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Ghosh v Ghosh

Ghosh v Ghosh

Case [2023] VSCA 77 19 April 2023

Standing

Res Judicata

Adverse Possession

Dispute over validity of will

Succession Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2022 0072

NEELANJAN GHOSH	Applicant
V
ANABAN GHOSH	Respondent

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JUDGES:	J Forrest AJA
WHERE HELD:	Melbourne
DATE OF HEARING:	24 March 2023
DATE OF JUDGMENT:	19 April 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 77
JUDGMENT APPEALED FROM:	[2022] VSC 410 (Gorton J)

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ADMINISTRATION AND PROBATE – Applications for leave to appeal and to stay judge’s orders – Dispute between two brothers following death of mother in hospital – Where applicant alleged mother was ‘systematically murdered’ and mother’s body should have been available for evidence – Where Coroner found mother’s death was ‘not reportable’ – Whether judge erred in making orders releasing mother’s body for purposes of cremation – Whether judge erred in making freezing orders restraining applicant from dealing with or disposing of mother’s assets – Risk of disposition of estate assets – Dispute over validity of will – Applications heard by judge alone pursuant to rr 64.15(4) and 64.15(5) of the Supreme Court (General Civil Procedure) Rules 2015 – Applications dismissed – No order as to costs.

Supreme Court (General Civil Procedure) Rules 2015, rr 54.02, 64.15(4), 64.15(5) – Coroners Act 2008, ss 4, 16 – Supreme Court Act 1986, s 14D(1).

Rozenblit v Vainer [2019] VSCA 164, Re Horner [2020] VSCA 85, Rohan v Pavloff Family Investments Pty Ltd [2023] VSC 175, Wang v Jiang (No. 2) [2022] VSC 371, Arabic Assemblies of God Inc v Land of Refuge Arabic Church in Melbourne Inc [2020] VSC 24, Keller v Keller [2007] VSC 118, Leeburn v Derndorfer [2004] VSC 172 referred to.

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Applicant:	In person
Respondent:	No appearance

y- I

J FORREST AJA:

Introduction

This proposed appeal and an application for a stay of a judge’s orders arise from a dispute between two brothers, Neelanjan Ghosh (the applicant; ‘Neelanjan’),[1] and Anaban Ghosh (the respondent; ‘Anaban’) following the death of their mother, Aroti Ghosh (‘Aroti’) in June last year.
[1]For clarity, the parties are referred to by their first names throughout these reasons.
Neelanjan alleges that Aroti was ‘murdered’ at the hospital where she spent her last days. The Coroner investigated that claim, concluding that Aroti’s death was not a ‘reportable death’,[2] and released the body which was taken to a funeral parlour (Greenhaven Funerals Pty Ltd in Dandenong South; ‘Greenhaven’).
[2]As defined in s 4 of the Coroners Act 2008 (‘Coroners Act’). See also Coroners Act, s 16.
Neelanjan disputed the Coroner’s finding and objected to the body being released by the funeral parlour for the purpose of cremation.
Anaban then sought orders from this Court permitting the body to be prepared for cremation. He also sought orders relating to the preservation of the assets of Aroti’s estate. There is a copy of a signed will dated 18 October 2011 (the ‘2011 will’) naming Anaban and Neelanjan as co-executors. Neelanjan asserts that it…

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 Ghosh v Ghosh

Details

AGLC: Ghosh v Ghosh [2023] VSCA 77
Case: [2023] VSCA 77
Decision Date: 19 April 2023

CaseChat Overview and Summary

The case of Ghosh v Ghosh involved two brothers, the applicants, who sought leave to appeal against and to stay orders made by a judge of the Supreme Court. The dispute arose following the death of their mother in hospital. One of the applicants alleged that their mother was "systematically murdered" and that her body should have been available for evidence. However, the Coroner found that the mother's death was "not reportable." The applicants challenged the judge's orders that released their mother's body for cremation and restrained them from dealing with or disposing of their mother's assets. The applicants also disputed the validity of their mother's will. The applications were heard by the judge alone, pursuant to rules 64.15(4) and 64.15(5) of the Supreme Court (General Civil Procedure) Rules 2015. The judge dismissed the applications without making an order as to costs.
The legal issues before the court were whether the judge erred in making the orders releasing the mother's body for cremation and in making the freezing orders restraining the applicants from dealing with or disposing of their mother's assets. The applicants argued that the judge should have considered their allegations that their mother was murdered and that her body should have been available for evidence. The applicants also argued that the judge should have considered the risk of disposition of estate assets and the validity of the mother's will. The court had to determine whether the judge's orders were correct and whether the applicants had a sufficient case to appeal.

The court found that the judge did not err in making the orders releasing the mother's body for cremation and in making the freezing orders restraining the applicants from dealing with or disposing of their mother's assets. The court held that the judge had properly considered the evidence and the relevant legal principles. The court found that the Coroner's determination that the mother's death was "not reportable" was a sufficient basis for the judge's orders. The court also found that the judge had properly exercised his discretion in making the freezing orders to prevent the risk of disposition of estate assets. The court held that the applicants did not have a sufficient case to appeal and that the applications should be dismissed. The court did not make an order as to costs.

Orders