Vosnakis v Arfaras [2015] NSWSC 625

Vosnakis v Arfaras [2015] NSWSC 625

The burial of Ms Vosnakis did not automatically novate the burial licence to Mr Vosnakis or give him the second right of nomination. No binding contract arose because the conversations did not amount to mutual contractual promises and the parties did not objectively intend to create legal relations in the circumstances of arranging the funeral immediately after the death. However, Ms Arfaras induced Mr Vosnakis to exercise his right of burial by burying his wife in the plot on the assumption that Ms Arfaras would transfer the burial licence so that he could later be buried with his wife. Having exhausted that right in reliance on the induced assumption, and given that exhumation was not a...

Jurisdiction
Australia
Judgment Date
26 May 2015
Procedural Posture
Equity Division Proceedings Concerning Transfer of a Burial Licence and Related Contract and Estoppel Claims / Principal Judgment After Hearing; Parties Invited to Bring in Short Minutes of Order
Outcome
Contract claim rejected, automatic entitlement claim rejected, estoppel claim upheld; parties invited to bring in short minutes to implement transfer of the burial licence and costs.
Legal Topics
['burial Licence' 'exclusive Right of Burial' 'interment Rights' 'intention to Create Legal Relations' 'consideration' 'equitable Estoppel' 'specific Performance' 'exhumation']
['health Law' 'contracts' 'equity' 'estoppel'] ['burial Licence' 'exclusive Right of Burial' 'interment Rights' 'intention to Create Legal Relations' 'consideration' 'equitable Estoppel' 'specific Performance' 'exhumation']

Case Brief

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Procedural Posture

Equity Division Proceedings Concerning Transfer of a Burial Licence and Related Contract and Estoppel Claims / Principal Judgment After Hearing; Parties Invited to Bring in Short Minutes of Order

Legal Issues

  1. 1 ['Whether the burial of Ms Helen Vosnakis in the burial plot had the direct legal effect that Mr Joseph Vosnakis became entitled to the burial licence held by Ms Aristea Arfaras.' 'Whether the arrangement between Mr Vosnakis and Ms Arfaras constituted a legally binding and enforceable contract requiring transfer of the burial licence.' 'Whether Ms Arfaras was estopped from refusing to transfer the burial licence after inducing Mr Vosnakis to bury his wife in the burial plot on the assumption that he could later be buried with her.' 'Whether ss 23C and 54A of the Conveyancing Act 1919 (NSW) prevented enforcement of the alleged agreement.' 'What relief should be ordered to implement any equity arising from the estoppel.']

Ratio Decidendi

The burial of Ms Vosnakis did not automatically novate the burial licence to Mr Vosnakis or give him the second right of nomination. No binding contract arose because the conversations did not amount to mutual contractual promises and the parties did not objectively intend to create legal relations in the circumstances of arranging the funeral immediately after the death. However, Ms Arfaras induced Mr Vosnakis to exercise his right of burial by burying his wife in the plot on the assumption that Ms Arfaras would transfer the burial licence so that he could later be buried with his wife. Having exhausted that right in reliance on the induced assumption, and given that exhumation was not a...

Court Disposition

Contract claim rejected, automatic entitlement claim rejected, estoppel claim upheld; parties invited to bring in short minutes to implement transfer of the burial licence and costs.

Orders

  • ['The parties are invited to bring in short minutes of order to implement the reasons.' 'The transfer of the burial licence from Ms Arfaras to Mr Vosnakis is to be undertaken in accordance with the applicable legislation.' 'If Ms Arfaras does not cooperate in implementing the transfer, consequential orders may be...