. the provisions of the bill that provide for strategic oversight and regulation of the interment industry in New South Wales for the first time. This function will be performed by the Cemeteries Agency, Cemeteries and Crematoria New South Wales. The Cemeteries Agency will sit across all three cemetery sectors—the Crown, local government and private cemeteries—and have the power to require managers and operators to act in the best interests of the people of New South Wales.

33. Hansard at 24751.

34.  In relation to codes of practice, the Minister stated: ^[34]

Codes of practice will provide direction and guidance to the industry and may cover any matters related to cemetery and crematorium management, or other matters encompassed by the objects of the Act. Codes must be developed in consultation with all relevant stakeholders, in particular those to whom the code would apply. The concurrence of other portfolio Ministers will also be required in certain circumstances. The Cemeteries Agency will be responsible for ensuring public access to approved codes and reporting on their adoption by the industry. The Cemeteries Agency will work closely with the interment industry to build industry-wide consensus and support for voluntary solutions to identified problems. If voluntary approaches do not achieve the intended outcomes, the legislation enables the agency to develop and implement mandatory measures known as interment industry schemes, to be introduced by regulation.

34. Hansard at 24752.

35. The Minister noted that, “Unsurprisingly, research shows that people wish to bury family and friends within a reasonable distance from their homes to enable regular visits.” ^[35]

    35. Hansard at 24753.

36. A significant issue driving the reforms was expressed concern that within a period of three or four decades, the State of New South Wales would face the very real prospect of having completely exhausted existing burial space. ^[36]

    36. Hansard at 24749.

37. Cognisant of that, the Minister emphasised that an important aspect of the reforms allowed for renewable interment rights to be offered on an optional basis across New South Wales in a context where the then current position was that cemetery renewal process was only available to Crown cemetery operators. ^[37]

    37. Hansard at 24753.

38. In recent years, an Interment Industry Scheme (Scheme) has been created pursuant to the 2022 CCR, setting up a licensing framework for cemetery and crematorium operators. Details about the Scheme are available from the CCNSW website and Fact Sheet “Interment Industry Scheme – licensing and categorisation” issued by CCNSW. ^[38] There are 4 categories of licence for cemetery operators (essentially based on volumes of interments conducted annually). The Agency determines the category of conditions applicable to the licence. The CCR provides that the Agency may impose conditions in relation to various matters. ^[39] Currently there are 7 sets of licence conditions ^[40] (Conditions): A. Consumer Contracts; B. Cemetery Maintenance; C. Pricing Transparency; D. Customer Service; E. Religious Cultural and Spiritual Principles; F. Reporting Obligations; and G. Prohibition of Interment Services.

    38. Fact Sheet DOC22/276611.

    39. Clause 4I(1)(a)-(j).

    40. Cemeteries and Crematoria NSW, “Licence Conditions for Operators of Cemeteries and Crematoria” (V2.5 June 2024) (License Conditions Sheet).The 7 conditions reflect the conditions prescribed by the regulations being cl 4I(1)(a)-(g) in addition to reporting obligations.

39. The Scheme commenced on 14 October 2022 to be implemented progressively to give operators time to transition into the Scheme. ^[41] It was envisaged that by October 2024, all operators will be required to have a licence and be compliant with all Conditions applicable to their category of licence. ^[42] However, there were some delays and the start date for the Consumer Contract, Pricing Transparency and Cemetery Maintenance Conditions was amended from 1 July 2024 to 1 October 2024 to allow more time for industry adjustment. ^[43] As at 1 October 2024, the Scheme became fully operational. ^[44]

    41. Cemeteries and Crematoria NSW, Fact Sheet: Interment Industry Scheme – implementation and transition (Version 4 June 2023, DOC22/276568).

    42. Ibid.

    43. Cemeteries and Crematoria NSW, “Interment Industry Scheme Licensing” (Webpage) accessible here:

    44. Cemeteries and Crematoria NSW, “Review of the Cemeteries and Crematoria Act 2013” (Discussion Paper, October 2024) (Discussion Paper) 4.

40. There are three aspects to the Consumer Contracts licence Conditions. ^[45] First, the operator must comply with pre-contract requirements and ensure Consumer Contracts are transparent and clear. Secondly, the operator must not enter a Consumer Contract unless the Consumer Contract includes key details relating to the interment right. Thirdly, the operator must address certain matters in all Consumer Contracts.

    45. License Conditions Sheet at 10-14: conditions A.1, A.2, and A.3.

41. The key detail in respect to the second aspect are: (a) an agreed statement regarding certain matters; (b) details regarding the interment right; (c) provision of applicable fees and charges; and (d) payment terms. ^[46]

    46. License Conditions Sheet at 11-12.

42. The Condition ^[47] regarding the interment right does not apply to Cremation Only Consumer Contracts. ^[48]

    47. Condition A.2.2.

    48. License Conditions Sheet at 12.

43. The Agreement Statement ^[49] must include:

a. A summary of the agreement between the Customer and Operator, including any special conditions,

b. A declaration by the Operator that the terms and conditions have been explained to the Customer and they have been given time and privacy to consider the Consumer Contract before signing it,

c. A declaration by the Customer that the terms and conditions have been explained to them and they have been given time and privacy to consider the Consumer Contract before signing it,

d. A declaration by the Customer that the information provided by the Customer and included in the contract is true and correct, and

e. Where applicable, a declaration by an Authorised Agent that it has complied with the obligation of the Operator in this condition.

49. Condition A.2.1.

44. The details of Consumer Contracts have connection with the content of an interment right and I will address this below.

45. In October 2024, CCNSW issued a Discussion Paper regarding review of the CCA. The Discussion Paper principally addresses two topics. First, strengthening consumer protections, and secondly clarifying and simplifying interment rights (I will deal with this second aspect below).

46. The Discussion Paper anticipated that “After a period of targeted consultation and government consideration, it is anticipated that an amending Act to give effect to the required changes will be introduced early in 2025.” ^[50]

    50. Discussion Paper at 5.

47. By reference to the NSW parliament website, no relevant bill has been introduced so far this year. Nor seemingly have any final reports or recommendations been published by Cemeteries and Crematoria NSW.

48. Leaving aside certain statutory exceptions, and noting that the statutory reach is not absolute, ^[51] broadly speaking, the position regarding interment rights is as follows.

    51. CCA s 45.

Definitions and types of rights

49. The "interment" of human remains means (a) the placement of human remains in a mausoleum, vault, columbarium or other structure designed for the placement of such remains, or (b) the burial in the earth of human remains (directly in the earth or in a container). ^[52]

    52. CCA s 44.

50. An "interment right" is an interment right granted under Part 4 of the CCA. ^[53] An "interment site" is, under the CCA, a place in a cemetery for the interment of human remains. ^[54]

    53. CCA s 44.

    54. CCA s 44, dictionary.

51. There are various aspects to interment rights which are prescribed by reference to obligations of a cemetery operator and matters which the operator must permit, namely, the operator must: ^[55]

(a) permit the interment of the remains of the person to whom it relates at the site in a cemetery identified in, or in accordance with, the interment right, and

(b) permit the interment in accordance with the cultural or religious practice applicable to the part of the cemetery in which the interment site is located at the time the interment right is granted, and

(c) permit a memorial to the deceased person to be erected at the site with the approval of the cemetery operator, and

(d) leave the remains undisturbed in perpetuity (or, in the case of a renewable interment right, until such time as the remains may be disturbed or removed in accordance with this Act) unless disturbance or removal at an earlier time is requested or authorised by the holder of the interment right, and

(e) leave any memorial to the deceased person lawfully erected at that site, with the permission of the cemetery operator, undisturbed (provided the interment right remains in force and the memorial is kept in good repair) until such time as the memorial may be disturbed in accordance with this Act unless disturbance at an earlier time is requested or authorised by the holder of the interment right.

55. CCA subs 46(1).

52. The statutory regime distinguishes between interments right by duration of the right.

53. A “perpetual interment right” is a right entitling the grantee(s) the exclusive right of interment in a specified interment site in perpetuity. ^[56] There is provision for a cemetery operator to revoke a perpetual interment right ^[57] and further provisions which address compensation in respect of such a revocation. ^[58]

    56. CCA ss 47, 48.

    57. CCA s 52.

    58. CCA s 53.

54. A “renewable interment right” is a right entitling the grantee(s) the exclusive right of interment in a specified interment site commencing on the day on which the interment right is granted and ending on the day the interment right expires under s 54 of the CCA (described as the "statutory renewal period" ^[59] ).

    59. CCA ss 44, 48

55. There are two types of “renewable interment right”, being (a) for the interment of human remains of the person or persons to whom the right relates after they have been cremated (cremated remains) for an initial term of up to 99 years commencing on the day it is granted, and (b)  for the interment of human remains (other than cremated remains) of the person or persons to whom the right relates for an initial term of 25 years commencing on the day it is granted. ^[60]

    60. CCA subs 54(1).

56. There are specific provisions attending application for a renewable interment right. ^[61]

    61. CCA subs 54(3).

57. A renewable interment right must not be granted in a portion of a cemetery consecrated for use by a religious or cultural group that requires perpetual interment. ^[62]

    62. CCA subs 54(2)

Acquisition and granting of interment rights and interment contracts

Means of acquisition and granting of rights

58. Interment rights may be acquired and granted in a number of ways. Nonexclusively, I mention four means of acquisition and grant.

59. First, and most frequently, interment rights may be acquired through contracting with a cemetery operator.

60. Secondly, interment rights may be acquired through transfer either inter vivos or pursuant to disposition under a Will or on intestacy.

61. Thirdly, rights might arise in some other way including under the general law. For example, rights might be acquired by estoppel: Vosnakis v Arfaras [2015] NSWSC 625; Arfaras v Vosnakis [2016] NSWCA 65; (2016) 14 ASTLR 397; (2016) 18 BPR 35,819.

62. Fourthly, it is conceptually possible that, in family provision proceedings under Chapter 3 of the Succession Act 2006 (NSW) (Succession Act), a Court might make provision for an applicant to receive interment rights held by a deceased’s estate. Interment rights are a form of personal property. ^[63] It might well be rare (and I know of no specific case in which it has been expressly done) that the Court would specifically order by way of provision that an applicant receive interment rights. However, if the Court made an order for an applicant to receive the residue of the estate and interment rights were included within the residue of the estate, then the applicant would receive those rights.

Contractual acquisition and grant of rights

63. CCA s 50.

63. Interment rights may be granted by a cemetery operator, with the application for such rights to be in an approved form accompanied by an appropriate fee. ^[64] Since 1 October 2024, the provisions regarding the rights are essentially formalised by means of contract between a cemetery operator and a proposed holder. Essentially, existing rights prior to the commencement of Part 4 of the CCA are unaffected and such pre-existing burial licence or other entitlement is essentially taken to be either a perpetual interment right or renewable interment right by reference to the duration of such right. ^[65] The Agency may impose conditions in relation to Consumer Contracts, ^[66] and as noted above has done so.

    64. CCA s 56.

    65. CCA subs 45(2).

    66. CCR cl 4I(1)(a).

64. Specifically, now, a cemetery operator must only grant an interment right pursuant to a Consumer Contract. ^[67] The operator must comply with certain precontract requirements and “ensure that Consumer Contracts are transparent, clear and expressed in reasonably plain language likely to be understood by the average Customer.” ^[68]

    67. License Conditions Sheet at 10.

    68. License Conditions Sheet at 10.

Content of Consumer Contracts regarding interment rights

65. The Consumer Contract must contain the following details: ^[69]

    69. License Conditions Sheet at 11-12.

a. Whether the interment right is perpetual or renewable,

b. Conditions that affect the tenure (if any),

c. The following information about grant of the interment right:

i. the statutory rights of the holder of an interment right,

ii. how an Operator determines the future holders of an interment right,

iii. the application of rules of intestacy,

iv. the identity of persons authorised to exercise the interment right,

v. whether the provision of a memorial is included in the interment right contract, and

vi. any memorialisation requirements or standards that apply to a memorial erected in connection with the interment.

66. CCNSW has produced a “Model contract for sale of a perpetual interment right for category 1 and 2 operators” (Perpetual Model Contract), along with “Model contract for sale of a renewable interment right for category 1 and 2 operators” (Renewable Model Contract). ^[70] Further, it has published a guide to using the Perpetual Model Contract (as at 1 July 2024), which guide describes the contact as a “model consumer contract”. ^[71]

    70. Downloadable by search for such model contracts via the CCNSW site.

    71. Downloadable via the CCNSW, “Interment Industry Scheme” (Webpage) accessible here:

Content of an interment right

67. The content of an interment right granted by a cemetery operator is regulated as follows: ^[72]

    72. CCA s 57.

An interment right granted by a cemetery operator must—

(a) identify the person or persons to whom the right is granted, and

(b) identify the interment site to which the right relates, and

(c) specify the number of persons whose remains may be interred pursuant to the right at that site, and

(d) identify the person or persons or class of persons whose remains may be interred pursuant to the interment right or provide that a specified person or person of a specified class may, at a future time, nominate the person or persons whose remains may be interred pursuant to the interment right, and

(e) identify whether the interment right is granted as a perpetual interment right or as a renewable interment right, and

(f) specify that the interment right may (subject to section 56 (4)) be transferred, and

(g) subject to any applicable mandatory code of practice requirement imposed under section 31, specify any other conditions on which the interment right is granted.

68. The CCR contain specific matters bearing upon the obligation of cemetery operators and terms affecting renewable interment rights. ^[73]

    73. Division 2 (cll 7-14).

69. Reform regarding clarifying and simplifying interment rights has been foreshadowed in the Discussion Paper. ^[74] The Discussion Paper noted that the current statutory description of an “interment right” focuses upon what operators must permit ^[75] but does not describe the rights that a right holder has upon grant of an interment right nor expressly set out the responsibilities of an operator in relation to that right in its holder. ^[76]

    74. By reference to s 46 CCA (see page 10). However, it is also arguably applicable to s 57.

    75. See CCA s 46.

    76. Discussion Paper at 10.

70. The amendments to the CCA proposed by CCNSW (which, as noted above, have not yet been the subject of draft legislation) envisage amendments clearly stating the following: ^[77]

    77. Discussion Paper at 11-12

1. An interment right grants the holder the exclusive right to:

a. Have one or more human remains nominated by the right holder interred at the site specified in the right.

b. Have the interment(s) conducted in accordance with the cultural or religious practice applicable to the part of the cemetery in which the site is located at the time the right is granted.

c. Have a memorial to the interred person or persons erected at the site.

d. Have the remains and memorial left undisturbed for the life of the interment right (either in perpetuity or as a renewable right).

e. Make decisions about whether to disturb or remove the remains, monument, or both at the site (subject to Public Health regulations).

2. These rights would continue to be exercised in accordance with any terms and conditions agreed with the operator, for example the number of people who can be interred in a site or restrictions on monument design.

3. The right holder has the obligation to maintain the memorial unless there is an alternative arrangement made between the right holder and the cemetery.

Pre-need and at-need interment rights

71. Each of CCNSW’s Perpetual Model Contract and Renewable Model Contract distinguishes between “at-need” purchases of interment rights and “pre-need” purchases (i.e. for rights to be used in the future but purchased prior to the death of the relevant deceased person).

Perpetual interment rights

72. CCNSW’s Perpetual Model Contract provides for general details regarding interment contracts and further specific details in relation to perpetual interment rights, ^[78] including relevantly, in respect of sole and joint holding and transfer, the following: ^[79]

Perpetual interment rights can be held by 1 person (solely) or 2 or more people (jointly):

When a sole interment right holder dies, we must transfer the perpetual interment right to the person named in their will, or act as the law tells us if the interment right holder did not leave a will.

When a joint interment right holder dies, we must transfer the perpetual interment right to the surviving interment right holder.

78. Perpetual Model Contract Annexure A.

79. Perpetual Model Contract Annexure A.4(b).

Cremated remains

73. Cremated ashes may be buried. However, they may also be kept (often in a urn) or scattered. No interment right is required for the scattering of cremated remains in a cemetery ^[80] nor, generally speaking, elsewhere.

    80. CCA s 62.

Joint holding of rights

74. A cemetery operator may grant an interment right in respect of an interment site in a cemetery to one person or to 2 or more persons as joint holders. ^[81]

    81. CCA s 56(2).

75. It is evident that each of CCNSW’s Perpetual Model Contract and Renewable Model Contract (and further from the terms of the particular contract issued by Metropolitan Memorial Parks (MMP) tendered on the hearing), that the reference to a holding of joint interment rights is specifically a reference to what lawyers describe as being joint tenancy holding rather than tenancy in common.

Transfer, gifting and other disposal of interment rights

76. An interment right may be transferred. Thus a cemetery operator may, on application, transfer an interment right from one person or 2 or more persons as joint holders to one person or 2 or more other persons as joint holders. However, the application may be made only by the holder of the interment right concerned or, if the interment right is held by joint holders, by all the joint holders. ^[82]

    82. CCA subss 58(1), (2).

77. The application for the transfer of an interment right must be in the form prescribed by the regulations or approved by the Cemeteries Agency and be accompanied by the appropriate fee. ^[83]

    83. CCA subs 58(3).

78. On the death of a joint interment right holder, the interment right passes to the surviving joint holder(s). ^[84]

    84. CCA s 51.

79. A sole interment right holder may bequeath the right as if it were the holder’s personal estate. ^[85] In such case, the executor or administrator of the deceased holder’s estate must give the relevant cemetery operator written notice of the death of the holder within 12 months after the executor or administrator becomes aware of the death. ^[86] The beneficiary does not become the holder of the right until a prescribed application is made and fee paid and the cemetery operator’s register is amended to record the new holder. ^[87]

    85. CCA subs 49(1).

    86. CCA subs 49(5); CCR cl 6.

    87. CCA subss 49(2), (3).

80. In the case of intestacy, the interment right is to be dealt with as if it were personal property forming part of the deceased’s intestate estate. ^[88] Similarly to interment rights gifted by Will, application and registration requirements must be complied with to give legal effect to the holding. ^[89]

    88. CCA subs 50(1).

    89. CCA subss 50(1), (2).

Disputes

81. There are provisions which enable the cemetery operator to determine the holder of interment rights in the event of dispute. ^[90] These provisions do not oust or exclude the Court’s jurisdiction to deal with disputes.

    90. CCA s 61.

Background to the claims

82. What follows is a very basic outline of the deceased’s family, and the respective contentions of the parties as to their entitlement to custody of the deceased’s body and ultimately to inheritance of his estate including rights of interment. It is drawn from the Court Book and exhibits before the Court in a context in which no formal process of taking objections to evidence has occurred and no formal testing of the material, at least in the form of cross-examination, has been undertaken.

83. The deceased and Nicholas are the only two children of the late Nicholas Chipis who died on 25 June 2023. ^[91] There are slight variations in spelling of each of the surnames of the deceased, the plaintiff and their father, the reason for which is needless to explore. The deceased’s mother Lubov died in November 2012. Nicholas is married to Anna. They have a son named Roman. ^[92]

    91. CB 123 [5]

    92. CB 133.

84. There is some indication that the deceased’s parents were born in Harbin, Northern China. ^[93] It is not necessary to make any particular finding regarding that. For all intents and purposes, the family is regarded as being of Russian heritage. Relevantly, the deceased held a Russian Orthodox faith. Jessie is a Maronite Catholic ^[94] of Lebanese heritage. Jessie has a number of siblings including Rosemary.

    93. T, 25 March 2025, 3.

    94. CB 86 [16].

85. Jessie indicates that the deceased’s faith was enlivened or reinvigorated following his mother’s death in 2012. ^[95]

    95. CB 89 [33].

86. The deceased’s parents lived at a property in Telopea. The deceased also acquired a property at Narrawalle, just north of Mollymook on the south coast approximately 220 km from Telopea.

87. Consequent upon the deceased’s death, on 13 February 2025, Nicholas commenced these proceedings seeking letters of administration of the deceased’s estate based on intestacy.

88. On 12 March 2025, Jessie filed a defence disputing Nicholas’s claim to administration and cross-claimed for letters of administration on the basis that she was the deceased’s de facto spouse on the date of his death and thus claims to be entitled to administration in priority to the claim of Nicholas. Nicholas filed a defence disputing that cross-claim on 19 March 2025.

89. Jessie’s cross-claim, in addition to addressing entitlement to administration, seeks an order that she is entitled to take possession of the body of the deceased and bury him at Rookwood Cemetery, Sydney. ^[96] To the extent necessary, she sought a special and interim grant of administration for the purpose of giving effect to that relief. ^[97]

    96. Cross-claim [2] in CB 16.

    97. Cross-claim [3] in CB 16.

90. Jessie’s claim to administration is based on an alleged 8-9 year relationship with the deceased. In or about January/March 2016 she says she met the deceased at a café in Parramatta. On 23 April 2016, Jessie says she had a first date and commenced a boyfriend-girlfriend relationship with the deceased. In late January 2017, she says that the deceased stayed with her at her parents’ home and so commenced a de facto relationship.

91. Nicholas disputes the relationship, asserting that, in any event, the relationship came to an end prior to the deceased’s death. He asserts that the deceased lived with his parents at a home in Telopea his entire life until their respective passing. ^[98] Specifically, he states that, in 2018, the deceased came to his home with Jessie and introduced her as his “girlfriend”. ^[99] He asserts that in or around 2020, he later found out through relatives that they had broken up, understanding the breakup took place pre COVID. ^[100] Anna claims that the deceased dated Jessie from around 2019 until 2021 when they broke up “because they had different religious beliefs and culture”. ^[101] Jessie, on the other hand, claims that the deceased was either estranged ^[102] from Nicholas or did not get along with Nicholas.

    98. CB 123 [5].

    99. CB 162 [92].

    100. CB 162 [93].

    101. CB 133 [8].

    102. For example CB 100 (point 11), 102 (final paragraph).

92. Nicholas claims to be entitled to the whole of the deceased’s estate on intestacy by reason of s 129(1) of the Succession Act. It is uncontentious that the deceased’s parents predeceased him, that he was not formally married, that he died without issue, and that he had no other “brothers and sisters” as defined for the intestacy provisions of the Succession Act. ^[103] Accordingly, subject to the issue of whether Jessie is a “spouse” for the purposes of the intestacy provisions of the Succession Act, Nicholas would be solely entitled to the deceased’s estate on intestacy.

    103. A person is the "brother or sister" of another if they have one or both parents in common: Succession Act s 101.

93. Jessie on the other hand claims to be a spouse for the purposes of the intestacy provisions of the Succession Act and, if she is successful in establishing that she is the deceased’s “spouse”, she is entitled to the whole of the deceased’s estate on intestacy. ^[104] By combination of a number of statutory provisions, Jessie would relevantly be found to be the deceased’s “spouse” if she had been in a de facto relationship with the deceased that had been in existence for a continuous period of two years as at the date of the deceased’s death. ^[105]

    104. Succession Act s 111.

    105. See Succession Act ss 101, 104 and 105.

94. A person is in a “de facto relationship” with another person if (a) they have a relationship as a couple living together, and (b) they are not married to one another or related by family. ^[106] In determining whether two persons “have a relationship as a couple”, all of the circumstances of the relationship are to be taken into account, including any of 9 specified matters (including duration of the relationship, the nature and extent of their common residence, and the reputation and public aspects of the relationship) that are relevant in any particular case, albeit that no particular finding in relation to any of those indicia is necessary in determining whether the persons have a relationship as a couple. ^[107]

    106. Interpretation Act 1987 (NSW) (Interpretation Act) s 21C(2).

    107. Interpretation Act s 21C(3).

Estate

95. There is lack of clarity at this stage regarding precisely the property the deceased owned. Nonetheless, it appears to be common ground that the deceased owned: ^[108]

1. a property at Narrawallee estimated at $2 million;

2. monies in a bank account (from proceeds of sale of parents’ home in Telopea) of $900,000; and

3. superannuation and/or life insurance approximately $100,000.

   108. CB 162 [91] according to Nicholas.

96. The Narrawallee property is subject to a mortgage of $400,000. ^[109]

Listings and refining a solution regarding the deceased’s burial and addressing interment rights

109. CB 162 [91] according to Nicholas.

First listing (18 March 2025)

97. The referral of the matter to me as Duty Judge arose in the context that I have described above.

98. There appeared to be an expectation of the parties through their legal representatives, both at the initial listing and second listing, that the question of the so-called right to possession of the body and carriage of the burial would be determined, if not exclusively, at least principally by reference to the right to administration of the deceased’s estate. The claim to these “rights” appeared to be premised on whether there was a prima facie or stronger case that Jessie was at the date of the deceased’s death properly described as being the “spouse” of the deceased.

99. Whilst reference to the statutory order for the distribution of property on an intestacy is one of a number of matters which may inform or guide decisions regarding the disposal of the deceased’s remains and addressing interment rights, it is by no means necessarily a decisive consideration for reasons explained by Lindsay J in Weidig ^[110]  and myself in Dayman. ^[111]

    110. See especially at [55]-[66].

    111. See at [95]-[106].

100. It became evident that, at least within Jessie’s camp, a significant amount of work over the fortnight prior to the Court being approached had been spent in marshalling evidence to support Jessie’s contention that she was the deceased’s “spouse” for intestacy purposes. Jessie and her legal representatives had marshalled affidavits from 11 deponents including herself, her father, her sister, her solicitor and 7 other witnesses.

101. Different evidentiary and legal considerations apply to the questions regarding who is to be permitted to have custody and carriage of burial arrangements and who is to have rights of interment.

102. In order to clarify what might be said to be really in dispute, I sought to elicit from the parties matters about which there was no apparent dispute or at least some form of common ground and to record those matters.

103. Next, to facilitate the expeditious determination of immediate issues regarding the carriage of burial arrangements and the initial acquiring of rights of interment (preliminary matters), I proposed orders with a view to dealing with these preliminary matters first, and deferring the question of ultimate entitlement of the parties to interment rights to be dealt with at a later date.

104. Further, in order to facilitate the just and cost-effective resolution of those preliminary matters, I made directions to reduce the volume of material to be adduced in any contested application on those issues by focusing the parties’ attention on criteria or matters likely to assist the Court in determining those preliminary matters.

105. I made the following orders:

THE COURT:

1.   Notes that these proceedings involve a contest between the plaintiff who is the brother of the late Leonid Chipizuboff (deceased) who died on 3 February 2025 and the defendant who the claims to be the de facto spouse of the deceased for relief as to administration of the deceased’s estate and other relief.

2.   Notes the defendant has this morning orally requested the Court to deal on an urgent basis the relief sought in paragraph 2 of the cross-claim filed on 12 March 2025 regarding entitlement to take possession of the body of the deceased and to bury the deceased’s body in Rookwood Cemetery, Sydney.

3.   Notes that there is no apparent dispute between the parties that:

a.   the deceased died intestate;

b.   the deceased’s parents predeceased him;

c.   the plaintiff is the only sibling of the deceased;

d.   deceased’s body is currently held by the Coroner a location in Wollongong under the control of the Coroner based in Milton;

e.   the deceased should be buried rather than cremated;

f.   the service attending the interment should be in accordance with the Russian Orthodox faith.

4.   Notes that an issue identified by the defendant on which the parties are said to be disputed relates to question of what if any perpetual or other rights of interment any interested party might have in respect of the proposed burial plot at Rookwood Cemetery.

5.   Directs the parties to confer with a view to seeing if they can agree as to:

a.   the location at which the deceased is to be buried; and

b.   separating the question of burial in a plot from the question of what if any perpetual or other rights of interment any interested party might have in respect of the proposed burial plot.

6.   Directs the parties to prepare a Court Book no greater than 150 pages in length which contains materials bearing upon the five criteria set out in paragraphs 38 of Brown v Wedig [2023] NSWSC 281; (2023) 22 ASTLR 386

7. Stands the matter over to 2pm on Friday, 21 March 2025 before the Equity Duty Judge for determination of the location of the burial of the deceased having regard to amongst other matters the above-mentioned criteria the determination should if possible be an order for separate determination of a question in the proceedings pursuant to r 28.2 UCPR being relevantly separate to the interment rights to the plot.

Second listing (21 March 2025)

106. On 21 March 2025, the parties appeared again before me. Commendably, the parties had been able to prepare a compressed Court Book as I had envisaged with a focus on specific criteria that would facilitate the determination of the preliminary matters. In addition, Mr Ellison SC had available and ultimately handed up without any objection material from MMP setting out details in relation to interment rights. It was marked for identification, and subsequently tendered (on 25 March 2025) and marked as exhibit JP1. Rookwood Cemetery is under the auspices of MMP. I will set out below the relevant provisions of the documentation.

106. I was informed by Mr Morahan that the parties had agreed upon a number of matters including the place of burial (being Rookwood Cemetery, Russian Orthodox section), the plot or allotment number, a funeral director (specialising in Russian Orthodox burials) and a service according to the Russian Orthodox faith. ^[112]

     112. T, 21 March 2025, 1-2.

107. Mr Morahan indicated that what was an issue was “joint ownership of the plot”. ^[113] I was informed that Nicholas had on 19 March 2025 made an open offer in the following terms:

We now place an open offer and subject to the execution of a Deed or suitable orders and Court

Notations:

1. A plot be owned in joint names in order to bury the deceased:

2. The plot be at Rookwood Cemetery in the Russian Orthodox section; and

3. The unsuccessful party in the litigation will agree to transfer to the successful party (being the court appointed administrator of the estate) their half share of the plot.

This offer is open for acceptance until 2:00PM on the 19 March 2025.

113. T, 21 March 2025, 1-2.

109. Mr Morahan made a number of observations in relation to the offer. In particular, he contended that it was uncertain in relation to the meaning of being “unsuccessful” in the litigation. ^[114]

     114. T, 21 March 2025, 2.

110. Mr Ellison SC indicated that Nicholas was content to come to some form of initial arrangement whereby the right of interment was jointly held but only to abide in an ultimate decision of the Court regarding administration of the estate. He submitted that the right of interment is the right of the person to administer the estate, ^[115] and that a “joint entitlement preserves the status quo”. ^[116]

     115. T, 21 March 2025, 4-6.

     116. T, 21 March 2025, 6.

111. I doubted those propositions were necessarily appropriate or at least definitive guides for resolving the preliminary matters. Mr Morahan disputed the sensibility of a form of joint holding dependent upon the outcome of who was entitled to administer the estate, submitting that it would be too uncertain.

112. In circumstances in which the deceased died intestate, the prima facie position is that existing rights of interment held by the deceased are part of the deceased’s personal property which will devolve upon intestacy: s 50 CCA. Thus, the entitlement to any such rights of interment would be by reference to the persons entitled on intestacy as distinct from the administrator of the estate. One difficulty with the first submission of Mr Ellison SC is that, on one view, it would be inconsistent with s 50 of the CCA and contrary to the expectations of the parties, if the Court ultimately were to grant administration of the deceased’s estate to an independent person as distinct from one of the parties.

113. I provisionally indicated that I thought the appropriate means of ensuring an orderly and dignified burial process for the deceased and justly balancing the interests of the parties was for the Court to appoint an independent administrator who would arrange for the burial of the deceased, and to acquire and hold the right of interment, with the question of the ultimate entitlement in such rights of interment to be determined at a later point of time. ^[117]

     117. T, 21 March 2025, 6-7.

114. Mr Morahan sought to dissuade me from the notion that an independent person should be appointed to have carriage of the burial. He submitted that the contention or issue between the parties was not necessarily characterised as “conflict”, but rather, from Jessie’s point of view, a matter of “suitability”, asserting that Nicholas was unsuitable to have carriage of the burial by reference to what is said to be “his past behaviours, and his attitude towards the deceased, and his enunciated statements and things he has done”.

115. He submitted that Jessie should be given the right of interment, seemingly on the premise that “she was the recipient of statements of the deceased about what he wanted” and, secondarily (although he accepted this was a minor point), that at the time of the deceased’s death, they were swimming together. ^[118]

     118. T, 21 March 2025, 7-8.

116. Upon further questioning of both counsel, the premise that the issues that divided the parties was not one of “conflict” but rather “suitability” of Nicholas to be involved in or have carriage of the burial process was not made out. Rather, Jessie’s claim to be the deceased’s “spouse” remained contested on the basis that there was challenge to whether a de facto relationship subsisted for 2 years prior to the deceased’s death and also as to whether she should have carriage of the burial. ^[119]

     119. T, 21 March 2025, 8.

117. I considered the further contentions. However, bearing in mind the imperative to have the deceased’s body buried in a dignified manner, and having regard to the fact that the conflict between the parties strongly suggested both that neither party should have the exclusive right and that they should not jointly share the right, I was strengthened to the view that I should appoint an independent administrator to address the preliminary matters and certain aspects of property recovery and administration, whilst leaving any claim over the ultimate entitlement to interment rights to be litigated at a later point. ^[120] Counsel were eventually amenable in principle to that proposal and I requested that they confer to agree on an independent administrator and prepare proposed orders.

     120. T, 21 March 2025, 8-9.

118. I made the following orders:

THE COURT:

1.   Directs that parties to confer with a view to agreeing on the appointment of an independent administrator and in particular the extent of the (limited) powers of the interim administrator to administer the estate including getting in the assets of the deceased, attending to the payment of liabilities and payment or servicing of the mortgage in respect of the Narrawallee Property and further in respect of the disposal of the remains of the deceased including the acquiring of rights of interment.

2.   Directs the parties to confer with a view to creating a regime so that questions about any interest of the parties in the rights of interment acquired by the administrator to be determined at a later date including addressing questions of transfer and assignment of any such rights.

3.   Notes the parties are agreed that the deceased by buried at Rookwood Cemetery at the Russian Orthodox section with a service to be conducted in accordance with the Russian Orthodox faith.

4.   Directs the orders to be brought in may include proposed directions to the interim administrator at least in accordance with notation 3 and may extend to any further areas of agreement.

5.   Directs the parties to provide the proposed orders to the Associate of the Equity Duty Judge by 9:30am on Tuesday, 21 March 2025.

6.   Stands the matter over for mention before the Equity Duty Judge at 2pm on Tuesday, 25 March 2025.

7.   Orders that the costs of and incidental to the application to date be reserved.

Third listing (25 March 2025)

119. By the morning of 25 March 2025, Mr Elias (Jessie’s solicitor) informed my Associate by email that the parties were still conferring, apologising for the delay, but anticipating providing proposed orders by 11 AM. Shortly prior to 12:30 PM, Mr Elias sent a further email to my Associate indicating that unfortunately the parties have been unable to come to an agreement. He attached Jessie’s proposed orders, noting they involve prioritising the urgent funeral burial of the deceased and the right of interment, whilst allowing the parties more time to continue to confer in relation to further limited powers of the independent interim administrator.

120. By the listing of the matter at 2 PM, Mr Ellison SC on the part of Nicholas provided an alternate set of proposed orders.

121. Counsel informed me that the parties had agreed on who is to be appointed as interim administrator and seemingly agreed on the granting of limited powers to retrieve the deceased’s body and carry out the interment in the Russian Orthodox section of Rookwood Cemetery in accordance with the Russian Orthodox faith, but that the parties were still negotiating on the further powers of the administrator as to the broader estate. ^[121]

     121. T, 25 March 2025, 1.

122. I indicated I was not prepared to make orders granting the interim administrator limited powers only in relation to the burial of the deceased’s body and acquisition of rights of interment without the administrator being appropriately funded to do so. ^[122] Following that, there was discussion as between myself and counsel regarding certain aspects of the envisaged powers, dealing not merely with burial of the deceased’s body but also in respect of securing assets of the deceased’s estate and other specific property and focused interim administration tasks.

     122. T, 25 March 2025, 2.

123. Consequent upon that, I referred the matter to myself in chambers to consider the form of appropriate orders.

Finalising orders (26-27 March 2025)

124. The matter, as I indicated at the outset, was progressed on the basis that the parties were desirous of acquiring perpetual interment rights. I address the terms of the MMP documentation below. Leaving aside the distinctions, I note below regarding “pre-need” and “at-need” perpetual interment right terms and conditions. It is evident that MMP permits a maximum of two burial interments and four ash interments in Rookwood Cemetery unless there is a site restriction. ^[123] Further, there is provision for transfer of rights from a sole interment right holder and also consequent upon the death of a joint interment right holder.

     123. MMP Terms A.1(i).

125. On 26 March 2025, my Associate at my request emailed the legal representatives for the parties with a draft of proposed orders and notations which I was prepared to make, and requesting the practitioners and parties to consider the proposed orders and to indicate whether they consented or to provide any proposed agreed amendments. The email indicated that if there was any dispute regarding the orders I would arrange to list the matter to address the orders further in open court.

126. On 27 March 2025, Mr Elias confirmed that the parties were in agreement with my proposed orders and I made the orders as set out below.

MMP documentation

127. The MMP documentation (exhibit JP1) comprised two documents being: (a) Pre-Need Perpetual Interment Right Terms and Conditions; and (b) Rookwood General Cemetery Application to Update or Transfer a Perpetual Interment Right. The documentation closely but not precisely reflects the terms of the Perpetual Model Contract.

128. Earlier, I referred to the difference between “at-need” and “pre-need” purchases of interment rights. The first MMP document is a form of Pre-Need Perpetual Interment Right Terms and Conditions. It is not clear to me that that is the relevant document to use in this particular case which is evidently at the “at-need” stage. Nonetheless, there is no particular suggestion that there is a material difference between the “pre-need” provisions relating to perpetual interment rights offered by MMP and its “at-need” provisions.

129. The relevant MMP terms and conditions are as follows:

A.1 Perpetual interment right

a. This agreement gives you the exclusive right to a specific burial place or place for ashes, permanently. This is called a perpetual interment right. As the person who has this right, you are the interment right holder.

b. As the interment right holder, you can nominate who is interred into the interment site. This is known as the 'person nominated to be interred'. You may nominate:

• Yourself or another person, for future use into this plot if the total quantity of positions specified in the right allows it.

c. We issue certificates confirming perpetual interment rights, and list current interment right holders in our cemetery operator's register. We must keep this register up to date and available to the public for inspection or for copies to be made on payment of a fee, subject to any applicable privacy laws.

d. A perpetual interment right does not include any rights or title in the land, roads, building or other structures in the interment site or on the premises.

e. Both parties to this agreement (you and us) agree that changes to the Cemeteries and Crematoria Act 2013 (the CC Act) and other laws can affect perpetual interment rights.

f. If you buy a perpetual interment right to use in the future ('pre need'), you are buying the right now but (unless the contract states otherwise) you will need to pay for the interment service (the burial or placement of a body or ashes in the interment site) at the time of need. Whether you have selected related services (for example, a memorial service) within the contract or choose to add them later when needed, the price for these related services will be the price that applies in future when you need those services (if you still need them), unless otherwise specified in the contract.

g. We must issue an order for interment before a person can be buried or their ashes placed in the interment site. We will contact you if we require any further information to do this.

h. One (1) burial interment must be made prior to MMP allowing an ash interment in a particular burial site.

i. As the person who has the right, you are entitled to a maximum of two (2) burial interments and four (4) ash interments in the site unless there is a site restriction, the terms of which must then be specifically outlined in the special conditions at item 17.

j. Coffin and/or Urn restrictions for specific sites will apply when purchasing the interment right and will be confirmed at the time of the application for interment process.

130. The transfer provisions are as follows: ^[124]

Perpetual interment rights can be held by 1 person (solely) or 2 or more people (jointly):

• When a sole interment right holder dies, we must transfer the perpetual interment right to the person named in their will, or act as the law tells us if the interment right holder did not leave a will.

• When a joint interment right holder dies, we must transfer the perpetual interment right to the surviving interment right holder.

124. MMP Terms A.4(b).

131. The MMP provisions make it clear that a perpetual interment right does not include any rights or title in the land of the burial allotment. Clearly the rules of intestacy provide for interment rights, which will devolve as if they were personal property forming part of the deceased’s estate. ^[125] Those rights, if held by an interim administrator, may be transferred to the person or persons ultimately entitled to the deceased’s intestate estate, subject to any other legitimate legally determined claim to such rights.

     125. CCA s 50(1).

Costs

132. The parties have already incurred significant costs in the dispute. By the time of the first mention, Jessie’s solicitor estimated that she has incurred about $70,000 in fees relating to the urgent and interim relief sought. ^[126] It is likely that those costs have increased to some degree by reason of the further listings. It is further likely that Nicholas has incurred costs of a similar amount.

     126. CB 98 [16].

133. Self-evidently, a degree of the costs incurred has been referable to establishing, at least on Jessie’s case, evidentiary material that she is the “spouse” of the deceased and, in the case of Nicholas, material disputing that. That material, and the costs associated with marshalling it, are not wasted costs. However, it is a matter for sober reflection that 6 weeks after the proceedings were commenced and barely 2 weeks after Jessie’s cross-claim was filed, costs likely in the order of about $150,000 have been incurred to get the parties to a point at which there is an ordered regime for the deceased’s body to be buried and rights of interment acquired with ultimate entitlement in such rights to be later determined.

Orders

134. The orders of the Court which I made on 27 March 2025 are as follows:

THE COURT IN CHAMBERS AND BY CONSENT:

1.   Notes the Orders of Meek J dated 18, 21 and 25 March 2025.

2.   Notes there is a contest between the plaintiff/cross-defendant and the defendant/cross claimant as to which of them ought appropriately be appointed by the Court to have administration of the estate of the late Leonid Chipizuboff (deceased) as claimed respectively in paragraph 1 of the statement of claim filed on 13 February 2025 (statement of claim) and paragraphs 5-7 of the statement of cross-claim filed on 12 March 2025 (cross-claim).

3.   Notes that on 18 March 2025 the defendant/cross claimant by oral application moved the Court for the urgent interim relief sought by the defendant/cross claimant in paragraphs 2 and 3 of the cross-claim.

4.   Notes that as elaborated by respective counsel for the parties the issue between the parties for urgent relief extended beyond claim to possession of the deceased’s body to claims for interment rights.

5. Orders that to the extent that the relief regarding the entitlement to the possession of the body of the deceased, carriage of his burial and interment rights involves final relief that pursuant to r 28.2 Uniform Civil Procedure Rules 2005 (NSW) that the question be determined separately from other questions in the proceedings.

6.   Notes the materials in the Court Book and the following Exhibits:         

a.   JP1 (Metropolitan Memorial Parks documentation);

b.   JP2 (Consent of Hannah Murphy to act and details of charging rates); and

c.   JP3 letter from Jewell Own as to fitness of Hannah Murphy to act as administrator).

7. Orders, subject to further order, pursuant to s 73(1) of the Probate and Administration Act 1898 (NSW) that administration of the estate of the deceased (interim grant) be granted to Ms Hannah Murphy, solicitor (interim administrator), to the intent that she be the interim receiver of real estate and the interim administrator of personal estate of the deceased (estate) from the date of these orders until the date on which the Court issues a grant regarding the deceased’s estate of letters of administration or until further order.

8.   Orders that the powers attending the interim grant be limited to:

a.   acquiring in the name of the interim administrator on behalf of the estate of the deceased the rights of interment of the body of the deceased;

b.   taking all necessary steps including the engagement of John Wheatley funeral services to obtain custody of the body of the Deceased from the NSW Coroner and delivering the same to his final place of rest;

c.   oversee all aspects of the arrangement with Rockwood Cemetery for the burial of the deceased with a service to be conducted in accordance with the Russian Orthodox faith;

d.   the collection and preservation of all assets of the deceased;

e.   the payment of liabilities of the deceased, or the estate of the deceased, incurred in the ordinary course of business, including insurance premiums and utilities,

f.   corresponding with the Australian Taxation Office in respect of the taxation affairs of the deceased and/or the estate of the deceased;

g.   lodging any tax returns in respect of the deceased or the deceased estate and attending to payment of any assessed tax liabilities of the deceased or the deceased estate;

h.   taking all reasonable steps as may be necessary to investigate the existence of assets forming part of the deceased's estate, including but not limited to

i.   assets located outside of New South Wales,

ii.   assets located outside of Australia, and

iii.   funds held on trust for the estate;

i.   obtaining valuations of the assets of the deceased's real estate;

j.   establishing and operating, in the ordinary course, of a bank account or accounts in the name of the estate of the deceased;

k.   keeping an account of all receipts and disbursements of the interim administration of the estate of the deceased;

l.   leasing (for a period of no more than six (6) months) real estate comprising part of the deceased's estate,

m.   appointing an agent (including a solicitor, accountant, or real estate agent), to do any business that the interim administrator is unable to do, or that it is unreasonable to expect the interim administrator to do, in person;

n.   doing all such things, and executing all such documents, as are incidental to the powers hereby conferred, and the interim administrator shall proceed no further or otherwise than as aforesaid or in any other manner whatsoever and shall not distribute the estate until further order.

9.   Orders that at the end of each 3 months from the date of these orders, the interim administrator shall provide to the parties’ a concise written report of the payments and transactions in relation to the estate which she has made as interim administrator during that calendar month.

10.   Notes that these orders are without prejudice to:

a.   the parties and the interim administrator seeking to vary the powers noted in Order 8 attending the limited grant; and

b.   the interim administrator seeking directions and or judicial advice from the Court.

11. Orders, subject to further order, pursuant to s 73(1) of the Probate and Administration Act 1898 (NSW) that the interim administrator otherwise hold and manage the assets of the deceased pending any order of the Court to distribute the assets or their proceeds or until the interim grant is revoked.

12. Order, subject to further order, pursuant to s 73(2) of the Probate and Administration Act 1898 NSW that the interim administrator, on her usual terms as to payment, be entitled to make and be paid from the estate all the usual and proper charges for her work as interim administrator of the estate for the professional services rendered by her in the course of her interim administration of the estate at the rate of $420 per hour + GST.

13.   Orders that any requirement for the following shall be dispensed with, namely:

a.   publication of notice of intention to apply for this interim grant;

b.   an administration bond and sureties; or

c.   further compliance with the Probate Rules for this interim grant.

14. Notes, subject to any further claims of the parties as determined by the Court and subject to further order of the Court, the agreement of the parties that the rights of interment of the body of the deceased to be acquired in the name of the interim administrator shall, pursuant to s 50(1) Cemeteries and Crematoria Act2013 (NSW), be held by the interim administrator to be dealt with as if it were personal property forming part of the intestate estate of the deceased.

15.   Notes that subject to formal evidence (including an administrator’s affidavit and searches and certificates relevant to establishing next of kin) the plaintiff’s evidence in chief on the statement of claim is complete.

16.   Directs that the plaintiff file and serve his affidavits regarding any formal evidence (including an administrator’s affidavit and searches and certificates relevant to establishing next of kin) on or before 11 April 2025.

17.   Directs the defendant/cross claimant to file and serve any further evidence including formal evidence in respect of defence of the cross-claim prosecution of the cross-claim on or before 22 April 2025.

18.   Directs the plaintiff/cross-defendant to file and serve any affidavits in reply before 3 June 2025.

19.   Stands the matter over to before the Probate Registrar on Tuesday, 10 June 2025.

20.   Grants liberty to apply on 2 days’ notice to Meek J or the Probate Judge.

21.   Orders that costs be reserved.

22.   Orders that these orders may be entered forthwith.

**********

Endnotes

A “spouse” is defined by s 104: s 101.

A spouse of an intestate is a person - (a) who was married to the intestate immediately before the intestate's death, or (b) who was a party to a domestic partnership with the intestate immediately before the intestate's death: s 104.

A domestic partnership is a relationship between the intestate and another person that is a registered relationship, or interstate registered relationship, within the meaning of the Relationships Register Act 2010 (NSW), or a de facto relationship that- (a) has been in existence for a continuous period of 2 years, or (b) has resulted in the birth of a child: s 105.

Amendments

07 April 2025 - [5] - In the first sentence, "plaintiff" replaced with "defendant"

08 April 2025 - [3] - In the second sentence, "amplifies and" added

Decision last updated: 08 April 2025