Kovac v Chanak - [2017] NSWSC 1023

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Kovac v Chanak [2017] NSWSC 1023
Hearing dates: 4, 5, 6, 31 July 2017
Decision date: 31 July 2017
Before: Kunc J
Decision:
Orders to be made for transfer of burial licences

Catchwords: ESTOPPEL — Promissory estoppel — Burial plot licences — Relief
Cases Cited: Arfaras v Vosnakis [2016] NSWCA 65
Beard v Baulkham Hills Shire Council (1986) 7 NSWLR 273
Vosnakis v Arfaras [2015] NSWSC 625
Walton Stores v Maher (1988) 164 CLR 387; [1988] HCA 7
Category: Principal judgment
Parties:
Ljubica Kovac (Plaintiff)
George Milan Chanak (Defendant)
Representation:
Counsel:
G McGrath (Plaintiff)
S F Hughes (Defendant)
Solicitors:
Yuill Lawyers (Plaintiff)
Wilshire Webb Staunton Beattie (Defendant)

File Number(s): 2015/268927
Publication restriction: No

EX TEMPORE Judgment (REVISED)

Summary

On 22 June 2012, Jovan Kovac (“Jovan”) was buried in plot 033-J-COE (“plot 33”) at Mona Vale Cemetery (the “Cemetery”). At the time, the Cemetery was under the control of what was then known as Pittwater Council.
Jovan’s burial in plot 33 took place with the consent of the defendant, George Chanak, Jovan’s first cousin. Without disrespect, I shall refer to the various family members involved in these proceedings by their given names.
George holds the burial licence for two adjacent plots: plot 33 and plot 34 (the “Licence”). Jovan’s father, Milan, is buried in plot 32. Putting matters neutrally, there is no doubt that George offered to facilitate Jovan’s wish to be buried next to his father by offering to allow Jovan to be buried in plot 33. The dispute between the parties is whether, shortly before Jovan’s death, George offered to transfer plot 33 and plot 34 to the plaintiff, Ljubica Kovac (“Libby”), so that one day Jovan’s wife, Nada, could be buried in plot 34 next to Jovan. Libby is Jovan and Nada’s daughter and the executrix of Jovan’s estate.
There was no real dispute between the parties about the applicable law. The rights created by the Licence are contractual rather than proprietary: Beard v Baulkham Hills Shire Council (1986) 7 NSWLR 273. Otherwise the law in relation to burial licenses and estoppel has recently been exhaustively considered in the factually similar decision of the Court of Appeal in Arfaras v Vosnakis [2016] NSWCA 65 (per Ward JA; Beazley P and Simpson JA agreeing), upholding the decision of Robb J in Vosnakis v Arfaras [2015] NSWSC 625. The parties accepted that this case would primarily fall to be determined on the facts.
The parties’ versions of events were diametrically opposed and each side denied the other’s version of the critical conversations. No one departed from their evidence under cross-examination. Libby and four other members of the Kovac family gave evidence that George had represented to Libby that he was giving her plots 33 and 34. On the other hand, George, supported by his daughter, Rebecca, said that all he had done was to grant Jovan’s dying wish to allow Jovan to be buried next to his…

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 Kovac v Chanak

Details

AGLC: Kovac v Chanak [2017] NSWSC 1023
Case: [2017] NSWSC 1023
Decision Date: 31 July 2017

CaseChat Overview and Summary

The case of Kovac v Chanak involved the applicants, Kovac, who sought relief from the court against the respondent, Chanak, who held a licence for a burial plot. The applicants argued that the respondent was estopped from denying their entitlement to a burial plot in the cemetery. The case was heard in the Supreme Court of Victoria. The primary issue before the court was whether the respondent was estopped from denying the applicants’ entitlement to a burial plot based on promissory estoppel. The applicants argued that the respondent had made representations that would lead them to believe they had a right to a burial plot. The court had to consider whether the applicants' reliance on these representations was reasonable and if the respondent's position would be unjust without recognising the applicants' claim.

The court examined the principles of promissory estoppel and determined that the applicants had relied on the respondent's representations to their detriment. The court found that the applicants had reasonably relied on the respondent's promise that they would be allocated a burial plot. The court also found that it would be unjust for the respondent to deny the applicants' entitlement to a burial plot. The court ruled that the respondent was estopped from denying the applicants' entitlement to a burial plot. The court's decision was based on the applicants' reasonable reliance on the respondent's representations and the unconscionability of the respondent's position without recognising the applicants' claim.

As a result, the court ordered that the respondent must allocate a burial plot to the applicants. The court's decision provided relief to the applicants and recognised their entitlement to a burial plot based on promissory estoppel. The court's ruling was a significant outcome for the applicants and highlighted the importance of promissory estoppel in preventing unconscionability.

Orders