Squire v Beech

[2018] NSWLC 17

Local Court

New South Wales

Medium Neutral Citation:	Squire v Beech [2018] NSWLC 17
Hearing dates:	31 October 2018
Date of orders:	22 November 2018
Decision date:	22 November 2018
Jurisdiction:	Civil
Before:	Magistrate Huntsman
Decision:	Verdict for the cross-defendant on the cross-claim. The Statement of Claim is discontinued.
Catchwords:	RESTITUTION - Funeral expenses - claim for travel costs for transport of deceased ashes - executor’s legal rights and obligations - executor’s duties to the deceased body and funeral arrangements - dispute between former wife and adult daughter
Legislation Cited:	Civil Procedure Act 2005 s 56
Cases Cited:	Abraham v Magistrate Stone, Deputy State Coroner [2017] NSWSC 1684 Smith v Tamworth City Council 41 NSWLR 680 Beech v Squire [2018] NSWSC 594 Darcy v Duckett [2016] NSWSC 1756 Equuscorp Pty Ltd v Haxton; Equuscorp Pty Ltd v Bassat; Equuscorp Pty Ltd v Cunningham's Warehouse Sales Pty Ltd (2012) 246 CLR 498; [2012] HCA 7 Escott v Brikha [2000] NSWSC 458 Smith v Tamworth City Council (1997) 41 NSWLR 680 Union Bank of Australia v Harrison, Jones & Devlin Ltd (1910) CLR 492; [1910] HCA 44
Category:	Principal judgment
Parties:	Claire Beech (Cross-claimant/ Defendant) Corrine Ann Squire (Cross- defendant/ Plaintiff)
Representation:	Counsel : Mr A.G.Martin , for the Cross-claimant/Defendant Mr P.R Glissan, for the Cross-defendant/Plaintiff     Solicitors: Branston Neville Lawyers, for the Cross-claimant/Defendant Roderick Storie, Solicitors, for the Cross-defendant/Plaintiff
File Number(s):	2016/00255779
Publication restriction:	Nil

Judgment

Background

1. This is a claim for payment of money said to be owed by the executor of the estate to the daughter of the deceased. The executor is the deceased’s former wife. The daughter transported the deceased ashes to Wales, some months after the funeral, and in the Cross Claimed filed, seeks reimbursement for associated costs of so doing, from the executor of her father’s estate.

2. Ms Squire is the former wife of the deceased, Richard Squire, who died between 29 and 30 April 2015. Ms Squire is the sole executrix and beneficiary of the Will dated 21 March 2007, of her late husband, Richard Squire. On 25 May 2016 the Supreme Court of New South Wales granted Probate of the Will to Ms Squire. At the time of Richard Squire’s death, he had very recently separated from Ms Squire and was residing with his daughter, Ms Beech. Upon his death there was a dispute, between the daughter and the former wife, as to release of the body from the Morgue. Ultimately Ms Squire did not persist in her request that the body be released to her, and the deceased’s body was released to the daughter, Ms Beech, to make funeral arrangements. The funeral was held in Bathurst, New South Wales, and the deceased’s remains were cremated.

3. Some months after the funeral the daughter, Ms Beech, decided to take her father’s ashes to Wales in the United Kingdom. The evidence indicates that Ms Beech’s immediate family members (two children, her husband and an infant) travelled by aeroplane to the United Kingdom, incurring the cost of airfares in the amount of $9522.66. There is also an invoice, for a hire car in the United Kingdom, in the amount of $681.82. In affidavit evidence, Ms Beech states that she and her family travelled to Wales with her father’s ashes, and his whole family including Ms Beech’s family, took the deceased to Brecon Beacons (a national park in Wales) and scattered his ashes by a creek. She states “it was a solemn, respectful and simple occasion without any fanfare or fuss, but very emotional as well of course”. Ms Beech also states “at no time in the eight months between his passing and the return to Wales did Corine [Ms Squire] ever (a). Make a request of me to obtain Dad’s remains (other than the request to the funeral home);(b). Provide any instructions for what she wanted to have done with Dad’s ashes”.

History of proceedings

4. By Statement of Claim filed on 25 August 2016, and amended statement of claim filed 7 December 2016, Ms Squire, as plaintiff and sole executrix and beneficiary of the Will of the late Richard Squire, sought damages in respect of various properties of the deceased said to have been detained by the first defendant, Ms Beech, and the second defendant Paul Squire (children of the deceased). As further explained, the proceedings arising from the Statement of Claim have been resolved by undertakings, and by conduct in accordance with those undertakings, so that the parties agree that the Statement of Claim, at the time of the current hearing before the Local Court, is discontinued.

5. The matter remaining for determination is the cross-claim filed by the first defendant, Ms Beech. By statement of cross-claim dated 31 October 2016 the cross-claimant, being the daughter, Ms Beech, claims $19,641.29 being a claim for funeral expenses in the amount of $7227; and a claim for travel expenses involved in transporting the deceased’s ashes to Wales, in the amount of $12,414.29. The current proceedings were first listed for hearing on 15 August 2017, on that date the hearing was vacated and the Local Court directed that the matter was not to be listed for further hearing until a decision had been given in Supreme Court proceedings 2016/122471. Undertakings were given by the defendant on 15 August 2017, which have led to the Statement of Claim being discontinued. At further mention dates in the Local Court, these proceedings were adjourned pending the outcome of the Supreme Court proceedings.

6. Justice Kunc of the Supreme Court of New South Wales provided a decision on 4 May 2018 – Beech v Squire [2018] NSWSC 594 ­ - which states that the case was in relation to a claim by two adult children, one of whom was Ms Beech, against an insolvent estate, and that the estate was a small estate even if notional estate order made. The decision of Justice Kunc will be referred to where relevant. At [34] of the decision of Justice Kunc, reference is made to the current proceedings as follows:

“Claire transported Richard’s ashes to Brecon Beacons [a place in Wales]. She did this at her own expense at a cost of $11,712. The parties remain in dispute in the Local Court proceedings referred to in paragraph [29] above as to whether the estate is liable to Claire for that expense. Given that estate is insolvent, it seems pointless for that dispute to continue, but that is a matter for the parties. One of the results of a short hearing before me in October 2017 is that the parties were content to leave the resolution of that dispute to the Local Court provided that I noted, as I do, the potential liability of the estate to Claire for the claim.”

7. Relevantly, at [29]-[30] Justice Kunc noted:

“On or around 10 April 2015, Richard moved into Claire and Daniel’s home in Limekilns, Richard drove to Limekilns in his 2003 Subaru. This car has been the subject of Local Court proceedings. The parties agree, and the court finds, that at all times, the 2003 Subaru was an asset of the estate.…… Pursuant to an undertaking in the Local Court proceedings, the 2003 Subaru has been restored to the estate…

“Richard’s belongings were moved to Limekilns on 23 April 2015… Richard died unexpectedly on 29 or 30 April 2015 [paragraph 32].

8. Justice Kunc also details (at [7]-[39] of his decision), various factual findings regarding where the deceased lived, the funeral arrangements, and the issue of the deceased’s marital separation from Ms Squire. Both Ms Squire and the deceased had been previously married prior to their meeting in 2004 through an Internet dating website. In October 2005, the deceased and Ms Squire were married, and they remained together until shortly before his death in 2015. At paragraph 26 Justice Kunc notes that in early 2015, the deceased proposed moving to Bathurst with Ms Squire and she refused and shortly thereafter they separated and took some steps to affect the separation including dividing jointly held assets. On 20 March 2015, the deceased and Ms Squire sold their matrimonial property with the settlement taking place on 7 May 2015, a few weeks after Mr Squire died. Mr Squire’s share of the net proceeds of the sale ($249,779) was being held on trust pending the resolution of the Supreme Court proceedings. Justice Kunc did observe in his findings (at [104]) that Ms Squire and the deceased “were newly separated at the time of Richard’s death and that there had not been any opportunity for the question of any financial settlement between them to be discussed, let alone resolved”. He also noted, (at [110]) that given the recent separation Ms Squire had not received anything in the nature of a financial settlement arising from separation after a 10 year marriage, in relation to which Justice Kunc noted that there was nothing to suggest it was anything other than a happy marriage.

9. Justice Kunc found that for about two weeks before Mr Squire’s death he had been living with Ms Beech and her family in Limekilns. The children (Ms Beech and Paul Squire) gave evidence in the Supreme Court that there was no likelihood of reconciliation in their view, and that the deceased had intended to alter his Will to exclude Ms Squire and leave his estate equally to his children. Justice Kunc found that Ms Squire and the deceased had permanently separated in the two or three weeks before his unexpected death. This was after a marriage of some 9 to 10 years. Ms Squire’s modest financial situation and some of her financial contributions to the marriage were detailed by Justice Kunc in his decision (refer [80] – [85]) and he made further findings about her financial contribution, financial position, and need (at [110]). Ultimately the Supreme Court did not disturb the provision for Ms Squire made in the Will (refer [112], and [116]-[118]) and ordered that the summons by Ms Beech and Paul Squire be dismissed.

10. The decision of Justice Kunc has been appealed, and the appeal by the Court of Appeal is not yet determined.

11. Following the decision of the Supreme Court, the current proceedings were listed for hearing on 31 October 2018. On that date both the cross-claimant and the cross-defendant gave evidence, legal submissions were made, a timetable was provided for the filing of further written submissions, and the matter was adjourned for decision on 22 November 2018.

The evidence

12. In affidavit evidence, Ms Beech, cross-claimant, stated that the deceased was proud of his Welsh heritage, although he had made Australia his home since the 1970s. His three children from his first wife remained living in Australia, but other relatives of the deceased are resident in Wales. There is a national park in Wales, Brecon Beacons, which Ms Beech states was a place the deceased spent a lot of time camping as a child. Ms Beech states that when she was about 17 years of age, around the time she finished school, her father stated he wanted to be taken back to Wales after he died and have his ashes scattered in Brecon Beacons. On the basis of this conversation Ms Beech states “despite all the chaos which occurred after Dad’s passing, particularly concerning his body, his desire to be returned to Wales was the one thing of which I was 100% sure”. She further states, at paragraph 7 of her affidavit, that in 2001 during a trip to Wales he again said he wished for his ashes to be returned to Wales and scattered on Brecon Beacons. Ms Beech states that in 2008 her father expressed some sadness at the separation from his family in Wales for so many years.

13. After her father passed away, Bathurst Hospital put Ms Beech’s family in contact with the funeral director to make arrangements. She was advised by the funeral director:

“We have received a call from White Lady Funerals in Penrith, a woman named Corrine has asked them to send Richard’s remains to them. Unfortunately your father will have to remain in the morgue here at Bathurst until such time as you can sort out which funeral director will be used, or a magistrate will need to make a decision about what is to happen”.

14. Ms Beech states she tried to contact Ms Squire by telephone call and was unsuccessful and then again heard from the funeral director, who advised that Bathurst morgue have confirmed that the deceased remains could be provided to Ms Beech to make arrangements for the funeral. Ms Beech denies that her family refused Ms Squire permission to attend the funeral.

15. She states that after the funeral, her father was cremated. After this time there were conversations with her siblings in Australia, and her father’s family in Wales, as to return of his ashes to Wales.

16. Funeral expenses amounted to $7227.

17. In December 2015, Ms Beech and her family travelled to Wales with her father’s ashes. The deceased’s family, including Ms Beech’s family, took the ashes to Brecon Beacons and scattered his ashes by a creek there. As noted at paragraph 3 above, Ms Beech states that in the eight months between her father’s death and the return of his ashes to Wales she received no request from Ms Squire to obtain her father’s remains, nor any contact to give instructions as to what was to be done with the ashes. Under cross examination Ms Beech stated that in conversations with family members in Wales she had told those family members that the deceased had told her that he wanted to be cremated and have the ashes taken to Brecon Beacons, and after she told family members of this wish, then they agreed it would be good to do this.

18. Ms Beech was questioned about whether she had any discussions with family members about who was going to pay for the ashes to be transported to Wales, and she could not recall any such conversation. When asked whether anyone had offered to pay this expense she could not recall. She was questioned as to whether any family member had asked her if she had consulted with the executor about bringing the ashes to the United Kingdom, or to Wales, and she indicated that this had not occurred. She confirmed that no family member from the United Kingdom had travelled to Australia to attend her father’s funeral, although her brother, who resides in Australia, was present. When asked how she thought the costs of transporting the ashes to Wales would be paid she stated “I saw it as part of funeral expenses, the same as a headstone or a plaque in a lawn Cemetery”.

19. Ms Beech’s attention was drawn to the affidavit of Ms Squire, and Ms Beech agreed with Ms Squire’s evidence that Ms Beech did not consult her about taking the ashes to Wales. She further agreed that at no time did she tell Ms Squire that she intended to do this, nor did she advise Ms Squire at any time of any arrangements to transport the ashes of the deceased to Wales. Ms Beech agreed that she did not discuss the costs of transporting the deceased ashes to Wales with Ms Squire as executor of the estate.

20. In answer to a question whether Ms Beech had asked Ms Squire for funds to cover the cost of transporting the deceased ashes to Wales, before she went to Wales, Ms Beech stated “I can’t recall, it’s three and half years ago”. It was put to her that Ms Squire said that Ms Beech did not ask her, and Ms Beech could not confirm or deny this, stating she did not recall.

21. Under re-examination Ms Beech was taken to her attempts to contact Ms Squire, the executor, around the time of the funeral; and she said she tried calling several times between her father’s death and the funeral, a two week period, probably up to half a dozen phone calls. She had spoken to Ms Squire on the day she found her father deceased, but she did not recall talking to her after that day, up until the funeral.

22. She agreed that there had been a request by Ms Squire to have the deceased’s remains released to her for the purpose of the funeral, and that Ms Beech knew she would have to go to Bathurst Court to get permission to have her father’s remains instead released to her. Ultimately this was avoided because Ms Squire gave permission for this to occur, and the funeral was then held in Bathurst. The funeral was held in the crematorium and her father was cremated.

23. Ms Squire gave evidence by affidavit, and a number of documents were annexed to that affidavit including a copy of the Probate granted on 25 May 2016, a copy of the Will dated 21 March 2007 and an inventory of his property at the time of his death. It is noted that the deceased’s estate is insolvent – she refers to the judgement of Justice Kunc that the estate was insolvent as at 13 October 2017 by approximately $48,079.

24. In the affidavit she sets out that the funeral expenses, in the sum of $7227, is a liability of the estate. This is consistent with the opening made in these proceedings by the parties’ legal representatives, that the funeral expenses are not an issue in dispute for determination by the court in the current proceedings.

25. Ms Squire notes that Ms Beech and Paul Squire have appealed the Supreme Court decision to the Court of Appeal which has a hearing date on 29 November 2018.

26. Ms Squire states that the deceased never expressed to her any wish that his ashes be repatriated to Wales, even though she holidayed there with him in 2007. On quite a few occasions when they discussed the topic of disposal of their remains on their passing, she says the deceased said to her “I don’t care what you do. Keep it simple. No fuss. When I’m gone, I’m gone”. She further notes that Richard’s Will is silent on the topic of disposal of his remains, and as executrix of his will she had responsibility for disposal of his remains. She states that Ms Beech never consulted her about repatriating Richard’s ashes to Wales and never discussed with her the intention to do so, nor did she ever ask for funds to do so, or discuss with Ms Squire the cost of doing so.

27. Ms Squire states that had Ms Beech consulted her about repatriating the deceased’s ashes to Wales, she would not have authorised her doing so at the expense of the estate, which was likely to be insolvent even without such additional expense. Nor would Ms Squire have repatriated Richard’s ashes to Wales given his wishes expressed to her in 2007, and given the lack of any express wish communicated to her, or in his Will, to have his ashes repatriated to Wales.

28. The deceased’s Will, which is in evidence, does not give any direction that the deceased ashes be taken to Wales.

29. Under cross-examination, when questioned about the deceased wishes upon his death, as stated in her affidavit, Ms Squire stated that in 9 ½ years of marriage, given that the deceased had experienced two heart attacks in that period, they had talked about their arrangements after their deaths quite often. It was put to her that the conversation in her affidavit was a fabrication designed to achieve the aim, that the estate not be liable for transporting the ashes to Wales. Ms Squire responded that it was not a fabrication; this was what the deceased had said. It was put that she was prepared to be untruthful in these proceedings, if it assists the estate’s cause, and she denied this. It was put to her that around the time of Richard Squire’s death, Ms Squire had received phone calls from Ms Beech, and she agreed she had received a couple of telephone calls. She conceded that she may have missed some calls.

The parties’ submissions

30. Oral submissions were made at the close of the case. Legal authorities as to the duties of an executor, particularly in relation to a deceased’s remains, were provided to the court by the cross-defendant, Ms Squire. Counsel for the cross-claimant objected on the basis of ambush. Noting the material objected to was case law, upon which a submission was made as to legal principles which may apply, I did not find there was any ambush, or prejudice, in receiving a legal authority said to be of assistance to the issues to be determined. However, to ensure fairness and an opportunity to respond to the legal argument, the proceedings were adjourned with directions for the filing of written submissions. I will deal firstly with the oral submissions at the close of the hearing, and then with the arguments raised in the further written submissions filed.

30. In oral submissions the cross-claimant stated, that the cross-claimant should succeed because she had paid the money to transport her father’s ashes to Wales in accordance with her father’s wishes. It is further stated that in providing an agreement to release the deceased body to Ms Beech for the conduct of funeral arrangements, the executor had abandoned the right to make decisions about the remains. Any legal right reposing in the executor by dint of that office was abandoned by that action. The court was also invited, on the basis of adverse credit findings made by Justice Kunc in the Supreme Court (those findings were made in relation to Ms Squire’s evidence about whether Ms Squire was in fact separated from the deceased), to similarly find that, in the current proceedings, Ms Squire was a witness who lacked credit, and on this basis reject her evidence where it conflicted with that of Ms Beech.

31. The cross-defendant states that the executor is responsible for payment of expenses of the estate, is required to manage the financial position of the estate, and has certain obligations in relation to the deceased’s remains, including to ensure burial. For this reason, there is no dispute that the estate owes Ms Beech the amount of the funeral expenses paid, and this was accepted in the administrator’s affidavit provided in the Supreme Court proceedings. Whilst funeral expenses should be met from the estate, this does not extend to expenses incurred in a post funeral, post cremation decision to travel overseas with the deceased’s remains.

32. The cross-defendant referred to the decision of Smith v Tamworth City Council (1997) 41 NSWLR 680, a decision of Justice Young in the Equity Division of the Supreme Court of New South Wales, and also to a decision of the High Court in Union Bank of Australia v Harrison, Jones & Devlin Ltd (1910) CLR 492; [1910] HCA 44. It was submitted that those decisions indicate, amongst other matters, that an executor is responsible for burial, that the executor has a right to custody and possession of the body until it is properly buried, that cremation is nowadays equivalent to a burial. As noted above legal counsel for the cross-claimant objected to legal authorities being provided to the court, and opportunity was given by way of adjournment for written submissions.

33. The written submissions received during the adjournment period from the cross-claimant essentially challenged the jurisdiction of the Local Court to determine the issue of the legal entitlement of an executor to deal with a deceased’s remains, and further submitted that, even if there was such a legal right, when the cross-defendant/executor agreed to release to the cross-claimant the deceased’s remains from the Bathurst morgue, the executor abandoned those legal rights.

34. The cross-claimant did not refer to any authority which was inconsistent with the decision of Smith v Tamworth City Council nor refer the court to other authorities on that point. Counsel for the cross-claimant noted that whilst Smith v Tamworth City Council contains a useful recitation of common law principles they may not be turned into fixed rules. It is further stated that even if the case of Smith V Tamworth City Council correctly states the law in New South Wales, the cross-defendant had voluntarily separated from the deceased, two or three weeks before his unexpected passing, so that whilst the cross-defendant may have remained Richard’s wife as a matter of law, as a matter of fact she was no longer bound by the bonds of marriage. Therefore her claim as surviving spouse should not prevail over the claim of surviving children, and she should not be considered, as a matter of law, a surviving spouse.

35. The Statement of Cross Claim and supporting submissions do not set out the legal basis on which the estate is liable to the cross-claimant. While the pleadings refer to debt, the legal basis of the debt is not set out. The court has been provided with no articulation of the legal basis for the cross-claimant’s claim. What has been submitted is that the amount was paid, that the expense was incurred in accordance with the deceased’s wishes, and should therefore be paid by the estate as a funeral expense, but the legal basis for that contention is not set out. I note however, that the legal basis is found in the case objected to by Counsel for the cross-claimant, being the case of Smith and Tamworth City Council; and is also set out in the written submissions of the cross-defendant. The cross-defendant’s Counsel, in the written submissions in reply, argues for jurisdiction in the Local Court on the basis that the cross-claimant’s case is seeking an order in restitution.

36. For completeness it is noted that, in response to the submissions provided by the cross-claimant, the cross-defendant argues that there is no issue of an election being made by the executor in the current case (an argument raised in submissions by the cross-claimant) because the cross-defendant did not know that the cross-claimant was repatriating the deceased’s cremated ashes to Wales, nor did the cross-claimant discuss with the cross-defendant the costs of doing so. The cross-defendant did not know and did not elect to authorise the repatriation of the ashes, and certainly did not authorise the cross-claimant to do so at the expense of the deceased’s then extremely modest estate.

Issues for determination

38. The daughter, Ms Beech, seeks reimbursement by the executor, for the costs incurred in transporting her father’s ashes to Wales some months after the funeral. The estate, through the executor, has agreed to be responsible for payment of funeral expenses, and the parties agree that the issue of funeral expenses is no longer for determination on the Statement of Cross Claim. The issue for determination is the claim for reimbursement of costs incurred by Ms Beech in taking her father’s ashes to Wales.

39. In these proceedings, the quantum claimed in the cross claim was not challenged, what was challenged was the legal liability to pay. However I do note that the quantum appears to include the cost of all airfares to Wales of the cross-claimant’s immediate family members. Given that quantum was not challenged I am not required to further consider the issue of the amount claimed.

40. As to liability, the cross-claimant has the onus of proof on the balance of probabilities to establish the liability of the executor of the estate for the amount claimed.

41. As discussed above, the court has been given no real assistance by the cross-claimant as to the basis of the liability, other than it is debt owed by the cross-defendant, and that this debt is based upon the cross-claimant’s evidence as to her belief (based on conversations in 1994 and 2001) that repatriation of his ashes was her father’s wish, and the fact that expenses in so doing were incurred by Ms Beech. Given this evidence of her father’s wishes as to his remains after his death, it is the obligation of the executor to meet the expenses incurred in fulfilling that wish. It is also contended that the expenses should be considered part of the funeral expenses.

Discussion of authorities

42. On the material before me, it appears that the basis of the cross claim may be restitution. I note that the authority provided by the cross- defendant provides a basis for my conclusion. In Smith v Tamworth City Council Justice Young conducted a thorough review of the authorities as to the legal position with respect to the right burial in New South Wales. I have conducted a review of recent decisions which have approved and applied the decision Smith v Tamworth City Council (discussed below). In Smith Justice Young set out what he understood to be the legal principles, at pages 693 and 694 of his judgement, at points 1 through to 15:

“Having reviewed these authorities, what is the current legal position with respect to the right of burial in New South Wales?

It is useful to state the propositions that follow from the above analysis and from the analysis subsequently appearing in these reasons before dealing with the facts and submissions in the present case.

1.    If a person has named an executor in his or her will and that person is ready, willing and able to arrange for the burial of the deceased’s body, the person named as executor has the right to do so.

2.    Apart from appointing an executor who will have the right stated in proposition 1, and apart from any applicable statute dealing with the disposal of parts of a body, a person has no right to dictate what will happen to his or her body.

3.    A person with the privilege of choosing how to bury a body is expected to consult with other stakeholders, but is not legally bound to do so.

4.    Where no executor is named, the person with the highest right to take out administration will have the same privilege as the executor in proposition 1.

5.    The right of the surviving spouse or de facto spouse will be preferred to the right of children.

6.    Where two or more persons have an equally ranking privilege, the practicalities of burial without unreasonable delay will decide the issue.

7.    If a person dies in a situation where there is no competent person willing to bury the body, the householder where the death occurs has the responsibility for burying the body.

8.    Cremation is nowadays equivalent to burial.

9.    A person who expends funds in burying a body has a restitutionary action to recover his or her reasonable costs and expenses.

10.    A Right of Burial is not an easement, but a licence: it is irrevocable once a body has been buried in the licensed plot.

11.    The cemetery authority is able to make reasonable by-laws as to the maintenance of the appearance of the cemetery.

12.    Subject to such by-laws, the holder of the Right of Burial has the power to decide on the appearance of the grave and headstone.

13.    The reasonable cost of a reasonable headstone is recoverable from the deceased’s estate.

14.    The holder of the Right of Burial cannot use his or her right in such a way as to exclude friends and relatives of the deceased expressing their affection for the deceased in a reasonable and appropriate manner such as by placing flowers on the grave.

15.    After the death of the executor or administrator, the right to control the grave passes to the legal personal representative of the original deceased, not the legal personal representative of the holder of the Right of Burial.”

43. The case of Smith has been applied in the following cases: Escott v Brikha [2000] NSWSC 458, per Windeyer J, and Darcy v Duckett [2016] NSWSC 1756, per Campbell J. Darcy v Duckett was a case involving a dispute over who could bury the deceased who had died intestate. The dispute was between the sister of the deceased and a de facto wife with whom the deceased had four children. Aboriginal cultural issues were considered, and the interaction of those issues with the common law position, on the facts of the case, was also carefully considered. Ultimately Justice Campbell applied the decision of Smith with the effect that the claim of the de facto wife was primary.

44. The authorities have been more recently reviewed in the decision of Abraham v Magistrate Stone, Deputy State Coroner [2017] NSWSC 1684, a decision of Justice Rothman, where he approved of, and applied, the decision in Smith. The case before Justice Rothman included consideration of Maori culture and burial customs, amongst other matters. Justice Rothman observed as to the law generally (at [46] to :

The jurisdiction of the Court and the principles upon which it should exercise that jurisdiction were discussed in historical terms by Young J (as his Honour then was) in Smith v Tamworth City Council (1997) 41 NSWLR 680; [1997] NSWSC 197. His Honour traced the history of the appointment of an administrator of an estate which, generally, includes the right to determine the funeral arrangements. The Court, here, is not concerned specifically with the appointment of an administrator, but with orders that are sought relating to the funeral arrangements.

His Honour in Smith, supra, dealt at length with the historical (and international) judgment and principles, in this area, within the inherent jurisdiction of the Supreme Court. His Honour was drawn, to some extent, to the position in the United States, because, like Australia, it does not have ecclesiastical courts, and to the position in England, under both common law and ecclesiastical law. His Honour also referred to cited cases in Australia. His Honour noted, and, with respect, I agree, that the 1824 Charter of Justice invested in the Supreme Court of New South Wales all of the jurisdiction of the English ecclesiastical courts and that s 23 of the Supreme Court Act gives this Court all the power needed to administer justice in New South Wales.

After dealing with the authorities, his Honour set out a number of principles:

“Having reviewed these authorities, what is the current legal position with respect to the right of burial in New South Wales? [Justice Rothman went on to set out points 1 to 15 from the judgement of Smith, which I have set out above, and continued]…

With great respect to Young J, I adopt those principles.

In a different context, Campbell J dealt with the issues as they relate to Aboriginal culture in Australia and cited and applied the judgment of Young J to which reference has been made: Darcy v Duckett [2016] NSWSC 1756. Reference should also be made to the judgment of Nicholson J in State of South Australia v Smith (2014) 119 SASR 247; [2014] SASC 64, which refers to the inherent jurisdiction of the South Australian Supreme Court being exercised in the context of Aboriginal culture. Nevertheless, the principles summarised by Young J are applicable and were cited with approval by Nicholson J. I will apply them.

45. I therefore consider in any dispute about possession/custody of a deceased’s remains, and/or funeral arrangements, the decision of Justice Young in Smith is clear authority as to applicable legal principles. However, it is the case that the Local Court has no jurisdiction to make any orders of the nature made by the Supreme Court in exercise of its inherent jurisdiction in the authorities discussed above. The relevance of the authorities to the present matter (which is a claim for payment of money within the jurisdiction of the Local Court) is that it provides guidance as to legal principles which may be relevant, given the nature of the dispute in the current proceedings. It is clear that in the current proceedings I am not required to determine the burial rights or possession of the remains – all of those matters had already occurred prior to commencement of proceedings, such a determination is one that the Local Court has no jurisdiction to make.

46. The only issue for determination is whether the cross defendant, as executor, is liable to reimburse the cross-claimant for the costs of transporting the ashes of the deceased to Wales.

An observation about claims in restitution and the Local Court’s jurisdiction

47. I have proceeded in the present matter on the basis that I have jurisdiction to determine the cross claim, and to make the order for payment of money sought by the cross-claimant if the claim is established on the evidence. I considered it useful to determine the merits of the case given that jurisdiction to make the order sought by the cross-claimant was not contested in the hearing, and given the purposes in s 56 of the Civil Procedure Act 2005 and the history of proceedings between the parties.

48. It is noted that, in the Statement of Cross-Claim, the cause of action is said to be “debt”, but the basis for the debt is not articulated. The Local Court has jurisdiction in claims for payment of money, this is a matter without controversy, and the cross-claim appears to be so stated in its reference to debt. However, the debt will still be subject to proof, including the basis on which the debt is owed. The cross-defendant refers to restitution. I am satisfied on the authorities referred to above, that reimbursement of funeral expenses is an order for restitution. It is unclear if this is on the basis of law or equity, however it seems probable that this is on the basis of unjust enrichment on moneys had and received, a common law action in which the Local Court has jurisdiction – the basis being the receipt by the estate of a benefit (payment of the funeral expenses by another for which the estate is generally responsible), at the claimant’s expense, and in respect of which it would be unjust to allow the estate to retain the benefit. Given the findings of fact which I have made in this matter, detailed below, it is not necessary for me to finally determine this issue.

49. In general terms, restitutionary claims are to be found in law, as well as equity, and the common law action for money had and received is such an example. It is the case that the Local Court has no jurisdiction in equity (although has some jurisdiction in equitable defences). In relation to common law claims for money had and received, and restitution, the following has been observed. In the case of Equuscorp Pty Ltd v Haxton; Equuscorp Pty Ltd v Bassat; Equuscorp Pty Ltd v Cunningham's Warehouse Sales Pty Ltd (2012) 246 CLR 498; [2012] HCA 7 the High Court provided significant guidance as to restitutionary relief on a claim for money had and received. In a joint judgement, per French CJ, Crennan and Kiefel JJ, the following principles were articulated (at [26] – [30]).

50. The High Court observed that authorities indicate that restitutionary relief on a common law claim for money had and received arises from unjust enrichment of the defendant. Whilst there are strong statements by the High Court to the effect that a recognised category is required, it is also recognised that the legal concept of unjust enrichment does not exclude the emergence of novel occasions of unjust enrichment supporting claims for restitutionary relief; however it is not to be considered to found or reflect any "all-embracing theory of restitutionary rights and remedies”.

51. Some of the recognised categories which will see recovery of money from a defendant, on the basis of unjust enrichment, include where payments are made due to a mistake, or where there is a total failure of consideration, or where money is paid under an illegal contract.

Whether the cross-defendant is liable for cost of transporting ashes to Wales

52. I find on the evidence, which I have summarised above, that there was no agreement by the executor to the incurring of the expense by the estate, of taking the ashes to Wales, and the evidence indicates no agreement or authority was sought from the executor by the daughter.

53. An executor has duties which include to obtain probate of the Will, to get in the estate, preserve it from waste, pay the debts of the deceased, and distribute the residue as directed by the Will or by law: Union Bank of Australia v Harrison, Jones & Devlin Ltd (1910) 11 CLR 492; [1910] HCA 44.

54. The question is whether the responsibilities of the executor, on the evidence in the current matter, extend to paying from the estate, several months after the burial, the cost of travel by a number of family members overseas to Wales, to repatriate ashes, in the circumstances of the current case. Those circumstances include that the deceased resided with his former spouse up until 2 or 3 weeks before his death (where the marriage was said to have been happy and of some 9 or 10 years duration). The evidence of Ms Beech is that she did not consult the former wife, Ms Squire, about taking the ashes to Wales.

55. The legal principles set out above provide that, regardless who is the principal person for burial decisions, those significant in the deceased’s life should be consulted.

56. It is noted that the facts of this case included that the deceased lived for over 30 years in Australia, his adult children and their children continue to reside here, his first wife with whom he remained friendly after separation resided here, and his second wife of 9 or 10 years (the cross-defendant) continues to reside here. This is not a situation of a deceased person who dies suddenly in a country with which he has little connection.

52. The evidence of Ms Beech and Ms Squire is that Ms Beech did not seek authorisation of the executor for the estate to meet the travel expenses of the trip to Wales in December 2015. I find the expenses were costs over and above the funeral/burial expenses which had been incurred in May 2015. The funeral expenses, including cremation and associated costs, had all been incurred months before.

53. The fact that there was a dispute about which family member would receive the deceased’s body from the Bathurst morgue, and that the executor did not ultimately contest Ms Beech’s wish to control the body and the burial, does not alter the basic fact that there was no legal abandonment of the role of the executor of the estate. Once the funeral and the burial/cremation had been finalised (this occurred in May 2015, the invoice for the funeral/cremation was issued to Ms Beech on 25 May 2015 and included all the relevant charges) the right in restitution to recover those funeral/burial costs from the estate was also finalised.

54. A decision implemented months later, for a number of family members to travel to Wales, and transport the deceased’s ashes there, does not, on the evidence in the present matter, form part of the funeral and burial/cremation process. The trip to Wales was undertaken in December 2015.

55. The evidence of Ms Squire was that the deceased never said anything to her about having his ashes returned to Wales – I note that the conversations detailed by Ms Beech with her father in around 1998 and in 2001, predate his marriage to Ms Squire. While I am urged to reject Ms Squire’s evidence, given the findings as to her credit in the Supreme Court decision, I note that the Supreme Court finding went to the evidence as to marital separation and not the entirety of her evidence. I note further, that her evidence in the current proceedings was largely consistent with that of Ms Beech, and there was no basis to find, on the evidence in the current proceedings, that she lacked credibility, given the internal consistency of her account and its consistency with extrinsic evidence. I note also that there is a reasonable explanation for the difference in the evidence of Ms Beech and Ms Squire as to the reported wishes of the deceased - the belief of Ms Beech as to her father’s views was based on her recollection of words said to her by father years before, and relevantly well prior to the deceased entering a marriage with Ms Squire. Ms Beech does not give any evidence of that same view being expressed to her after her father married Ms Squire, and the plausible explanation for the difference in the evidence of Ms Beech and Ms Squire is that after his marriage and perhaps with the onset of ill health, his views changed. There is no basis, given such available plausible explanation for the difference, and given no other basis in the current proceedings to find Ms Squire lacked credibility, to reject her evidence about the deceased wishes expressed to her during the marriage, solely on the basis of credit.

56. Nor is the evidence of the daughter, as to words said to her by her father in approximately 1998, and also in 2001, compelling evidence of his wishes toward the end of his life, in 2015, as to disposition of his remains. He made a Will in 2007 which was silent on the issue.

57. The wishes of the other family members in Wales are unclear – at its highest, on the evidence of Ms Beech, several family members in Wales were supportive of the idea when Ms Beech herself told them it was what her father wanted, and some thought it was a lovely idea.

58. It follows on the findings of fact made, that restitution of payments made for funeral expenses cannot be relied upon as a basis for liability of the estate, given that, as explained above, the further travel expenses were incurred separately from the funeral and burial/cremation, months after the funeral, and were not part of the process of funeral and cremation. Accordingly, the right in restitution to be reimbursed for funeral expenses does not apply to the circumstances of the travel expenses in the current case.

59. It follows that for Ms Beech to recover the costs of traveling with her father’s ashes to Wales, she needs to establish the legal basis for the estate’s liability to her for that expense. It is not based on any agreement or contract with the estate; on the evidence there was no such agreement. Nor is it based on an action done with the authority of the estate; on the evidence the expense was incurred without any authority, indeed without the knowledge of the executor. It is not based in any claim for damages.

60. In the absence of the cross-claimant establishing any basis, at law, for which the estate is liable to Ms Beech, for what was her own decision to travel with her father’s ashes to Wales, then I am of the view that the cross-claimant has not established the liability of the estate for payment of the amount claimed. That it was Ms Beech’s own decision to take the ashes to Wales is clear from her evidence that the family in Wales approved the idea when it was put to them, by Ms Beech, that this is what her father wanted. Ms Beech proposed the idea to the family in Wales, and when Ms Beech said it was what her father wanted, then the family in Wales agreed. The agreement of the family members in Wales must be viewed in that context; this was not a situation where Ms Beech was trying to do something which members of the deceased’s family had directed her to do.

61. I also note that the executor is responsible to the estate, and the duties as executor include to make decisions as to expenditure and to avoid wastage. On the evidence before Justice Kunc it appears the estate was always modest. As the expenditure did not form part of the funeral/burial/cremation, and as it was not agreed to by, or discussed with, the executor responsible for expenditure from the estate, then the cross-claimant has not established, for the reasons detailed above, a legal basis by which the estate or the executor of the estate is liable for the expenses which the cross-claimant decided to incur in transporting her father’s ashes to Wales. Accordingly, the cross-claimant has not proved the claim on the balance of probabilities.

Orders

67. I make the following orders:

1. Verdict for the cross- defendant on the cross-claim.

2. The Statement of Claim is discontinued.

68. I will now hear from the parties on the issue of interests and costs.

Magistrate Huntsman

Downing Centre Local Court

22 November 2018

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Decision last updated: 29 March 2019