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.…