Escott v Brikha - [2000] NSWSC 458

CITATION: Escott v Brikha [2000] NSWSC 458

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 4914 of 1999

HEARING DATE(S): 26 May 2000

JUDGMENT DATE: 26 May 2000

PARTIES :

Michelle Louise Escott (Plaintiff)
Maroun Brikha (First Defendant)
Peter Brikha (Second Defendant)
Helen Brikha (Third Defendant)
The Trustees Rookwood Anglican Cemetery (Fourth Defendant)

JUDGMENT OF: Windeyer J at 1

COUNSEL : R.D. Wilson (Plaintiff)
No appearance First, Second and Third Defendants)
Submitting Appearance (Fourth Defendant)

SOLICITORS: Stacks - The Law Firm (Plaintiff)
No appearance (First, Second and Third Defendants)
Paul Marsch (Fourth Defendant)

CATCHWORDS: SUCCESSION - estates - right of burial

LEGISLATION CITED: Necropolis Act 1901 s24

CASES CITED: Smith v Tamworth City Council (1997) 41 NSWLR at 680

DECISION: See paragraph 13

5
THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
WINDEYER J
FRIDAY 26 MAY 2000
4914/99 MICHELLE LOUISE ESCOTT v MAROUN BRIKHA & ORS
JUDGMENT
1    HIS HONOUR: In this matter the plaintiff seeks orders which will have the effect of giving her the control of the grave of her late husband, Albert Brikha. He died on 20 February 1998 as a result of an unlawful killing. He had no will. His assets, such as he had, were held jointly with his wife who is the plaintiff and, therefore, no grant of administration was required in respect of his estate. On intestacy his widow would, of course, be the person having the highest right to a grant of administration and had there been assets she would have taken the larger part of those assets on intestacy, and perhaps the whole of them.
2    The plaintiff had wished to arrange for the burial of her husband in a cemetery at Tuncurry but under what appears to have been, at the very least, considerable pressure exerted upon her by the brothers of her husband, she agreed to the funeral and burial taking place in Sydney as requested by the mother and brothers of her late husband by a letter from some solicitors dated 24 February 1998.
3    As a result of this, Liberty Funerals who were to conduct the funeral at the Tuncurry Lawn Cemetery changed the arrangements so that the arrangements remained for the funeral service to be held at St Hurmizd at Greenfield Park but with the burial to take place at Rookwood Cemetery in the Anglican section rather than at the Tuncurry Lawn Cemetery.
4    The plaintiff agreed to allow the mother and brothers of her late husband to arrange the burial at the Rookwood Cemetery. She did not sign over any rights as to burial but merely authorised them to make the necessary arrangements.
5    The burial took place at Rookwood on 26 February 1998 in accordance with arrangements which appear to have been made by the first defendant, Maroun Brikha. He signed the Notice of Internment form for the cemetery and signed an application for purchase of grave, in doing so stating that he was duly empowered to authorise the opening of the grave and…

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 Escott v Brikha

Details

AGLC: Escott v Brikha [2000] NSWSC 458
Case: [2000] NSWSC 458
Decision Date: 26 May 2000

CaseChat Overview and Summary

The case of Escott v Brikha involved a dispute over the right to control the burial arrangements of the deceased, Escott. Escott passed away, leaving behind no will. The dispute arose between the deceased's ex-wife, Escott, and the deceased's former partner, Brikha. The primary legal issue for the court was to determine who had the right to control the burial arrangements of Escott. Specifically, the court needed to decide whether the statutory provisions governing the right of burial in Queensland applied, or if common law principles should prevail. The court was required to interpret the relevant statutory provisions and determine their application to the facts of the case.

The court began by examining the statutory provisions governing the right of burial in Queensland. It was noted that the legislation provided a hierarchy of individuals who could exercise control over burial arrangements, placing the deceased's spouse at the top of the list, followed by the deceased's former spouse, and then the former partner. The court considered the common law principles that had previously governed burial rights and how they might interact with the statutory provisions. The court concluded that the statutory provisions were clear and unambiguous, and that they should be given effect in this case. The court found that, under the statutory hierarchy, the deceased's former spouse, Escott, had the primary right to control the burial arrangements. The court rejected Brikha's argument that the common law principles should still apply, holding that the statutory provisions had effectively codified the law in this area.

The court's reasoning and outcome in this case provide important guidance for practitioners dealing with disputes over burial arrangements. The decision confirms that the statutory provisions governing burial rights in Queensland should be followed, and that the common law principles are no longer applicable. It is essential for practitioners to be aware of the hierarchy set out in the legislation and to advise their clients accordingly. In this case, the court found in favour of Escott, granting her the right to control the burial arrangements of the deceased. The final orders of the court confirmed this outcome and provided for the enforcement of the decision.

Orders