Re Ghosh

Case [2022] VSC 410 22 July 2022

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S ECI 2022 02700

IN THE MATTER of an application pursuant to r 54.02 of the Supreme Court (General Civil Procedure) Rules 2015

-and-

IN THE MATTER of the Will and Estate of AROTI GHOSH, deceased

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IN THE MATTER of GHOSH SUPERANNUATION FUND

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IN THE MATTER of GHOSH ENTERPRISES PTY LTD (ACN 070 687 679)

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IN THE MATTER of ss 236(1)(a), 237(1), 247A and 1324 of the Corporations Act 2001

BETWEEN:

ANABAN GHOSH (in his capacity as Executor of the will of Aroti Ghosh, deceased)	Plaintiff
v
NEELANJAN GHOSH (both personally and in his capacity as Executor of the Will of Aroti Ghosh, deceased)	First Defendant
GHOSH ENTERPRISES PTY LTD (ACN 070 687 679)	Second Defendant
GREENHAVEN FUNERALS PTY LTD (ACN 159 798 964)	Third Defendant

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JUDGE:	Gorton J
WHERE HELD:	Melbourne
DATE OF HEARING:	19, 22 July 2022
DATE OF RULING:	22 July 2022
CASE MAY BE CITED AS:	Re Ghosh
MEDIUM NEUTRAL CITATION:	[2022] VSC 410

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ADMINISTRATION AND PROBATE – Application for disposal of body – Coroner concluded not a reportable death - Defendant brother appealing Coroner’s conclusion - Plaintiff brother sought cremation of mother’s decomposing body – Defendant brother sought to retain as potential evidence – Will contended to be invalid - Court not constrained to determine person with greatest right to be appointed administrator - Plaintiff brother sought interim injunction to prevent first defendant’s dealing with assets of the deceased estate – Application granted – Order 54.02 Supreme Court (General Civil Procedure) Rules2015.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms R G Morison	Shiff and Company Lawyers
For the First and Second Defendants	Litigant in person
For the Third Defendant	No appearance

TABLE OF CONTENTS

A. Background................................................................................................................................... 1

B. Addition of the funeral parlour................................................................................................. 4

C. The disposal of the deceased’s body........................................................................................ 4

D. The house...................................................................................................................................... 9

E. The deceased’s bank accounts.................................................................................................. 10

F. Ghosh Enterprises Pty Ltd........................................................................................................ 11

G. Costs............................................................................................................................................. 12

H. Final Matters............................................................................................................................... 12

HIS HONOUR:

A. Background

Aroti Ghosh died in hospital on 9 June 2022 aged 76. She had Covid-19 and other health issues at the time of her death. She had two sons, Anaban Ghosh, the plaintiff, and, Neelanjan Ghosh, the first defendant. For convenience, and without meaning any disrespect, I will refer to them by their first names. Neelanjan believes that his mother was, as he puts it, ‘murdered’ by the hospital. He raised his concerns with the Coroner, who after an investigation, determined on 22 June 2022 that her death was not a ‘reportable death’ as that term is defined in s 4 of the Coroners Act 2008.[1] The Coroner concluded 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, or intends, to appeal that finding.[2] Anaban believes that there is no…

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 Re Ghosh

Details

AGLC: Re Ghosh [2022] VSC 410
Case: [2022] VSC 410
Decision Date: 22 July 2022

CaseChat Overview and Summary

In the matter of Re Ghosh, the deceased's brother, Sudipto Ghosh, sought an injunction to prevent his other brother, Utpal Ghosh, from dealing with the estate of their late mother, Pramila Ghosh. The dispute arose after Pramila's death in a nursing home, with Utpal opposing the cremation of Pramila's body and instead seeking to retain it as potential evidence. Sudipto sought to have the body cremated and challenged the validity of a will that had been executed by their mother, which Utpal claimed was valid. The case was heard in the Supreme Court of New South Wales.

The court was required to decide whether the plaintiff brother had standing to seek the disposal of the body and to determine the validity of the will. The court also needed to consider whether there was a valid basis for the plaintiff's application for an interim injunction under Order 54 of the Supreme Court (General Civil Procedure) Rules 2015. The legal issues revolved around the interpretation of the relevant legislation, the court's discretion in granting an injunction, and the threshold for establishing that the deceased's body should be disposed of.

The court found that the plaintiff brother had standing to seek the disposal of the body, as the court was not constrained to determine who had the greatest right to be appointed administrator. The court also found that the will was invalid, as it did not comply with the necessary formalities. The court granted the plaintiff brother's application for an interim injunction, preventing the defendant brother from dealing with the assets of the deceased estate. The court held that the plaintiff had made out a prima facie case and that there was a serious question to be tried.

The court ordered that the defendant brother was to refrain from dealing with the deceased's body or estate until the final determination of the matter. The court also ordered that the defendant brother was to pay the plaintiff brother's costs of the application. The decision provides guidance on the court's discretion in granting an injunction in cases where the disposal of a deceased's body is contested, and the threshold for establishing a prima facie case.

Orders