Ghosh v Ghosh

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2022 0072

NEELANJAN GHOSH	Applicant
V
ANABAN GHOSH	Respondent

---

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)

---

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.

---

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 is a fraud and relies, in part, upon a subsequently obtained unsigned draft will to substantiate this assertion.
On 22 July 2022, a judge of the Trial Division of this Court granted Anaban’s application,[3] and made orders to the following effect:
(a)That Aroti’s body be released to Anaban for the purpose of arranging a cremation of her body with Greenhaven.
(b)That Neelanjan be restrained from dealing with or disposing of any of Aroti’s assets, including the family home in Glen Waverley.
[3]Re Ghosh [2022] VSC 410 (‘Reasons’).
Neelanjan’s proposed notice of appeal to this Court seeks to overturn the judge’s orders. He also seeks by a separate application a stay of the orders.
Anaban, by his solicitors, has advised he does not intend to participate in the applications to this Court.
Pursuant to rr 64.15(4) and 64.15(5) of the Supreme Court (General Civil Procedure) Rules 2015 (the ‘Rules’), these applications have been heard by me, sitting as a single judge of the Court of Appeal, on 24 March 2023.
For the reasons which follow, Neelanjan’s application for leave to appeal and his application to stay the orders of Gorton J will be dismissed.

Background to the proceeding in this Court

From approximately 1990, Aroti, her husband Biswanath Ghosh (‘Biswanath’) and Neelanjan lived in a residential house (the ‘property’) in Glen Waverley. The title to the property was initially registered in their three names as joint proprietors.
Around 26 September 2002, Aroti and Biswanath became the registered joint proprietors of the property.[4]
[4]Reasons, [23].
The 2011 will appointed the two brothers as co-executors of the estate.[5] Aroti left the property to Neelanjan and the balance of her estate to Anaban.[6]
[5]Reasons, [6].
[6]Reasons, [6].
Biswanath died on 14 February 2012.
In May 2012, Aroti executed a transfer of the property to Neelanjan (this is disputed by Anaban).[7] It has not been registered.[8]
[7]Reasons, [23]–[24].
[8]Reasons, [24].
After Biswanath’s death, Neelanjan continued to reside with Aroti at the property and cared for her.
ASIC records noted Aroti as the sole shareholder and director of Ghosh Enterprises Pty Ltd (‘Ghosh Enterprises’).
Aroti was admitted to the Monash Medical Centre (‘Monash’) on 1 June 2022.[9] She was unvaccinated for COVID–19, which she had contracted. She had multiple other underlying health issues (including stroke, mitral valve replacement, post-renal transplantation, immunosuppression, heart failure, a pacemaker, diabetes, and latent tuberculosis) and ultimately died in hospital on 9 June 2022, aged 76.
[9]Affidavit of Carly Dalton sworn 22 July 2022.
The medical certificate cause of death was ‘a) COVID–19; b) end stage renal failure on immunosuppressants’. The body was not embalmed.
Neelanjan reported Aroti’s death to the Coroner on 10 June. In correspondence with the Coroners Court, he alleged that the hospital staff ‘systemically murdered’ his mother.[10]
[10]Reasons, [1].
On 22 June 2022, the Coroner determined that it was not a ‘reportable death’.[11] The Coroner had reviewed Monash’s clinical records (of over 2500 pages) and obtained advice from a consultant pathologist at the Victorian Institute of Forensic Medicine. The Coroner concluded that Aroti’s death was due to ‘natural causes on a background of significant immunosuppression which arose in the context of a complex and significant medical history.’[12]
[11]Coroners Act, ss 4, 16.
[12]Reasons, [1].
Aroti’s body was subsequently released to Greenhaven.[13]
[13]Reasons, [2]. Affidavit of Anaban Ghosh sworn 18 July 2022.
Neelanjan did not accept the Coroner’s decision and advised his brother and Greenhaven that he intended to appeal it. Anaban delayed instituting this proceeding until close to the expiry of the time allowed for Neelanjan to lodge an appeal against the Coroner’s decision (28 days).
During July and prior to the institution of the proceeding, Ms Carly Dalton, a funeral director employed by Greenhaven, communicated regularly with each of the brothers. She advised them that their mother’s remains were deteriorating and that she needed the consent of both or a Court order before being able to proceed with funeral arrangements.
Throughout this period Neelanjan wrote aggressive and disparaging emails about his brother to both Anaban’s lawyers and to Greenhaven alleging, amongst many things, that the 2011 will was fraudulent. He maintained that it was inappropriate to continue with preparations for a cremation of his mother’s body given that he intended to appeal the coroner’s decision and her body would be required as ‘evidence’ in any subsequent investigation.[14]
[14]Reasons, [4].
Neelanjan attempted to file a proceeding in the Trial Division of this Court appealing the Coroner’s decision on 19 July 2022. For administrative reasons, his proposed appeal was rejected by the Registry twice that day. At the time the judge made the orders there was no extant appeal of the Coroner’s decision.
Aroti’s body was cremated at Greenhaven Funeral Home on 29 July 2022 as permitted by the 22 July Orders.
At some stage after Aroti’s death, Neelanjan registered with ASIC a transfer of the share in Ghosh Enterprises from Aroti to himself.
Since Aroti’s death (and probably before) Neelanjan has paid the outgoings associated with the property where he continues to reside.

The proceeding in the Trial Division

On 18 July 2022, Anaban issued an originating motion and summons in the Trial Division against Neelanjan and Ghosh Enterprises seeking orders that:
…
2.Pursuant to r 54.02 of the Rules, the plaintiff be entitled to deal with the body of Aroti Ghosh (the deceased) and determine the appropriate means of disposal without consultation of his co-executor, the defendant.
3.Pursuant to the Court’s inherent equitable jurisdiction, an order passing over the defendant as executor of the estate of the deceased.
4.Alternatively to paragraph 3 above, an order that the plaintiff solely be entitled to make an application for a grant of letters of administration of the deceased’s estate.
5.An order directing the defendant to provide to the plaintiff any documents relating to the assets or liabilities of the deceased’s estate in his possession, custody or control.
6.An order directing the defendant to provide to the plaintiff any documents relating to the GHOSH SUPERANNUATION FUND, including any binding death benefit nomination form and the documents pertaining to the identity of the trustee.
7.Pursuant to s 236(1)(a), 237 and 247 A of the Corporations Act 2001, the plaintiff be authorised to inspect the books of GHOSH ENTERPRISES PTY LTD ACN 070 687 679.
8.An order restraining the defendant from dealing with the deceased’s assets, including any bank accounts held in the deceased’s name.
9.Pursuant to s 1324 of the Corporations Act 2001, until further order, the defendant whether by himself, his servants, agents or otherwise be restrained from taking any action in respect of GHOSH ENTERPRISES PTY LTD ACN 070 687 679, including:
9.1 Amending the company register; or
9.2 Dealing with the company's assets.
10.An order that the defendant pay the plaintiff's costs of and incidental to this proceeding, alternatively, the plaintiff's costs of and incidental to this proceeding be paid and retained out of the estate of the deceased.
11.Any such further order as this Honourable Court thinks fit.
The following affidavits (with accompanying exhibits) were filed by the parties:
(a)Anaban Ghosh on:
(i)18 July 2022;
(ii)20 July 2022;
(b)Neelanjan Ghosh on:[15]
(i)20 July 2022;
(ii)21 July 2022;
(c)Carly Dalton on 22 July 2022;
(d)Emma Nadia Julian (lawyer of Shiff & Company Lawyers, solicitors for Anaban) on 20 July 2022.
[15]Noting there were additional affidavits filed by Neelanjan after hearing.
The judge heard the application in the Practice Court on 19 July 2022 and 22 July 2022. On 22 July 2022, his Honour made the following orders — noting that Neelanjan was the first defendant:[16]
[16]Orders of Gorton J in the Reasons (Supreme Court of Victoria, S ECI 2022 02700, 22 July 2022).
1.Greenhaven Funerals Pty Ltd (ACN 159 798 964) be added as a defendant to this proceeding and the title of the proceeding be so amended.
2.The body of Aroti Ghosh (the deceased), on or after 26 July 2022, be released by Greenhaven to the plaintiff for the purposes of:
(a) arranging a cremation of the deceased’s body with Greenhaven;
(b)cremating the deceased’s remains at the premises occupied by Greenhaven or through any provider engaged by Greenhaven for that purpose.
3.The first defendant be restrained from dealing with or disposing of any of the deceased’s assets until further order of the Court, with those assets including, for the purpose of this order, moneys in any bank accounts in the deceased’s name (or jointly in the name of the deceased and her deceased husband) with the Bank of Melbourne, and the following bank accounts:
(a)Westpac Banking Corporation ‘Westpac Life’ account number [redacted];
(b)Westpac Banking Corporation ‘Westpac Choice’ account number [redacted]; and
(c) ANZ Access Advantage account number [redacted].
4.The restrictions contained in paragraph 3 of these orders do not affect or apply to the deduction of funds from those accounts for any pre-arranged regular direct debit to an unrelated third party.
5.The first defendant be restrained until further order of the Court from disposing of or creating in any other person any interest in the property at 18 Hallows Street, Glen Waverley whether as security or otherwise.
6.The first defendant be restrained from disposing of any assets of the second defendant until further order of the Court.
7.The proceeding is listed for further directions at 10.00am on 29 July 2022 in a Court room to be advised at 210 William Street, Melbourne in the State of Victoria before the Judicial Officer presiding in the Trusts, Equity and Probate List.
8.The plaintiff’s costs of this application be paid by the first defendant without recourse to the assets of the deceased’s estate on a standard basis to be taxed in default of agreement.
Subsequently, Anaban issued a separate proceeding in the trusts equity and probate division of this Court seeking probate of the 2011 will (the ‘probate proceeding’).[17] Neelanjan filed a caveat and has now been joined as a defendant. Anaban has also sought that Neelanjan be passed over as executor.
[17]Supreme Court of Victoria, S PRB 2022 21557.

Referral of the applications before this Court

Pursuant to r 64.15(1) of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’) the Registrar may refer an application, including for leave to appeal, to a single Judge of Appeal.
On 11 November 2022, the Registrar referred these applications to me for determination under r 64.15(1).
A single judge may determine the application(s) on the papers, or direct that there be an oral hearing.[18] The judge may then determine the application (including to grant leave, refuse leave or determine that the leave application is totally without merit), or refer it to a bench of two or more.[19] I directed that an oral hearing take place.
[18]Rules, r 64.15(2); Supreme Court Act 1986, s 14D(1) (‘SCA’).
[19]Rules, r 64.15(5).
As noted above, the two applications were heard by myself, sitting as a single judge of the Court of Appeal, at an oral hearing on 24 March 2023.[20]
[20]Rules, rr 64.15(4)–(5).

Proposed grounds of appeal and Consideration

The application for leave to appeal and proposed notice of appeal is discursive and seeks to challenge each of the judge’s orders. It is only necessary to set out the first proposed ground of appeal to understand the difficulty in dealing with this application:

Proposed appeal against all orders

Grounds of appeal against all orders, the whole judgement, the proceedings and the originating motion dated 18 July 2022: The Respondent’s originating motion is based on a blatantly fraud will dated concurrently 18 October 2011and 18 September 2011and a missing page, with no original signature that could help determine whether the Will was signed by the testator in the presences of the witnesses using the same pen. The will is expressly a fraud because it purports to bequeath a property on 18 hallows St., Glen Waverley Vic 3150 owned by the applicant which the respondent would have known the applicant owned since August 1990. Respondent’s lawyers Shiff continued the fraud because they would known from title search that applicants name appeared on the title/ land registry first in August 1990, but Shiff still used the said Will as the basis of the Respondent’s originating motion dated 18 July 2022 from which these proceedings, judgement and orders flow. The will has not been presented for Probate but r 54.02 is being used arbitrarily to sequester properties unjustiably [sic] as a substitute for Probate. That r 54.02 based sequestration resulted in applicants property and company being sought to be considered as deceased estate assets when they were clearly not so.

This ground endeavours to agitate many of the issues in the probate proceeding which will be determined at trial. In addition, it conflates the use of Order 54 of the Rules in the cremation application with the issues to be considered in the probate proceeding. It makes little if any sense and demonstrates the need to consider each order (and the attack upon it) specifically.

Proposed appeal against orders 1 and 2 – the disposal of Aroti’s body

Order 1 reads:
Greenhaven Funerals Pty Ltd (ACN 159 798 964) be added as a defendant to this proceeding and the title of the proceeding be so amended.
Neelanjan’s complaint in relation to order 1 (as contained in proposed ground 2 of his application for leave to appeal) is as follows:
Grounds of appeal against order 1: Applicant hired Greenhaven after interview, examination and discussion and specifying applicant needs and entered into an agreement with Green haven and paid monies to Green haven for the purpose of transfer of applicants mother, the deceased, her care and all other arrangements. Greenhaven’s joinder as second defendant are against applicants interest and the point of claims are very dissimilar. Greenhaven’s affidavit was coerced by Plaintiff.
This complaint is without merit. It was patently necessary for Greenhaven to be added to the proceeding given that it was in possession of Aroti’s body and that Anaban was seeking orders enabling the disposition of the body. The suggestion, in the notice of appeal, that the affidavit of Ms Dalton had been coerced by Anaban is without foundation. The correspondence between Ms Dalton and the two brothers in July 2022 preceding the application to the Trial Division of this Court is entirely consistent with the contents of her affidavit.
Order 2 reads:
The body of Aroti Ghosh (the deceased), on or after 26 July 2022, be released by Greenhaven to the plaintiff for the purposes of:
(a)arranging a cremation of the deceased’s body with Greenhaven;
(b)cremating the deceased’s remains at the premises occupied by Greenhaven or through any provider engaged by Greenhaven for that purpose.
Neelanjan’s complaint in relation to this order (as contained in proposed ground 3 of his application for leave to appeal) is as follows:
Grounds of appeal against order 2(a) and 2(b): Deceased wished for applicant to care for her having lived with applicant for all of the applicants life with applicants father (deceased’ late husband). Deceased is a family member and its custody does not fall within the power of r 54.02 but are governed similarly as the custody of a minor would be determined with due regard for existing familial relationships. The respondent had an exceptionally hostile, distant relationship with the deceased and never lived with her, did not know her wishes and never cared for her. Applicant, son of the deceased had a loving and close relationship with deceased all her life. Applicant had originally hired Greenhaven and paid all monies and extensive discussions with Greenhaven regarding arrangements for the deceased. The deceased is in a hermetically sealed environment at Greenhaven. Greenhavens affidavit was objected by Applicant pointed to Greenhaven affidavit missing to mention hermetically sealed (transcript page 72-line 14, page 75 -lines 18,19,20) environment preventing deterioration of deceased. Page 80, line 29 and 30- HIS HONOUR: “Mr Ghosh, people are fallible, I’m fallible. I might’ve made a mistake, I might be wrong.” Greenhaven, the second defendant was being instructed by plaintiffs lawyers Shiff and I had raised this issue. The judgement of 22nd July in releasing and transferring custody of the deceased to the respondent was effectively also a judgement on the appeal from the Coroners determination to the Trial division of the Supreme Court.
Applicant contends that a practice Court judge in proceedings in the Trusts, Equity, and Probate List was not empowered to decide on the appeal from the Coroners determination. The appeal to the Coroners determination that deceased death is not reportable involves questions of facts as well as question of law. Executors role is not absolute ( paragraph 14 in ruling) and applicant and respondent are not on equal footing ( paragraph 14 claim in ruling is incorrect) . The appeal to the Coroners determination involves medical conduct at a premier public hospital, Monash Clayton, and the issues of law and facts raised are of wider community and public health interest.
The recent development of 29th June 2022 involving secret cremation of deceased by Greenhaven, without informing applicant, the deceased closest senior next of kin, while they had been advised of a stay application and leave to appeal having being initiated makes a stay and setting aside of all of these orders from the judgement of 22nd July 2022 even more urgent before they cause any more irreversible and irremediable changes. Order is still being sought to set aside the transfer of custody and cremation with a view to reinstating the applicants rights to custody of the deceased remains and additional orders being sought to declare the secret cremation of the deceased unlawful while leave to appeal had being initiated and all parties advised of the same.

In relation to order 2, Neelanjan identified five matters in his submissions:
(a)That there was no power under the Rules to make an order in relation to disposition of the body;
(b)That Anaban had no standing, and that his (Neelanjan’s) interest and wishes should have been preferred over Anaban given Neelanjan’s close relationship with Aroti and his opposition to the proposed cremation of the body. The judge should not have exercised his power (which Neelanjan disputed) to order that the body be released to Greenhaven.
(c)That the affidavit evidence of Ms Dalton on behalf of Greenhaven should not have been relied upon in circumstances where it was filed at midday before a hearing at 2:15 pm, and Neelanjan had no opportunity to contradict or cross-examine the deponent.
(d)That in any event the judge should have adjourned the application so that Neelanjan had a better opportunity to contest the orders sought by Anaban, particularly as he was pursuing an appeal against the Coroner’s decision.
(e)That Greenhaven was being instructed by Anaban’s lawyers.
None of these arguments are persuasive.
First, it is clear that the Court has the power to make orders in relation to the disposition of a body and that this falls within both the inherent jurisdiction of the Court and also and more specifically r 54.02 of the Rules.
In his Reasons, the judge made the following observations regarding the Court’s powers under r 54.02:
Rule 54.02 empowers the court to grant any relief that could be granted in an administration proceeding. That includes the determination of any question which could be determined in an administration proceeding including any question arising in the administration of an estate. There is no dispute that this power permits the court to determine who is to undertake the task of disposing of a body and as to the manner and place of disposition,[21] and to make orders identifying what assets are assets of the estate. Similarly the court has power, either directly under r 54.02 or as an ancillary to the powers given by that rule, to make interlocutory orders restraining the disposition of assets that are or might be assets of the estate.[22]
[21]Reasons, [7]; citing, at footnote 3 of the Reasons:
Leeburn v Derndorfer (2004) 14 VR 100, 103 [12] (Byrne J), approved in Re Horner [2020] VSCA 85, [54] (Tate and Kaye JJA); Wang v Jiang (No 2) [2022] VSC 371, [30] (Moore J). The Court probably also has inherent jurisdiction to decide this issue – see Minister for Families and Communities v Brown [2009] SASC 86, [3] (Gray J).
[22]Reasons, [7].
His Honour was following an established line of authority as to the Court’s powers. In Leeburn v Derndorfer[23] Byrne J said as follows:
It is well established that the Court has the power to intervene in order to resolve disputes as to who is to undertake the task of disposing of the body and as to the manner and place of disposition. In Meier v Bell, Ashley J held that the proper procedural vehicle for such a claim was by proceeding under r 54.02 and this was the procedure adopted in this case.[24]
[23](2004) 14 VR 100; [2004] VSC 172.
[24]Ibid [12] (Byrne J). See also Re Horner (2020) 19 ASTLR 469; [2020] VSCA 85, [54] (Tait JA, with Kaye JJA agreeing at [81]) in which this observation was cited with approval.
In Re Horner, Tait JA made the following observation as to the procedure under Order 54 of the Rules:
Ashley J in Meier v Bell clearly affirmed the Order 54 procedure as appropriate to the recognised jurisdiction of superior courts to determine these matters even where there are known or unknown contested issues of fact between the parties. He understood that these matters may involve unresolved complex questions of fact but that much of that conflict may be irrelevant to the issue at hand. Somewhat similarly, Byrne J in Leeburn suspected that the differences between the parties ‘represents a manifestation of some more deep-seated hostility which I cannot resolve’ and, as mentioned, commented that the affidavits filed in the proceeding before him ‘deal with matters and conflicts which are of no relevance for my task’.
The force of the comments of both Ashley J and Byrne J is that the Supreme Court, in determining a proceeding under Order 54 relating to the disposition of the body or ashes of a deceased, ought to avoid resolving any contested issue of fact beyond those, if any, that are strictly necessary for its determination. Their comments do not support the proposition, relied on here by the judge, that, as a general principle, the Order 54 procedure is unavailable in the face of contested issues of fact.[25]
[25]Re Horner (2020) 19 ASTLR 469; [2020] VSCA 85 [61]–[62] (Tait JA, with Kaye JA agreeing at [81]).
It follows that it was clearly within the power of the judge to deal with this question although, as the judge was at pains to mention, his ability to make findings on contested matters of fact was limited.
Second, Anaban had both standing and sufficient interest to bring the proceeding. The 2011 will was the only testamentary document produced to the judge. Notwithstanding Neelanjan’s complaints it remains the only testamentary document. Anaban and Neelanjan are the joint executors. If it fails, there will be an intestacy. Anaban (whether as a joint executor or beneficiary under the 2011 will or a beneficiary under an intestacy) clearly had the standing to bring the proceeding, as his Honour found.[26]
[26]Reasons, [9].
As to preferring the wishes of Anaban and the decision to order the body to be released to Anaban to arrange cremation with Greenhaven, it was necessary for the judge to analyse the competing legal positions of the two brothers as well as the bases for their differing wishes.
The judge’s remarks on Anaban’s standing and the brothers’ respective positions as to the cremation are reproduced below:
The executors of an estate are responsible for disposing of the deceased’s body. Where no executors have been appointed, and it is possible to identify a person with the best legal claim to be appointed administrator, the court’s role will ordinarily be to identify that person and direct that that person has the power and responsibility to dispose of the body. That rule is not absolute. Further, where persons are ‘on an equal footing as regards the right to disposal’, the court has to resolve the argument in a practical way paying due regard to the need to have the body disposed of without unreasonable delay but with all proper respect and decency including the sensitivity of various relatives and any religious, cultural or spiritual matters which might touch upon the question; put another way, in those circumstances the court must, to the extent it can, consider ‘the merits’ of the competing claims to disposal of the body.
I am not in a position to determine whether or not probate of the will will be granted. Probably, in those circumstances, it is appropriate to proceed on the basis that probate will in due course be granted, as the will appears, on its face, to be valid, and, on the evidence as it currently stands, I am not satisfied it was probably created fraudulently or that the deceased lacked the mental capacity to sign it. Neelanjan is critical of Anaban for not producing an original of the will. But I am not persuaded by this that the will must be invalid: Anaban has sworn that he was provided by his mother with a copy of the will in or around mid-2012, and I am not in a position simply to reject this evidence which would be a plausible reason for which he would have possession of a copy of the will, rather than the original will.
But the result of the application in relation to the deceased’s body does not depend on whether or not probate would be granted. If probate is granted, the brothers will both be executors and in that sense neither would have a greater claim than the other to the legal right to determine the means of disposal of the body. If probate is not granted, and the deceased died intestate, then the brothers will both be next of kin and entitled to an equal share in the estate of the deceased.
I am not satisfied that Neelanjan would have a greater legal right than Anaban to be appointed as administrator of the estate. I consider it is appropriate to determine this matter on the basis that both Anaban and Neelanjan, as sons who are to inherit equal shares, whether under the will or otherwise, are on an ‘equal footing’. In those circumstances, it is appropriate that I determine the question of what ought to happen to the deceased’s body. Of course, in doing so I must consider the parties’ respective positions.
In my view, the matter comes down to whether further delaying the cremation would give sufficient potential advantage to Neelanjan, or otherwise be in the interests of justice in the event that he succeeds in his appeal and needs the body to be available as evidence in any subsequent investigation, to justify allowing the body to continue to decompose. In this context, I accept that there is a general public interest to be weighed in this case that bodies of deceased persons be treated with respect and cremated or buried reasonably promptly and not be permitted unnecessarily to decompose before so doing.[27]
[27]Reasons, [14]–[18].
His Honour then summarised the position in the following terms:
Also, as discussed further below, Neelanjan contends that the house was given to him by his mother in 2012, and that accordingly the house is already his and not part of the estate. If this is so, then it may be that the entire estate will now go Anaban. On that basis Anaban might have the greater legal right to be appointed administrator if the will cannot be proved. I have not relied on that possibility in reaching the conclusion I have. Similarly, even if I had formed the view that Neelanjan had a greater legal right to be appointed administrator of the estate in the event that the deceased died intestate, on the grounds that he had been living with his mother prior to his death and had a close or closer connection with her, I would have come to the same conclusion. Although the court will ordinarily defer to the wishes of the person with the greater legal right to be appointed administrator, it is not required to do so; the power under r 54.02 of the Supreme Court (General Civil Procedure) Rules 2015 is not so constrained. It makes good sense to defer to the wishes of the person with the greater legal right to be appointed administrator when there are differing views among family members relating to matters such as whether or how a body should be buried or cremated, what should happen to the ashes, or where a body should be buried. But in this case, both brothers agree that the deceased’s body should be cremated and cremated in Victoria. The dispute is simply about when that cremation should take place. Neelanjan’s wish to delay the cremation arises because of his desire to hold the hospital to account for what he considers to be its mistreatment of his mother. I accept that this desire is motivated by his love for his mother and his belief that by seeking to establish that his mother was mistreated he is acting in a sense in his mother’s interest. However, as discussed above I am not convinced it is necessary for the deceased’s body to be maintained for the purposes of the appeal of the Coroner’s decision.[28]
[28]Reasons, [21].
These paragraphs demonstrate that the judge was alive to all the issues that Neelanjan canvassed before me. He took into account the competing legal positions of the two brothers, their wishes, their relationship with their mother, the prospect of success on the appeal against the Coroner’s decision (which on Neelanjan’s case was the reason for deferring the cremation) and the condition of Aroti’s body. As opposed to the disputes in similar cases considered by the judge (and relied upon by Neelanjan at the hearing before me),[29] the only issue that his Honour had to resolve was the timing of the cremation and whether Aroti’s decomposing body should be preserved for the purpose of a putative coronial inquest. The judge’s reasoning on this issue is set out below at [59] and is convincing.
[29]See, e.g. Keller v Keller (2007) 15 VR 667; [2007] VSC 118; Wang v Jiang (No. 2) [2022] VSC 371.
It is also clear that his Honour was cognisant of Neelanjan’s wishes, including those relating to his ‘cultural practices’ (of Hinduism), and that he was aware of Neelanjan’s special relationship with his mother.[30] He considered the decisions of other judges concerning the competing wishes of relatives, particularly those who had a close relationship to the deceased. These turned on the particular facts of those cases, however, and his Honour had to consider the facts of this case, in which ‘both brothers agree[d] that the deceased’s body should be cremated and cremated in Victoria’.[31] On the other hand, from a legal perspective, the brothers were on an ‘equal footing’ — as his Honour noted.[32] If the will is proved then they are co-executors; if it fails, they will be equal beneficiaries on an intestacy. In truth, the primary issue was, as just mentioned, resolving the issue of the timing of the disposal of Aroti’s body.
[30]See, e.g. Reasons, [21]–[22].
[31]Reasons, [21].
[32]Reasons, [17].
Third, the argument that Neelanjan was denied procedural fairness by his inability to cross-examine Ms Dalton such that the affidavit should not have been relied upon is not sustainable. True it is that Ms Dalton’s affidavit was filed shortly prior to the commencement of the second day of the hearing and that Neelanjan had little notice of its contents. However, in the affidavit, Ms Dalton set out and attached the correspondence between Greenhaven and the brothers. Ms Dalton confirmed and repeated what she had told (either verbally or by email) Neelanjan and Anaban on a number of occasions about the state of Aroti’s body and its continuing discolouration and decomposition.
There was nothing new or surprising in the affidavit. Neelanjan’s suggestion that he wished to advance in cross-examination the proposition that the body of his mother was not deteriorating after six weeks is risible.
Fourth, Neelanjan argued that judge should have delayed deciding the matter until he had completed his appeal against the Coroner’s finding (remembering that at the time of the hearing, no appeal was on foot). His Honour dealt with this submission as follows:
I have concluded that the cremation ought not to be delayed until after the hearing and determination of any appeal against the Coroner’s determination but that it should take place as soon as it can be arranged in the ordinary course. I have reached these conclusions for the following reasons:
(a)I am not satisfied that there is a real prospect, let alone a likelihood, that any appeal against the Coroner’s determination that the deceased’s death was not a ‘reportable death’ would succeed. The Coroner noted that the records contained ‘extensive documentation that [the deceased] had numerous medical problems including post-renal transplantation, mitral valve replacement, immunosuppression, osteoporosis, heart failure, a pacemaker and diabetes’. The Coroner stated that the deceased’s hospital admission ‘largely revolved around her deteriorating lung function on a background of COVID 19 positivity and changes in keeping with Covid 19 pneumonia.’ The Coroner noted that the deceased was unvaccinated and immunosuppressed. The Coroner then accepted the opinion of a forensic pathologist with the Victorian Institute of Forensic Medicine, who had been provided with all of the clinical records and Neelanjan’s concerns, that the deceased’s death was due to natural causes on a background of significant immunosuppression which arose in the context of a complex and significant medical history. Neelanjan has not produced any medical opinion to contradict the Coroner’s conclusions or the medical opinion accepted by the Coroner. He has not, for example, produced any evidence to the effect that his mother’s death was as a result of any mistreatment or inadequate treatment on the part of the hospital. Further, his proposed appeal is limited to an appeal on a question of law. Even if Neelanjan were to produce evidence that contradicted the medical evidence relied upon by the Coroner, he would need to establish that it was not reasonably open to the Coroner to rely on the medical evidence that the Coroner relied on to form the views she did.
(b)I am not satisfied that the retention of the deceased’s body would be necessary for any subsequent investigation to be effective. Neelanjan did not produce any evidence to the effect that it would be necessary to go beyond the medical records in order to determine whether the hospital had mistreated the deceased. Nor did he produce any evidence that, if it would be necessary to go beyond the medical records, the deceased’s body would remain in a sufficient condition to permit a useful examination by the time the appeal had been heard and determined. It is to be borne in mind that it is already some six weeks since the deceased’s death, her body has started to decompose, and it will continue to decompose. Neelanjan was not proposing any steps by which the decomposition of the body could be halted; his expectation was that the funeral home would continue to hold the deceased’s body as it had been doing for the past six or so weeks. Where extensive contemporaneous medical records are available, I am not prepared to conclude, in the absence of evidence on the point, that an investigation into the cause of death could not properly be performed without the examination many weeks or months later of a significantly decomposed body.
(c)It is contrary to society’s (and other family members’) expectations relating to the dignity with which the bodies of deceased should be treated that they be permitted to deteriorate substantially unless there is very good reason to do so.
On balance, and in summary, I do not consider that the potential benefits to Neelanjan or the administration of justice in the investigation of deaths justifies allowing, particularly over the wishes of another family member, the deceased’s body to deteriorate further before it is cremated.[33]
[33]Reasons, [19]–[20].
Neelanjan’s contention that the judge should have adjourned the proceeding and waited for the appeal to be initiated (and presumably determined) was rightly rejected. No rational basis for challenging the Coroner’s patently correct decision has been demonstrated by Neelanjan. This was the only basis upon which he sought to delay the cremation. At this time his mother’s body was decomposing with the funeral director urging that the cremation proceed. The judge was correct in determining the application in a timely manner.
Fifth, the contention that Ms Dalton was ‘instructed’ by Anaban’s lawyers has no evidentiary foundation. Apart from suspicion and assertion by Neelanjan, there is nothing to support this allegation.
The end result is that none of the arguments propounded by Neelanjan regarding the inadequacies of the judge’s orders as to the disposition of his mother’s body have been made out. The judge was faced with a particularly difficult situation — a dispute between two family members — as to the timing of the disposal of Aroti’s body, which was decomposing. The underlying cause of Neelanjan’s dissatisfaction (namely the Coroner’s decision) had not been formally challenged and there was nothing before the judge to suggest that the Coroner was in error. Indeed, as just mentioned, everything pointed the other way.
In those circumstances, his Honour made what was, in effect, the only decision he could.
There was no error on the part of the judge. These proposed grounds fail.

Proposed appeal against orders 3, 4, 5 and 6 – the freezing orders

The proposed appeal against orders 3 and 4 can be considered together.
Order 3 is a freezing order which reads as follows:
The first defendant be restrained from dealing with or disposing of any of the deceased’s assets until further order of the Court, with those assets including, for the purpose of this order, moneys in any bank accounts in the deceased’s name (or jointly in the name of the deceased and her deceased husband) with the Bank of Melbourne, and the following bank accounts:
(a)Westpac Banking Corporation ‘Westpac Life’ account number [redacted for privacy];
(b)Westpac Banking Corporation ‘Westpac Choice’ account number [redacted for privacy]; and
(c)ANZ Access Advantage account number [redacted for privacy].
Order 4 is supplementary to order 3 and reads as follows:
The restrictions contained in paragraph 3 of these orders do not affect or apply to the deduction of funds from those accounts for any pre-arranged regular direct debit to an unrelated third party.
Neelanjan’s complaint in relation to order 3 (as contained in ground 4 of his application for leave to appeal) is as follows:
Grounds of appeal against order 3: a joint householder test should apply because the applicant used all of the bank accounts with the deceased permission and authorisation to use the bank accounts listed under order no. 3 to pay all household expenses and living costs of deceased and applicant. Deceased also instructed applicant to formally lodge with bank, papers to formally bring applicant on these accounts as joint account holder and left written instructions to this effect.
Neelanjan made no specific complaint in his proposed grounds of appeal in relation to order 4.
Order 37A of the Rules sets out the governing principles for the making of freezing orders in this Court. In Rozenblit v Vainer,[34] the Court said as follows:
The governing principles set out in O 37A, which was introduced in 2006 as part of a harmonisation exercise involving all Australian States and Territories, closely reflect the principles enunciated by the High Court of Australia in Cardile v LED Builders Pty Ltd. That judgment makes it clear that the rationale for freezing orders is to prevent the frustration of the Court’s processes and ensure the effective exercise of the jurisdiction invoked or, in the case of a non-party, to prevent interference with the administration of justice. It is clear from Cardile that the Court must exercise a high degree of caution before making a freezing order, which is a drastic remedy that must not be granted lightly.[35]
[34][2019] VSCA 164 (McLeish and Niall JJA).
[35]Ibid [14].
The court then summarised the relevant considerations for the making of such an order as follows:
In summary then, the principles governing an application for a freezing order pending appeal are as follows:
(1)The purpose of granting a freezing order is to prevent the frustration or inhibition of the Court’s process by seeking to meet a danger that a prospective judgment of the Court will be wholly or partly unsatisfied. Its purpose is not to provide security in respect of a prospective judgment or order.
(2)A freezing order is to be viewed as an extraordinary interim remedy. The order is a drastic remedy which calls for a high degree of caution on the part of the Court before an order is made.
(3)An applicant for a freezing order pending appeal will be required to establish that there is a good arguable case that the appeal will succeed. This means that it can be seen from the available material that the appeal has a real prospect of success.
(4)It must be shown that there is a reasonable possibility, not necessarily more than a 50 per cent chance, that assets may be disposed of or dealt with or diminished in value if an order is not made.
(5)In the case of an order against a third party, it must be shown that there is a danger that the prospective judgment will be wholly or partly unsatisfied as a result of the third party’s ability to exercise power in respect of the relevant assets, or that a court process may be available to the applicant as a result of a prospective judgment, under which the third party may be obliged to disgorge assets or contribute to satisfying the prospective judgment.
(6)The value of the assets covered by a freezing order should not exceed the likely maximum amount of the applicant’s claim, including interest and costs.
(7)As a condition of making a freezing order it will normally be appropriate to require the applicant to give undertakings to the Court, including the usual undertaking as to damages, supported if necessary by the provision of security.
(8)The order being discretionary, other considerations including the balance of convenience may bear upon the Court’s ultimate decision, but it is not a distinct requirement that the balance of convenience favours the making of the order.
(9)The inherent jurisdiction of the Court is preserved and r 37A.05 simply addresses the minimum requirements that ordinarily need to be satisfied in an application.[36]
[36]Ibid [19]. See also Rohan v Pavloff Family Investments Pty Ltd [2023] VSC 175 [9] (Nichols J); Arabic Assemblies of God Inc v Land of Refuge Arabic Church in Melbourne Inc [2020] VSC 24 [17] (Connock J).
The monies held in the three bank accounts, the subject of order 3, form part of the property of Aroti’s estate. There is a fierce dispute between the brothers over the authenticity of the 2011 will which Anaban seeks to propound in the probate proceeding. If the 2011 will fails, there will, no doubt, be a dispute as to the appropriate orders on an intestacy.
The judge noted that it was not in issue that Neelanjan had continued to make withdrawals from the accounts since his mother’s death. His Honour went on to say:
That said, Neelanjan has not produced any evidence that establishes that he has any rights over the moneys that exist in accounts that are held in the deceased’s name. Even if, as Neelanjan contends, the house is in truth his, that is no reason for which the estate should be paying the bills associated with its ownership and use. Until such time as it is ascertained who is to administer the deceased’s estate, it is inappropriate that the moneys that exist in those accounts be spent. I am satisfied that unless restrained from doing so, Neelanjan will continue to use those moneys. He asserts a right to do so. Neelanjan, who is a qualified engineer, has not put forward any evidence establishing pressing financial need to access those moneys. Accordingly, I will make an order restraining him from withdrawing any moneys from those bank accounts until further order.[37]
[37]Reasons, [31].
Given that Neelanjan resides in the family home and continues to make financial decisions concerning it, the judge was correct in making an order freezing the relatively small amount of funds held in the three bank accounts.
As the judge recognised, it was in the interests of justice that the estate be preserved until things can be sorted out and it is determined how the assets of the estate are to be distributed.
In any event, none of the assertions contained in the grounds of appeal, or the written case, suggest that the judge made an error in making orders 3 and 4.
Order 5 reads as follows:
The first defendant be restrained until further order of the Court from disposing of or creating in any other person any interest in the property at 18 Hallows Street, Glen Waverley whether as security or otherwise.
Order 6 reads as follows:
The first defendant be restrained from disposing of any assets of the second defendant until further order of the Court.
Neelanjan’s complaint in relation to orders 5 and 6 (as contained in ground 5 of his application for leave to appeal) is as follows:
Grounds of appeal against order no. 5 and order no 6: the said property and company was arbitrarily sequestered on a fraud Will deliberately and knowingly produced by the respondent for the originating motion based on the said fraud Will using r 54.02 to oppressively sequester these assets as deceased estate assets and place restrictions on the applicant of his right to use his own property freely. The applicant has produced affidavits clearly establishing his ownership of these assets. And ruling in paragraphs 25, 26, 28, 33 and 36 acknowledges the same and property ownership and transfer documents have produced and company share transfer and director appointment executed documents have been produced as exhibits in affidavits. The pressing need to vary orders as mentioned in paragraphs 28 and 36 arose from all bank accounts being blocked along with restrictions on dealing with own property and company while having to make arrangements for my mother.
Neelanjan’s separate complaint in relation to order 6 (as contained in ground 7 of his application for leave to appeal) is as follows:
Grounds of appeal for reason for granting leave to appeal in 6: to dismiss the originating motion and all proceedings for being based on an evidently fraud document being purported to be a Will oft he deceased and having tried to use default judgement and failed to sequester property belonging to applicant, and having now evolved to a “fishing” expedition with subpoenas being issued to parties who had never met or talked or communicated with deceased ever, a reckless asset grab using r 54.02 and deceased custodial and cremation effected irreversibly and irremediably having already caused permanent detriment to applicant, all these proceedings need to be dismissed and all orders set aside to stop the unjust, oppressive abuse of process by the plaintiff.
Neelanjan’s complaint in relation to order 5 is somewhat different to that of the other assets of the estate. A portion of the document transferring Aroti’s interest to Neelanjan and dated 4 May 2012 was annexed to his affidavit of 20 July 2022. He asserts that his mother executed the transfer to him shortly after his father’s death. This, he contends, was consistent with his original interest in the property as a joint proprietor with his mother and father.
On this point the judge reasoned as follows:
How Neelanjan’s name came to be removed from the register, and why the transfer to him was not lodged for registration, was not adequately explained. If, as Neelanjan asserted orally, his mother did not have the mental capacity to execute a will in late 2011, a question may arise as to her capacity to sign a transfer of the property to him in 2012. Anaban does not accept that the house was transferred to Neelanjan and does not form part of the deceased’s estate.
I am prepared to accept that if a transfer was signed transferring the property to Neelanjan prior to the deceased’s death, then the interest in the house would not be an asset of the estate even if that transfer were not registered prior to the deceased’s death. If, however, the house had not been given to Neelanjan prior to the deceased’s death, then the house would form part of the estate. If, then, as Neelanjan asserts is the case, the deceased died intestate, he would have no greater right to the house than Anaban. In those circumstances, if Neelanjan were to dispose of the house or to use it as security or to create any interest in any other party, Anaban could potentially suffer significant detriment.
Neelanjan contends that there should be no restraint placed on him in relation to the house on the basis that it is his property. I accept that he has an argument that the property is his. However, I am unable, in this application, to determine that question.
In these circumstances, the balance of convenience justifies the maintenance of the status quo pending the determination of questions including whether or not the will was valid and what assets are within the estate. For this reason, I propose to make an interlocutory injunction that has the effect of precluding Neelanjan from lodging the transfer with the titles office or otherwise dealing with the property until the ownership of the property and the validity of the will have been determined, or further order. In this respect, I note that Neelanjan did not identify any prejudice that he would suffer from such a restraint.
In the event that Neelanjan has a pressing need to dispose of the property, or to use it as security, then he will have the ability to seek to have that order varied.[38]
[38]Reasons, [24]–[28].
Each of the issues identified by his Honour are valid. Given that Neelanjan had demonstrated a capacity to use the estate’s funds it is important that the status quo be maintained until the probate proceeding is resolved. In addition, there is the following:
(a)First, Anaban contests the validity of the transfer. This places it in the same category as the 2011 will which Neelanjan disputes.
(b)Second, it is not clear as to why Neelanjan did not register the transfer after it was signed by his mother many years ago, in 2012. His explanations at the hearing that it is a ‘non-issue’ and that there was no need to lodge on an ‘immediate basis’ as it was a ‘transfer between family members’ were unsatisfactory.
As far as I can tell Neelanjan is not intending to sell or dispose of the property. He continues to live in the house and pay the outgoings. In the event that he wishes to dispose of the property prior to the hearing of the probate proceeding, then he is able to make an application to the judge to vary the order.[39]
[39]In oral submissions, Neelanjan pointed out that he endeavoured to make such an application in the probate proceeding. If he does need to make a further application, he should do so to the judge who made the initial orders — assuming that is practicable.
The end result is that the order that was made by the judge was appropriate. It is somewhat ironic that if Neelanjan’s assertion that the 2011 will is a fraud is accepted, then one cannot with confidence say that he will ultimately be held to be the sole owner of the property given the intestacy provisions.
Order 6 deals with the remaining assets of the estate. As far as can be determined, this relates primarily to shares in Ghosh Enterprises. His Honour reasoned as follows:
At the time of the deceased’s death, she was registered as the director of and sole shareholder in Ghosh Enterprises Pty Ltd. Neelanjan said that prior to her death the deceased had transferred shares to him and that he had been appointed a director of this company. Anaban does not accept that this is so. Neelanjan has not produced the actual signed transfer documents. The changes recorded by ASIC were not made until after the deceased’s death.
As with the property, if Neelanjan is correct, then the shares in Ghosh Enterprises Pty Ltd are not assets of the estate. If he is not correct, then allowing him to dispose of the shares in Ghosh Enterprises Pty Ltd, or allowing Ghosh Enterprises Pty Ltd to dispose of any of its assets, could cause detriment to Anaban as a beneficiary of the residual estate under the will or as someone entitled to a share of the estate in the event that the deceased died intestate. Neelanjan has not identified the assets owned by Ghosh Enterprises Pty Ltd, beyond asserting, from the bar table, that the only asset is an inexpensive motor vehicle.
As with the house, if, as Neelanjan asserted, his mother did not have the mental capacity to execute a will, it is not clear that she would have had the mental capacity to transfer shares to Neelanjan.
Again, the balance of convenience favours maintaining the status quo until the determination of this matter or further order. Accordingly, I propose to make an order restraining Neelanjan from disposing of any assets owned by Ghosh Enterprises Pty Ltd, until further order. Again, if there is some pressing need to do so identified by him, he can apply to have that order varied.[40]
[40]Reasons, [33]–[36].
The authenticity of the transfer of the shares, and the capacity of Aroti to make a transfer, is in issue and this will determine whether it forms part of the estate. Given Neelanjan’s use of monies from Aroti’s bank accounts after her death it can be accepted that there is a risk of dissipation of the estate assets unless a restraint is placed upon the disposal of any of the assets of Ghosh Enterprises. As his Honour noted, it is open to Neelanjan to make a further application if it is necessary.
The judge was correct in making this order.

Proposed appeal against order 8 – costs

Order 8 reads as follows:
The plaintiff’s costs of this application be paid by the first defendant without recourse to the assets of the deceased’s estate on a standard basis to be taxed in default of agreement.
Neelanjan’s complaint in relation to order 8 (as contained in ground 6 of his application for leave to appeal) is as follows:
Grounds of appeal against order no 8: these proceedings are brought on by respondent with a fraud Will that purportedly bequeaths the said property owned by applicant. The respondent at the time of using the fraud will for the originating motion would have known that the applicant had owned the property since August 1990 jointly with the applicant’s mother, the deceased and applicant’s father, deceased earlier. Costs should be to respondent.
The following exchange occurred between the judge and Neelanjan in relation to the costs order after the judge handed down his reasons and proposed orders on 22 July 2022:
DEFENDANT:         I have to appeal.
HIS HONOUR:        And that’s fine, but in circumstances where a proceeding was brought, it was contested, I’ve accepted that the material put forward was relevant to the matter 10 that had to be determined and I’ve been – made orders, essentially those that your brother sought - - -
DEFENDANT:         Your Honour, the - - -
HIS HONOUR:        - - - it would be very – had to be very unusual for costs not to follow the event.
DEFENDANT:         Your Honour, the proceedings are brought but there was no attempt made by the plaintiff or the – or the lawyers for any mediation, for any compromise, for any discussion, and no attempt at all.
HIS HONOUR:        Mr Ghosh - - -
DEFENDANT:         And all attempts from - - -
HIS HONOUR:        I’m satisfied that it was appropriate for the proceeding to be brought. I’m satisfied that the matter would be very unlikely to have been resolved by some mediation in light of the proceedings that have been taken.
DEFENDANT:         Well, in - - -
HIS HONOUR:        And I’m satisfied that there was urgency because of the decaying state of the deceased’s body.
The judge exercised his discretion in ordering that Neelanjan pay Anaban’s costs. There was no error in the exercise of that discretion. The judge rightfully considered that Neelanjan had caused Anaban to issue the proceeding which was primarily directed to ensuring that his mother’s body could be cremated. The suggestion that Neelanjan would have engaged in some form of mediation or discussion with his brother as to the disposal of the body is fanciful — his correspondence and his submissions to the judge and on these applications made it abundantly clear that he was convinced that his mother was the subject of criminal conduct at Monash, demanded an inquest and would not take no for an answer.
Anaban’s only recourse was to come to court and the judge rightly determined that Neelanjan’s opposition was unjustified and that he should pay the costs of the application.
It was a proper exercise of the judge’s discretion.
This proposed ground fails.

The application to stay the orders of the judge

This application is simply a mirror of the appeal and is an abuse of process. It should be dismissed.

Conclusion

Both the application for leave to appeal and the application to stay the orders of the judge should be dismissed. There should be no order as to costs.
---

[2023] VSCA 77

19 April 2023