Rutherford v Wallace

[1999] NSWCA 299

CITATION:	Rutherford v Wallace [1999] NSWCA 299
FILE NUMBER(S):	CA 40330/97
HEARING DATE(S):	30 June 1999
JUDGMENT DATE:	22 September 1999
PARTIES :	Lindsay Normal Rutherford - Appellant Lynne Marie Wallace - Respondent
JUDGMENT OF:	Beazley JA at 1; Giles JA at 2; Fitzgerald JA at 41

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	DC 1457/97
LOWER COURT JUDICIAL OFFICER:	Patten DCJ

COUNSEL:	D Leamey - Appellant R N Winfield & N Jackson - Respondent
SOLICITORS:	D Leamey - Appellant Anne-Marie Blake & Associates, Woy Woy - Respondent
CATCHWORDS:	Rights of Burial - Local Government Act 1919 - Implied/constructive trust.
DECISION:	(by majority) Appeal dismissed with costs.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40330/97
DC 1457/97

BEAZLEY JA
GILES JA
FITZGERALD JA

Wednesday 22 September 1999

Lindsay Norman RUTHERFORD v Lynne Marie WALLACE

JUDGMENT

1    BEAZLEY JA: I agree with Giles JA.

2    GILES JA:. The wife of Mr Lindsay Rutherford, whom I shall refer to simply as the appellant, died in the early hours of 20 May 1983. Many of the children of the marriage were at his home during the day. There was discussion of where the appellant’s wife was to be buried. In circumstances to which I will come, one of the children arranged for the acquisition of a Right of Burial in an allotment in the Waverley Cemetery and the Right of Burial was put in the name of the respondent, another of the children. A few days later the appellant’s wife was buried in the allotment.

3    The Right of Burial carried an entitlement to an additional burial in the allotment. The appellant wished to be buried with his wife. But he and the respondent became estranged, and by late 1996 they were in dispute as to the control over the Right of Burial. In March 1997 the appellant brought proceedings against the respondent in the District Court, claiming a declaration that she held her interests, rights and entitlements to property, being the allotment as described in the Right of Burial certificate, on trust for him, and orders that she be restrained from disposing of or otherwise dealing with her interest, rights and entitlements to the property and transfer the property to him.

4    Patten DCJ found against the appellant, and dismissed his proceedings with costs. The appellant appealed, with leave, seeking to have his Honour’s determination set aside and the declaration and orders as originally claimed.

5    The appeal was heard on 30 June 1999. As later described, a question of the constitution of the proceedings arose, leave was given to join the estate of the appellant’s wife as a party to the proceedings, and the argument included argument prospectively on behalf of the estate. On 17 July 1999, before the joinder of the estate had been effected, the appellant died. In due course the appellant’s executor was substituted as appellant and the administrator of the estate of his wife was joined as an appellant. At a brief further hearing on 24 August 1999 some consequential matters were dealt with: it is unnecessary to go into them.

6    We were informed of arrangements to preserve the body of the appellant so that, if the appeal succeeded, he could be buried as he had wished. It is convenient to continue to refer to Mr Lindsay Rutherford as the appellant.

7    This is a distressing case. At the time of the appeal the appellant was aged about 84, and there is no reason to doubt his wish to be buried with his wife. The estrangement with the respondent involved allegations of sexual assault: it should be said at once that the appellant denied the allegations, and that the proceedings in the District Court and this appeal did not and do not involve determining whether there is any substance in the allegations. The dispute appears to have divided the family. Strong emotions are understandable. But court proceedings can only entrench, even exacerbate, a breakdown in relationships which in future years might be regretted.

8    In the hope that, even at a late stage, there could be an agreed rather than imposed resolution of the dispute, when the appeal was called on the Court invited the parties to consider mediation, and the services of a Registrar of the Court, a trained mediator, were made available to them. The parties took up the opportunity, but we were informed that agreement could not be reached.

9    The resolution of the dispute must therefore be according to law. Neither Patten DCJ nor this Court could or can give effect to abstract notions of justice in the relationship between the appellant and the respondent, and no doubt they would have disagreed on what was just between them. Whether the appellant’s claim has been made out must be decided by the application of legal rules as to property and obligations to the facts as found on the evidence.

The District Court proceedings

10    The proceedings were commenced by a Notice of Application supported by affidavits. This was incorrect, as they were not brought under an Act other than the District Court Act 1973 (see District Court Rules Pt 5 r 7), and they should have been brought by an ordinary statement of claim (see District Court Rules Pt 5 r 6). Patten DCJ raised the form of the proceedings, but the respondent took no objection and the case proceeded notwithstanding the inappropriate initiating process.

11 As a result, neither the capacity in which the appellant brought the proceedings nor the basis on which he did so were set out in the originating process. Before the evidence began his Honour was told that the case was “an equitable case” invoking the District Court’s jurisdiction to declare the existence of a trust in relation to property which did not exceed $20,000 in value (see s 134(1)(e) of the District Court Act). There was no suggestion that the appellant brought the proceedings in some manner on behalf of the estate of his wife or as a claimant through the estate of his wife, and it was common ground in the appeal that the case was dealt with before his Honour as a claim by the appellant directly in his personal capacity.

12    There were eight children of the appellant’s marriage, whom without intending any disrespect I will identify only by their first names: Rosemary, Margaret, Ralph, Natius, Paul, Lynne (the respondent), Peter and William. There was affidavit evidence relevant to the acquisition of the Right of Burial in the appellant’s case from the appellant, Ralph, Peter and William. The appellant and Peter were cross-examined. There was affidavit evidence relevant to the acquisition of the Right of Burial in the respondent’s case from the respondent and Natius, both of whom were cross-examined. The appellant and Peter said that all the children were present when there was discussion of the burial of the appellant’s wife and the acquisition of the Right of Burial was arranged, but his Honour found that Natius was not present at all and that Ralph was not present until after the arrangements had been made.

13    The representative of a funeral director was at the home on 20 May 1983, a Friday. He said that there was no room for the appellant’s wife at Waverley Cemetery (and may have referred to other cemeteries in the same area), but there was room at Northern Suburbs Cemetery. Rosemary had been an alderman of Waverley Council. She said she would see what she could do, made a telephone call or calls, and returned and said to the others present words to the effect “I have found a plot in Waverley”.

14    Rosemary had died, and did not give evidence before Patten DCJ. However, the evidence included a receipt issued by Waverley Council dated 20 May 1983, recording the receipt from the respondent of $425.00 for allotment 107 in section 4 of Waverley Cemetery and noting the appellant’s wife as the deceased. The $425.00 was said to be made up of $300 for “Purchase Burial Right” and $125.00 for “Stamp Duty Right of Burial Certificate”. The evidence also included a Right of Burial certificate dated 20 May 1983 in the form -

“COPY No 3610
(Crest)
RIGHT OF BURIAL
This is to certify that the Council of the Municipality of Waverley, Trustee of the Waverley Cemetery, in consideration of the payment to it of the sum of $300.00, has granted to Lynne Jattke of 1/36 Banks St. Monterey the exclusive Right of Burial in Allotment No 107 in the General Section (3 feet by 8 feet) in the said Cemetery, subject to the conditions prescribed by the Cemetery By-Laws or any Ordinances or Regulations now or hereafter brought into force relating to the said Cemetery.
Dated this Twentieth day of May 1983
Certified correct, and duly registered by

(signed Cemetery Clerk (Signed)
Secretary to Trust.”

15    Peter said that he gave $100 in cash to Rosemary, and Ralph gave $200 to Rosemary. There was no evidence as to the source of the remaining $125.00 paid to Waverley Council. Each of the appellant, Peter, William and Ralph said that the money was given to Rosemary on 21 May 1983, the Saturday, upon Rosemary saying that she had to pay $300.00 by 9 o’clock on the following Monday, but the dates on the receipt and the Right of Burial certificate, amongst other things, caused his Honour to find that the acquisition of the Right of Burial was arranged on 20 May 1983.

16    According to Ralph, the appellant subsequently reimbursed to him the $200 he had paid. When and in what circumstances the appellant did so were not explained. According to Peter, when he and Ralph gave Rosemary the cash amounts the appellant said, “I’ll fix you up for it later boys”; he (Peter) said “Don’t worry about it Dad, we can afford it”; and the appellant said “No, I want to fix you up for it this time, because I won’t be around next time, and you have to pay for it then”. There was no evidence of reimbursement to Peter. The appellant gave no evidence in relation to an offer of reimbursement or reimbursement to either Peter or Ralph. According to Peter, he paid for the funeral expenses, and again there was no evidence that he was reimbursed.

17    The Right of Burial certificate recorded a grant to the respondent, then Lynne Jattke. There was conflict in the evidence as to what was said between the family members about putting the Right of Burial in the respondent's name.

18    The funeral of the appellant’s wife took place on Monday, 23 May 1983. The family members were gathered at the appellant’s home. According to the appellant, on this occasion Rosemary asked “Whose name do you want the plot in?”, and he said “Might as well put it in Lynne’s name, as she is the youngest”. Later he said to the respondent, “We had to put the plot in somebody’s name so we put it in your name. Is that alright by you?”; the respondent said that it was; and he said, “Well I expect to be buried there too, as you’re the youngest you’ll have to look after it”; and the respondent said, “That will be alright, I’ll look after it”. Peter gave evidence to the same effect, adding that Rosemary then gave the respondent some papers saying “You look after them, you’ll need to keep the receipt”. William gave evidence limited to the respondent saying to the appellant words to the effect, “It will be alright Dad, I’ll look after it for you when it’s your time”, and Rosemary giving some papers to the respondent and saying, “Here you look after these, you’ll need to keep the receipt”.

19    The respondent’s evidence, however, was that Rosemary had given her the receipt from the Waverley Council on 20 May 1983, and had said at that time words to the effect, “You know the grave is in your name because you are likely to live the longest to look after it for Mum. You had better have the papers. It’s been paid for.” The respondent denied the Monday conversation as recounted by Peter, and so must be taken to have denied the Monday conversation as recounted also by the appellant. According to the respondent, in fulfilment of what she had said to Rosemary she thereafter maintained her mother’s grave, and some years later made arrangements for the erection of a headstone and to have contributions from some of her siblings. Still according to the respondent, the appellant initially declined to contribute to the cost of the headstone, but then told her not to worry the other children and that he would pay for it; he did so.

20    His Honour noted that there were difficulties in accepting the evidence of the appellant and Peter as to all the conversations, and said that he regarded the appellant’s version of the conversations as unreliable. His finding carried with it that he did not accept, amongst other things, what the appellant, Peter and William said as to conversations with the respondent on 23 May 1983 about putting the Right of Burial in her name, and in particular about the appellant’s expectation of being buried there. It is unnecessary to set out his Honour’s reasons for this, since his Honour’s findings of primary fact were not challenged on appeal.

21    What remained may be summarised as follows -

(a) the acquisition of the Right of Burial was arranged by Rosemary on 20 May 1983;
(b) Rosemary caused the Right of Burial to be acquired in the name of the respondent;
(c) She did so because the respondent was the youngest daughter and for that reason thought by her best fitted to look after their mother’s grave;
(d) the money paid to Waverley Council came from Peter as to $100 and from Ralph as to $200; the source of the remaining $125 being unknown (by elimination, it may have come from Rosemary);
(e) at some time the appellant reimbursed Ralph, but he did not otherwise bear the cost of the Right of Burial or other funeral expenses; and

(f) there was no communication between the appellant and the respondent in which the appellant expressed or the respondent acknowledged an expectation that the appellant would also be buried in the allotment, or to the effect that the allotment would be “looked after” for the appellant.

The Right of Burial

22    The Right of Burial certificate issued by Waverley Council was in the form prescribed under Ordinance 68 made under the Local Government Act 1919 then in force. Section 446 of that Act empowered councils to provide, control and manage public cemeteries within or outside their areas. By s 452L, ordinances could be made for or with respect to the care, control and management of such cemeteries, hence Ordinance 68.

23    The Ordinance provided for the division of cemeteries into sections and of the sections into numbered allotments. By cl 19(1), on payment of the appropriate charge fixed by the council it could “issue Rights of Burial which shall be in or to the effect of the form prescribed in Schedule A hereto, giving the exclusive Right of Burial into one or more specified allotments of the cemetery …”. By cl 19(2), Rights of Burial could be transferred or transmitted. By cl 19(3), burials were not allowed in any allotment in respect of which a Right of Burial had been issued unless with the consent in writing of the then holder of the Right of Burial.

24    From earlier clauses in the Ordinance, the Right of Burial could be exercised by interment in a grave or interment in a vault. Confining attention to graves, a minimum size of the allotment for a grave was specified, and by cl 6 not more than two adults were to be buried in any one grave. It followed that a Right of Burial encompassed the burial of two persons, with the consent of the holder at the time of the Right of Burial.

25    The Right of Burial referred to conditions prescribed by the Cemetery By-Laws. There was handed up to us a document purportedly issued by Waverley Council as “By-Laws and the administration of such” for Waverley and South Head General Cemeteries. The legal foundation for the by-laws, and when they were made, was not explained. So far as relevant, they provided for the issue of “a Certificate which evidences a Right of Burial for each grave which may be purchased”, and contemplated “transfer” of a grave or of the “Right of title or interest” therein (paras 11, 12). The Council could “for any good and sufficient reason cancel and revoke any individuals [sic] entitlement authorised by the Certificate”. They stated that not more than two adults should be interred in any grave, save that at the discretion of the Council a third interment could be permitted after 30 years (paras 8, 9). No one referred to the by-laws in submissions. It would be inappropriate to pay regard to them when their provenance is unknown, but in any event I do not think their terms affect the outcome of this appeal.

26    The Local Government Act 1919 was repealed and replaced by the Local Government Act 1993. Neither party suggested that the repeal was material to the appellant’s claim.

27 The nature of an exclusive right to burial, and its incidents, are far from clear. A general discussion can be found in Young, “The Exclusive Right to Burial”, 39 ALJ 50. This appeal was conducted on the basis that what was acquired from Waverley Council was a licence to bury the appellant’s wife and another person in the allotment, irrevocable at least as to the person buried once that person was buried in the allotment and with ancillary rights to have the body or bodies remain undisturbed and to care for the grave: cf Smith v Tamworth City Council (1997) 41 NSWLR 680 at 694-5. The licence was taken to be an item of property, a chose in action capable of being transferred or transmitted (as the Ordinance provided) and capable of being held on trust. For the purposes of these reasons I will assume this common ground between the parties.

The appeal

28    There were no less than 70 grounds in the notice of appeal. On their face a great many were misdirected, and others were obscure or downright unintelligible. The written submissions filed on behalf of the appellant bore a passing resemblance to some of the grounds of appeal, but the relationship was at times distant and the written submissions had their own deficiencies of the same nature as the deficiencies in the notice of appeal. Fortunately, the oral submissions on behalf of the appellant were confined to two arguments, and it was said that any grounds of appeal and any part of the written submissions not taken up in or supportive of the oral submissions should be ignored. It is therefore sufficient to concentrate on the two arguments.

(a) Trust for the estate

29    The primary argument for the appellant was that, in the acquisition of the Right of Burial, Rosemary was acting as what was described as the agent of her mother’s estate, fulfilling on behalf of the appellant his responsibility for burying his wife, with the property so acquired being the property of the estate. It was then said that the appellant was the sole beneficiary of his wife’s estate, so that he was beneficially entitled to the property, and in particular to what was said to be the separable licence to bury a second person in the allotment, and could claim the declaration and other orders in question.

30    Before getting to the substance of the argument, it raised at least two matters. The appellant’s wife had died intestate, and no letters of administration had been taken out. The evidence before Patten DCJ included reference to a bank account, but no real attempt was made to establish the extent or value of her estate. That is not surprising, since before his Honour the appellant’s claim had not been on behalf of, or through, the estate of his wife, and the argument presented on appeal was a new basis for his claim. First, it was necessary that the estate be a party to the proceedings, either as claimant or joined a respondent to the appellant’s claim, and that there be at least a limited grant of representation for the purposes of these proceedings. Secondly, it was necessary that there be evidence, or agreement, that the nature and value of the estate of the appellant’s wife was such that the appellant alone was entitled to it on intestacy.

31    When the constitution of the proceedings was raised it was said on behalf of the appellant that an appropriate grant of representation would be obtained, and the leave earlier mentioned was given. Commendably, although not without an initial contrary disposition, the respondent was able to concede that the appellant was the sole beneficiary on intestacy of his wife’s estate, and to waive any objection to the appellant putting the case on appeal on this different basis from that on which it had been put in the District Court. So the way became clear for the substance of the argument.

32    If during his lifetime a person acquires a Right of Burial, with a view to his own burial, the burial of himself and/or another person, or otherwise, it can readily enough be said that the item of property forms part of his estate. To the extent that there is a licence to bury a second person in the allotment, the item of property in that respect can arguably devolve upon the beneficiary entitled to his estate: whether that can stand with the devolution of the “right to control the grave” mentioned in Smith v Tamworth City Council at 694 was not the subject of submissions. Even in such a case, however, the person acquiring the Right of Burial during his lifetime will not necessarily hold whatever rights it gives on trust for the other person whom he had in mind, see Beard v Baulkham Hills Shire Council (1986) 17 NSWLR 273 at 275.

33    But the acquisition of a Right of Burial after the death of the person whose estate is in question is a different case. If a Right of Burial be taken to be limited to burial of one person, then a spouse, a child, a friend, or even a stranger can acquire the Right of Burial and cause the deceased to be buried in the allotment without the Right of Burial being or becoming part of the estate of the deceased person. That, indeed, was the case in Smith v Tamworth City Council, where Mrs Konz obtained the Right of Burial and caused her adopted son David to be buried in the allotment. She held the relevant rights - the rights were not assets in David’s estate. It will be a question of fact whether the Right of Burial is acquired as property of the estate of the deceased or as property of someone else. And the facts will include, if the Right of Burial permits the burial of more than one person, that fact, as something material to whether the Right of Burial is acquired as property of the estate of the deceased or as property of someone else.

34    In my opinion, in the present case the facts do not support the appellant’s argument. There was nothing to indicate that Rosemary was acting otherwise than as a daughter concerned to ensure a fitting burial for her mother, and there is no need to ascribe to her the position of an agent of her mother’s estate or of the appellant as the person in law responsible for the burial of his wife. It would be artificial to regard those present as acting on that basis - they were not starting from a position that the appellant was in law responsible for the burial of his wife. The money paid to Waverley Council, so far as its source is known, came initially from Peter and Ralph as sons also concerned to ensure a fitting burial for their mother, and on the evidence of Peter not with the expectation that they would be reimbursed or that, if reimbursed, they would be reimbursed from the estate of their mother - on the contrary, if the appellant’s explanation to them be accepted, he wished to reimburse them from his own pocket, because they would not be reimbursed from his estate when his time came. And Rosemary’s action in acquiring the Right of Burial in the name of the respondent, and her explanation to the respondent for doing so, are quite inconsistent with her having acquired the Right of Burial as property of the estate of her mother.

35    There is the additional consideration of the licence under the Right of Burial to bury a second person in the allotment. It may or may not be separable from the now irrevocable licence (on the assumed common ground earlier mentioned) to bury the appellant’s wife, and is what this case is really about. No one at the time was thinking of that as part of an item of property, and so property of the estate of the appellant’s wife. Given that the conversations on 23 May 1983 so far as they included the appellant’s expectation of burial in the allotment were not accepted, there was no evidence of anyone referring to the Right of Burial as extending beyond the immediate burial of the appellant’s wife. Indeed, if the evidence of Peter on this matter be accepted - and whether his Honour’s observations concerning Peter’s evidence extended to his evidence in this respect is unclear - the appellant did not at the time think that whatever Rosemary had arranged went beyond the burial of his wife, because he contemplated a further payment in relation to his own burial. The respondent said that she thought she realised at the time that the allotment could accommodate her mother and someone else, but there was no evidence of that being spoken of between the members of the family.

36    In my view, it should not be held that the Right of Burial was acquired in any manner on behalf of the estate of the appellant’s wife, as to the burial of the appellant’s wife and still less if it be separable as to the burial of a second person in the allotment. It was acquired in the name of the respondent with a view to the respondent having whatever rights it gave, because she was thought to be the appropriate person to hold those rights. The appellant’s claim, of course, takes as its starting point that the Right of Burial was in law the respondent’s property. I do not think any reason has been shown to conclude that the respondent held that property on behalf of the estate of the appellant’s wife.

(b) Common intention trust

37    The label for the second argument is that given to it by the appellant. The argument was that it should be found that there was what was called an implied trust, alternatively what was called a resulting trust (sometimes a constructive trust), of the Right of Burial in favour of the appellant as beneficiary.

38    The basis or bases for the trust were articulated, to the extent that they were, in a less than satisfactory manner. In the oral submissions it was said that one or other of the trusts should be found because the appellant had paid at least $200 towards the Right of Burial and was prepared to reimburse the other $100, the respondent was a volunteer, and “equity should impose an obligation on her to acknowledge his right”. It was also said that the appellant had not made the arrangement to acquire the Right of Burial himself in reliance on the arrangement being made “properly”, that is, with himself entitled to control the Right of Burial. There was reference to the lottery ticket case of Voulis v Kozary (1975) 180 CLR 177. In the written submissions the relevant submission was to the effect that, on equitable principles of unconscionability, a remedial trust should be imposed because it would be against conscience for the respondent to assert a beneficial entitlement to the Right of Burial, with general reference to Allen v Snyder (1977) 2 NSWLR 685, Muschinski v Dodds (1985) 160 CLR 583, Baumgartner v Baumgartner (1987) 164 CLR 137 and Bathurst City Council v P W C Properties Pty Ltd (NSWCA, 11 April 1997, unreported). There was no identification or application in the course of submissions of the equitable principles on which reliance was placed.

39    It is unnecessary to explore those principles. On the facts as found, even if the appellant believed that he would be ultimately buried with his wife, there was nothing to show that the belief was made known to the respondent in connection with the acquisition of the Right of Burial. As I have indicated, there was no evidence of reference to the fact that the Right of Burial extended beyond the burial of the appellant’s wife. The Right of Burial was put in the name of the respondent, so far as she was concerned, for the reason given by Rosemary, and not with a view to the burial of the appellant in the allotment pursuant to an entitlement under the Right of Burial. That the appellant reimbursed Ralph for the $200 does not mean that the appellant gained a beneficial interest in the item of property (he did not otherwise pay the funeral expenses), see Smith v Tamworth City Council at 695-6. There was no evidence at all about the appellant not making the arrangement himself because he relied on it being made properly. There can be nothing unconscionable, in any legally relevant sense, in the respondent asserting as against the appellant a beneficial interest in the Right of Burial.

40    In my opinion the appeal should be dismissed with costs.

41    FITZGERALD JA: The circumstances giving rise to this appeal are set out in the reasons for judgment of Giles JA. Despite his death and the other developments in this macabre dispute since the appeal was argued, I will continue to refer to the late Lindsay Norman Rutherford as the appellant.

42    Both appellant and respondent began from the premise that, as the grantee of the Right of Burial, the respondent has contractual or quasi-contractual rights against Waverley Council in relation to the plot in Waverley Cemetery where her deceased mother, the appellant’s deceased wife, is buried, including the right to determine the other person to be buried in that plot. Neither party considered it significant for the purpose of this proceeding whether the rights are a mere chose in action or an interest in real property: see Smith v Tamworth City Council (1997) 41 NSWLR 680, 695. The appellant claimed that the rights are held by the respondent on his behalf, and that he is entitled to be buried in the plot, while the respondent claimed that she, and she alone, has any interest in the rights, and is entitled to decide who is buried in the plot and to deny the appellant his wish that he be buried there.

43    I agree with Giles JA that the appellant is not entitled to succeed on the basis of any express arrangement between the parties or between the parties and one or more of the appellant’s other children.

44    However, in my opinion, nor is the respondent entitled to succeed on such a basis. Further, the circumstance that the respondent was named as grantee of the Right of Burial and her sister Rosemary’s reason for arranging for that to occur are of little, if any, significance. Neither Rosemary nor the respondent had any authority to determine ownership of the material rights. Both the appellant and respondent agree that the reason why the Right of Burial was “put in” the respondent’s name was that, as the youngest, she was thought “likely to live the longest …”. Further, in the actions which she took, Rosemary was, to my mind, plainly acting only as an agent.

45    In one sense, Rosemary was doubtless acting on behalf of all family members, i.e., the appellant and his children, including the respondent, and it might be argued that the rights were granted to the respondent to hold for the entire family, or at least those who contributed to the acquisition price. It seems to me more likely that all concerned would have intended that the respondent hold the rights for the family rather than for herself solely in circumstances where she made no contribution to the acquisition of the rights and the Right of Burial was “put in” her name merely because she was the youngest family member.

46    I am also of opinion that it is unconscionable for the respondent to claim an exclusive entitlement to the rights contrary to what was intended, if, as I consider is the correct inference, she was aware that the other family members did not intend the rights to vest solely in her.

47    As I understood the appellant’s argument that the respondent holds the rights on his sole behalf, it was put on a number of at least partially overlapping bases, namely:

(i) the proper inference from the circumstances, including his role as husband of the deceased and father of the children and his payment of a substantial part of the acquisition price, is that the family intended that the respondent hold the rights for him;

(ii) as the person entitled to administer his deceased wife’s estate and sole beneficiary:
(a) his was the only relevant intention and he intended that the respondent hold the rights on his behalf; or
(b) he is entitled to exercise the rights because he is entitled to control his deceased wife’s grave.

48    In considering this aspect of the matter, it is necessary to distinguish between the appellant’s personal capacity, including his personal entitlements as beneficiary of his deceased wife’s estate, and his representative capacity as the person who had the highest right to take out administration of that estate. Smith v Tamworth City Council (1997) 41 NSWLR 680, 694A-B. Of course, the latter right ceased with his death.

49    I agree with Giles JA that the rights were not an asset of the appellant’s deceased wife during her lifetime and did not, as such, pass to the appellant as her beneficiary. Further, the rights did not become part of the deceased wife’s estate by intentional acquisition for transmission, which then passed to the appellant as her beneficiary. As is presumably common, family members who could afford to do so contributed to the cost of acquisition, almost certainly without thought of legal or equitable ownership of the rights, legal obligations or entitlement to reimbursement. Smith v Tamworth City Council (1997) 41 NSWLR 680, 694C.

50    Consistently with the learned discussion of this esoteric topic by Young J in Smith v Tamworth City Council, (1997) 41 NSWLR 680. there seems to me to be no sufficient basis in the circumstances of this case to hold that the ordinary legal consequences did not ensue when the appellant’s wife died; i.e., that the appellant, as the person entitled to administration of his deceased wife’s estate, had the right to control her grave, subject to any arrangement to the contrary with other family members. The evidence does not establish such an arrangement.

51    According to Smith v Tamworth City Council, 41 NSWLR 680, 694E. after the appellant’s death the rights to control his deceased wife’s grave did not pass to his legal personal representative but to his deceased wife’s legal personal representative.

52    Four propositions seem to me to follow:

(a) The appellant’s entitlements in respect of his deceased wife’s grave, apart from personal rights as her husband and therefore a family member, did not accrue to him in his capacity as her beneficiary but in his capacity as her administrator.

(b) His entitlements ceased on his death.

(c) Those entitlements then passed to all surviving children, As the persons entitled to administer their deceased mother’s estate. including the respondent.

(d) However, the entitlements have now passed to the appellant’s son, Peter as the administrator of his late mother’s estate.

53    I share Giles JA’s view that this is a distressing case, and accept the considerable force in his opinion that the appeal should be dismissed. The proceeding has altered drastically since it was initiated without adequate thought, and I certainly would not order the respondent to pay the appellant’s costs. Rather, I consider that each party should bear his or her costs, which, hopefully, will be limited by the lawyers involved to take account of their limited contribution in presenting the parties’ competing arguments.

54    On balance, I think it better not to merely dismiss the proceeding but to make a declaration which might help to avoid future disputation. I would accordingly declare that the respondent is not solely entitled to the rights associated with the Right of Burial but holds those rights on behalf of the administrator of the estate of her deceased mother.

55    This outcome is, to my mind, dictated by the circumstance that only one of the children of the appellant and his deceased wife is presently the administrator of her estate. Nothing I have said is intended to limit in any way the rights of the other children, in their capacity as the surviving children of the appellant’s deceased wife.

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