Chipizubov v Elias

HIS HONOUR: Tragically, on 3 February 2025, Leonid Chipizuboff, also known as Leon, (the deceased) died aged 52 at Narrawalle beach, unable to be revived after he had been taken from the water following distress during an afternoon swim with the defendant. [1] His body is currently held at a location in Wollongong under the custody of the Coroner at Milton.

That tragedy has been compounded by dispute between the plaintiff (Nicholas or the plaintiff), who is the deceased’s brother, and the defendant (Jessie or the defendant) who claims to have been the deceased’s de facto spouse at the time of his death regarding entitlement to custody of the deceased’s body for the purpose of taking carriage of his burial and entitlement in interment rights in respect of a burial allotment. The deceased appears to have died intestate leaving no exclusive written mandate to any party to attend to his burial.

Mercifully, a majority of families agree without fuss on burial arrangements and interment entitlements. However, sadly, in other families, such matters give rise to conflict which amplifies and requires court attention, confirming Thomas Carlyle’s comment, “Unity, agreement, is always silent or soft-voiced; it is only discord that loudly proclaims itself.” [2]

Poignant disputes such as the present one often arise in acute circumstances. They are frequently attended by strongly competing views as to the parties’ entitlements enlivened in a context of initial shock to the deceased’s sudden death and rapidly evolving stages of grief of the parties and those associated with the deceased.

In circumstances briefly recounted below, the defendant took the initiative of seeking to approach the Court urgently for burial and interment right relief, initially by referral from the Probate Registrar to myself as Duty Judge on 18 March 2025 with Mr Morahan of counsel appearing for Jessie and, on that occasion, Ms Pringle of counsel (who does not hold the substantive brief in the matter) appearing for Nicholas. There have been two further listings before me on 21 and 25 March 2025 with Mr Morahan continuing to appear for Jessie and Mr Ellison SC appearing for Nicholas.

On 18 March 2025, counsel expressed imperatives of dignity and tenets of the deceased’s Russian Orthodox faith to have his body buried as quickly as possible. Mr Morahan indicated that there was a complication to that being done during Lent, though noted that it could be effected with certain dispensations. [3] In particular, Mr Morahan indicated that Jessie had provisionally acquired rights of interment in an allotment in the Russian Orthodox section of Rookwood Cemetery. He contended that the acquisition could not be finalised as Nicholas refused to jointly sign documentation to enable the Coroner to release the deceased’s body unless he was promised certain matters in relation to a joint perpetual right of interment. [4]

It seemed to me that there was no necessary reason why any ultimate interest of the parties in rights of interment (perpetual or otherwise) had to be addressed urgently and could not be separated from matters which required expeditious attention regarding carriage of the burial and initial acquisition of rights of interment on behalf of the estate. This is particularly so, as contestable claims to ultimate interest in rights of interment are not easily able to be dealt with within a Duty List and may delay ensuring an expeditious and dignified carriage of burial of the deceased’s body.

Each of the parties sought to advance claims to burial and interment rights either exclusively or at least jointly but have been frustrated in so doing by what they perceived to be the lack of cooperation and competing claim of the other. Notwithstanding that, certain steps, including a “First Day Memorial Service” [5] church service on the evening of 4 February 2025 [6] have been undertaken ostensibly on a presumptive or purported right to do so.

On the initial referral of the matter to me as Duty Judge, Mr Morahan proposed that there be a determination of entitlement to possession of the deceased’s body for burial and a special grant of administration to the defendant for that purpose. [7] Jessie’s legal representatives had prepared a Court Book [8] extending to 3 volumes of materials over 750 pages in length. Even in this nascent stage of the proceedings, costs on the defendant’s side alone have escalated alarmingly with her solicitor estimating that she has incurred about $70,000 in fees relating to the urgent and interim relief sought by her. [9]

Fortunately, following some provisional observations by myself through the 3 listings, a solution has now been able to be reached dealing with the immediacy of questions regarding the burial and acquiring of perpetual interment rights. [10] I will address below the principles relating to interment rights.

Prior to doing so, for the benefit of practitioners and families faced with burial conflicts and, in the hope of averting or at least minimising future disputes, I will make some practical observations which hopefully will provide some guidance for future matters. The observations particularly apply to circumstances in which there is an intestacy and there is no clear mandate for any person to have carriage of a burial and the acquisition of interment rights. Nonetheless, the observations will likely have the effect of generally informing the resolution of disputes involving custody of a deceased’s body for the purposes of burial or cremation, acquisition of interment rights, the distribution of ashes or other associated issues (which I will categorise by the descriptor burial disputes) which arise in urgent circumstances.

First, frequently, issues regarding carriage of disposal of a deceased person’s body, whether by burial or cremation, are ventilated by parties and legal practitioners through proceedings for a grant of probate or administration of the deceased’s estate. However, jurisprudentially, the law governing the disposal of deceased bodies in contemporary Australian society has been said to occupy a unique space on the periphery of the law of succession, occupying a gap between the protective and probate jurisdictions where it is ancillary to both and not entirely part of either. [11] The Court has inherent jurisdiction, without a grant of probate or administration, to make orders governing disposal of a deceased’s body. [12]

Secondly, the highly sensitive and personal nature of the burial disputes jurisdiction is such that court imposed or directed solutions will or may tend to deeply disappoint one or more of the disputing parties associated with the deceased. It has been rightly said that the law governing the disposal of a dead body works best when there is a consensus or accord (at least in part) about what is to be done or at least an acquiescence on the part of those who might reasonably be thought to have a right to object [13] or have an interest in a burial dispute outcome. Ideally, discussions leading some degree of consensus between contesting parties as to certain of the orders proposed to be made will facilitate the expeditious and dignified disposal of the deceased’s remains. Further, the fact that voices have been able to be heard through discussion leading to some harmonious accord may collaterally act as a salve for some or more of the grieving disputants.

Thirdly, not all burial disputes are instigated closely following the deceased’s death. [14] However, many such disputes are brought on urgently. In the context of a claim for urgent relief in the Equity Duty List, parties and practitioners will need to be mindful that certain of the Court’s decision-making will occur in a context in which there is often little opportunity for testing of evidence by cross-examination.

Fourthly, parties and practitioners should give well-considered thought to what material is placed before the Court. Expeditious and just hearings may be hindered by parties providing the Court with voluminous material.

Fifthly, there is a practical imperative for the parties and practitioners to distinguish between what is truly urgent for the Court to decide and what may be appropriately decided at a later point of time. However, the distinction between what is truly urgent and what may be deferred for a time does not necessarily reflect the distinction between interlocutory and final relief. [15]

Sixthly, there is a certain core of non-partisan material that should be provided to the Court to facilitate timely decisions which allows a body to be disposed of in an orderly way, respecting the dignity of the deceased and those associated with the deceased. Thus, it is important, for the parties to identify at the earliest possible stage and place before the Court basic information including:

Seventhly, notwithstanding the natural desire of various family members to be involved in relation to custody of the body, carriage of burial or cremation and acquisition of rights, practically speaking, solutions proposed by parties involving joint appointments or co-responsibility for such matters are fraught with difficulty. Experience shows that it is often vain hope for the Court to expect that disputing parties dealing with such sensitive matters to be able to work co-operatively or do so without further unseemly dispute, complication and cost, which either compromises or jeopardises the dignified disposal of the deceased’s remains.

Eighthly, at least for the above reasons, the appointment of an independent interim administrator (often an experienced succession law practitioner) is usually a commendable outcome to address the immediacy of dealing with securing custody of the body and carriage of burial and funeral arrangements.

Ninthly, if an interim administrator is to be appointed, to deal with “burial issues”, that person must generally be appropriately funded from estate assets (if there be any). For that reason, the extent of the powers of administration which are granted to the interim administrator should include powers dealing not merely with the body of the deceased but also the property of the deceased.

Tenthly, whilst, as will be seen below, a right of interment is a form of personal property which will form part of a deceased’s estate, the powers given to the interim administrator can appropriately extend to acquiring rights of interment on behalf of the estate. There is generally no compelling reason why the ultimate entitlement of the parties in such rights of interment need to be finally determined in the context of an urgent Duty List.

Eleventhly, in light of the prior observation, legal practitioners and the parties should seek to identify mechanisms to address the immediacy of the dignified disposal of the deceased’s body, leaving for separate and later determination questions of ultimate entitlement to interment rights.

Lastly, parties and legal practitioners should be mindful of attempting to keep costs associated with burial disputes within reasonable bounds.

Much of the law regarding interment rights is regulated by statute, specifically under Part 4 of the Cemeteries and Crematoria Act 2013 (NSW) (CCA) and Part 3 of the Cemeteries and Crematoria Regulation 2022 (NSW) (CCR). The CCA commenced on 24 October 2014. A new interment rights system was created by Part 4, which came into force upon Part 4 commencing on 25 June 2018. [18]

The objects of the CCA are set out in s 3 as follows

Cemeteries and Crematoria NSW (CCNSW) is a body corporate that was constituted under the CCA. [19] It is otherwise known as the Cemeteries Agency [20] (Agency). All decisions relating to the functions of the Agency are made by or under the authority of the Board of CCNSW. [21] The functions of the Agency are enumerated in the CCA. [22] The functions include:

The “interment industry” is defined for the purposes of the CCA as being “cemetery operators, funeral directors, funeral funds within the meaning of the Funeral Funds Act 1979 (NSW) and any other persons, or persons of a class, prescribed by the regulations”. [23]

Significant aspects of the regulation involve:

A CCNSW Fact Sheet “A new interment rights system in NSW” [29] suggests that part of the Agency’s functions is seen as being a type of consumer protection:

The notion of the legal personal representative, family members or others associated with the deceased making arrangements in relation to rights of interment being characterised as “consumers”, at first blush, seems a little incongruous. Nonetheless, such terminology is at least in some respects consistent with legislative reforms introduced in late 2013 with the introduction of the CCA.

Some semblance of a broader need for regulation in the industry and protection of those who need to arrange burial of loved ones and interment rights is given in the opening paragraphs of the Second Reading Speech of the Honourable Katrina Hodgkinson (Minister for Primary Industries, and Minister for Small Business). [30]

A clear purpose of the CCA was to address issues consequent upon fragmented management of the interment industry. Cemeteries and crematoria were being independently managed by various different state agencies, local government, public and religious trusts, community and other organisations, and private companies. Management of some public cemeteries was further divided based on denominational portions. [31] It was said that: [32]

The Minister stated: [33]

In relation to codes of practice, the Minister stated: [34]

The Minister noted that, “Unsurprisingly, research shows that people wish to bury family and friends within a reasonable distance from their homes to enable regular visits.” [35]

A significant issue driving the reforms was expressed concern that within a period of three or four decades, the State of New South Wales would face the very real prospect of having completely exhausted existing burial space. [36]

Cognisant of that, the Minister emphasised that an important aspect of the reforms allowed for renewable interment rights to be offered on an optional basis across New South Wales in a context where the then current position was that cemetery renewal process was only available to Crown cemetery operators. [37]

In recent years, an Interment Industry Scheme (Scheme) has been created pursuant to the 2022 CCR, setting up a licensing framework for cemetery and crematorium operators. Details about the Scheme are available from the CCNSW website and Fact Sheet “Interment Industry Scheme – licensing and categorisation” issued by CCNSW. [38] There are 4 categories of licence for cemetery operators (essentially based on volumes of interments conducted annually). The Agency determines the category of conditions applicable to the licence. The CCR provides that the Agency may impose conditions in relation to various matters. [39] Currently there are 7 sets of licence conditions [40] (Conditions): A. Consumer Contracts; B. Cemetery Maintenance; C. Pricing Transparency; D. Customer Service; E. Religious Cultural and Spiritual Principles; F. Reporting Obligations; and G. Prohibition of Interment Services.

The Scheme commenced on 14 October 2022 to be implemented progressively to give operators time to transition into the Scheme. [41] It was envisaged that by October 2024, all operators will be required to have a licence and be compliant with all Conditions applicable to their category of licence. [42] However, there were some delays and the start date for the Consumer Contract, Pricing Transparency and Cemetery Maintenance Conditions was amended from 1 July 2024 to 1 October 2024 to allow more time for industry adjustment. [43] As at 1 October 2024, the Scheme became fully operational. [44]

There are three aspects to the Consumer Contracts licence Conditions. [45] First, the operator must comply with pre-contract requirements and ensure Consumer Contracts are transparent and clear. Secondly, the operator must not enter a Consumer Contract unless the Consumer Contract includes key details relating to the interment right. Thirdly, the operator must address certain matters in all Consumer Contracts.

The key detail in respect to the second aspect are: (a) an agreed statement regarding certain matters; (b) details regarding the interment right; (c) provision of applicable fees and charges; and (d) payment terms. [46]

The Condition [47] regarding the interment right does not apply to Cremation Only Consumer Contracts. [48]

The Agreement Statement [49] must include:

The details of Consumer Contracts have connection with the content of an interment right and I will address this below.

In October 2024, CCNSW issued a Discussion Paper regarding review of the CCA. The Discussion Paper principally addresses two topics. First, strengthening consumer protections, and secondly clarifying and simplifying interment rights (I will deal with this second aspect below).

The Discussion Paper anticipated that “After a period of targeted consultation and government consideration, it is anticipated that an amending Act to give effect to the required changes will be introduced early in 2025.” [50]

By reference to the NSW parliament website, no relevant bill has been introduced so far this year. Nor seemingly have any final reports or recommendations been published by Cemeteries and Crematoria NSW.

Leaving aside certain statutory exceptions, and noting that the statutory reach is not absolute, [51] broadly speaking, the position regarding interment rights is as follows.

The "interment" of human remains means (a) the placement of human remains in a mausoleum, vault, columbarium or other structure designed for the placement of such remains, or (b) the burial in the earth of human remains (directly in the earth or in a container). [52]

An "interment right" is an interment right granted under Part 4 of the CCA. [53] An "interment site" is, under the CCA, a place in a cemetery for the interment of human remains. [54]

There are various aspects to interment rights which are prescribed by reference to obligations of a cemetery operator and matters which the operator must permit, namely, the operator must: [55]

The statutory regime distinguishes between interments right by duration of the right.

A “perpetual interment right” is a right entitling the grantee(s) the exclusive right of interment in a specified interment site in perpetuity. [56] There is provision for a cemetery operator to revoke a perpetual interment right [57] and further provisions which address compensation in respect of such a revocation. [58]

A “renewable interment right” is a right entitling the grantee(s) the exclusive right of interment in a specified interment site commencing on the day on which the interment right is granted and ending on the day the interment right expires under s 54 of the CCA (described as the "statutory renewal period" [59] ).

There are two types of “renewable interment right”, being (a) for the interment of human remains of the person or persons to whom the right relates after they have been cremated (cremated remains) for an initial term of up to 99 years commencing on the day it is granted, and (b) for the interment of human remains (other than cremated remains) of the person or persons to whom the right relates for an initial term of 25 years commencing on the day it is granted. [60]

There are specific provisions attending application for a renewable interment right. [61]

A renewable interment right must not be granted in a portion of a cemetery consecrated for use by a religious or cultural group that requires perpetual interment. [62]

Interment rights may be acquired and granted in a number of ways. Nonexclusively, I mention four means of acquisition and grant.

First, and most frequently, interment rights may be acquired through contracting with a cemetery operator.

Secondly, interment rights may be acquired through transfer either inter vivos or pursuant to disposition under a Will or on intestacy.

Thirdly, rights might arise in some other way including under the general law. For example, rights might be acquired by estoppel: Vosnakis v Arfaras [2015] NSWSC 625; Arfaras v Vosnakis [2016] NSWCA 65; (2016) 14 ASTLR 397; (2016) 18 BPR 35,819.

Fourthly, it is conceptually possible that, in family provision proceedings under Chapter 3 of the Succession Act 2006 (NSW) (Succession Act), a Court might make provision for an applicant to receive interment rights held by a deceased’s estate. Interment rights are a form of personal property. [63] It might well be rare (and I know of no specific case in which it has been expressly done) that the Court would specifically order by way of provision that an applicant receive interment rights. However, if the Court made an order for an applicant to receive the residue of the estate and interment rights were included within the residue of the estate, then the applicant would receive those rights.

Interment rights may be granted by a cemetery operator, with the application for such rights to be in an approved form accompanied by an appropriate fee. [64] Since 1 October 2024, the provisions regarding the rights are essentially formalised by means of contract between a cemetery operator and a proposed holder. Essentially, existing rights prior to the commencement of Part 4 of the CCA are unaffected and such pre-existing burial licence or other entitlement is essentially taken to be either a perpetual interment right or renewable interment right by reference to the duration of such right. [65] The Agency may impose conditions in relation to Consumer Contracts, [66] and as noted above has done so.

Specifically, now, a cemetery operator must only grant an interment right pursuant to a Consumer Contract. [67] The operator must comply with certain precontract requirements and “ensure that Consumer Contracts are transparent, clear and expressed in reasonably plain language likely to be understood by the average Customer.” [68]

The Consumer Contract must contain the following details: [69]

CCNSW has produced a “Model contract for sale of a perpetual interment right for category 1 and 2 operators” (Perpetual Model Contract), along with “Model contract for sale of a renewable interment right for category 1 and 2 operators” (Renewable Model Contract). [70] Further, it has published a guide to using the Perpetual Model Contract (as at 1 July 2024), which guide describes the contact as a “model consumer contract”. [71]

The content of an interment right granted by a cemetery operator is regulated as follows: [72]

The CCR contain specific matters bearing upon the obligation of cemetery operators and terms affecting renewable interment rights. [73]

Reform regarding clarifying and simplifying interment rights has been foreshadowed in the Discussion Paper. [74] The Discussion Paper noted that the current statutory description of an “interment right” focuses upon what operators must permit [75] but does not describe the rights that a right holder has upon grant of an interment right nor expressly set out the responsibilities of an operator in relation to that right in its holder. [76]

The amendments to the CCA proposed by CCNSW (which, as noted above, have not yet been the subject of draft legislation) envisage amendments clearly stating the following: [77]

Each of CCNSW’s Perpetual Model Contract and Renewable Model Contract distinguishes between “at-need” purchases of interment rights and “pre-need” purchases (i.e. for rights to be used in the future but purchased prior to the death of the relevant deceased person).

CCNSW’s Perpetual Model Contract provides for general details regarding interment contracts and further specific details in relation to perpetual interment rights, [78] including relevantly, in respect of sole and joint holding and transfer, the following: [79]

Cremated ashes may be buried. However, they may also be kept (often in a urn) or scattered. No interment right is required for the scattering of cremated remains in a cemetery [80] nor, generally speaking, elsewhere.

A cemetery operator may grant an interment right in respect of an interment site in a cemetery to one person or to 2 or more persons as joint holders. [81]

It is evident that each of CCNSW’s Perpetual Model Contract and Renewable Model Contract (and further from the terms of the particular contract issued by Metropolitan Memorial Parks (MMP) tendered on the hearing), that the reference to a holding of joint interment rights is specifically a reference to what lawyers describe as being joint tenancy holding rather than tenancy in common.

An interment right may be transferred. Thus a cemetery operator may, on application, transfer an interment right from one person or 2 or more persons as joint holders to one person or 2 or more other persons as joint holders. However, the application may be made only by the holder of the interment right concerned or, if the interment right is held by joint holders, by all the joint holders. [82]

The application for the transfer of an interment right must be in the form prescribed by the regulations or approved by the Cemeteries Agency and be accompanied by the appropriate fee. [83]

On the death of a joint interment right holder, the interment right passes to the surviving joint holder(s). [84]

A sole interment right holder may bequeath the right as if it were the holder’s personal estate. [85] In such case, the executor or administrator of the deceased holder’s estate must give the relevant cemetery operator written notice of the death of the holder within 12 months after the executor or administrator becomes aware of the death. [86] The beneficiary does not become the holder of the right until a prescribed application is made and fee paid and the cemetery operator’s register is amended to record the new holder. [87]

In the case of intestacy, the interment right is to be dealt with as if it were personal property forming part of the deceased’s intestate estate. [88] Similarly to interment rights gifted by Will, application and registration requirements must be complied with to give legal effect to the holding. [89]

There are provisions which enable the cemetery operator to determine the holder of interment rights in the event of dispute. [90] These provisions do not oust or exclude the Court’s jurisdiction to deal with disputes.

What follows is a very basic outline of the deceased’s family, and the respective contentions of the parties as to their entitlement to custody of the deceased’s body and ultimately to inheritance of his estate including rights of interment. It is drawn from the Court Book and exhibits before the Court in a context in which no formal process of taking objections to evidence has occurred and no formal testing of the material, at least in the form of cross-examination, has been undertaken.

The deceased and Nicholas are the only two children of the late Nicholas Chipis who died on 25 June 2023. [91] There are slight variations in spelling of each of the surnames of the deceased, the plaintiff and their father, the reason for which is needless to explore. The deceased’s mother Lubov died in November 2012. Nicholas is married to Anna. They have a son named Roman. [92]

There is some indication that the deceased’s parents were born in Harbin, Northern China. [93] It is not necessary to make any particular finding regarding that. For all intents and purposes, the family is regarded as being of Russian heritage. Relevantly, the deceased held a Russian Orthodox faith. Jessie is a Maronite Catholic [94] of Lebanese heritage. Jessie has a number of siblings including Rosemary.

Jessie indicates that the deceased’s faith was enlivened or reinvigorated following his mother’s death in 2012. [95]

The deceased’s parents lived at a property in Telopea. The deceased also acquired a property at Narrawalle, just north of Mollymook on the south coast approximately 220 km from Telopea.

Consequent upon the deceased’s death, on 13 February 2025, Nicholas commenced these proceedings seeking letters of administration of the deceased’s estate based on intestacy.

On 12 March 2025, Jessie filed a defence disputing Nicholas’s claim to administration and cross-claimed for letters of administration on the basis that she was the deceased’s de facto spouse on the date of his death and thus claims to be entitled to administration in priority to the claim of Nicholas. Nicholas filed a defence disputing that cross-claim on 19 March 2025.

Jessie’s cross-claim, in addition to addressing entitlement to administration, seeks an order that she is entitled to take possession of the body of the deceased and bury him at Rookwood Cemetery, Sydney. [96] To the extent necessary, she sought a special and interim grant of administration for the purpose of giving effect to that relief. [97]

Jessie’s claim to administration is based on an alleged 8-9 year relationship with the deceased. In or about January/March 2016 she says she met the deceased at a café in Parramatta. On 23 April 2016, Jessie says she had a first date and commenced a boyfriend-girlfriend relationship with the deceased. In late January 2017, she says that the deceased stayed with her at her parents’ home and so commenced a de facto relationship.

Nicholas disputes the relationship, asserting that, in any event, the relationship came to an end prior to the deceased’s death. He asserts that the deceased lived with his parents at a home in Telopea his entire life until their respective passing. [98] Specifically, he states that, in 2018, the deceased came to his home with Jessie and introduced her as his “girlfriend”. [99] He asserts that in or around 2020, he later found out through relatives that they had broken up, understanding the breakup took place pre COVID. [100] Anna claims that the deceased dated Jessie from around 2019 until 2021 when they broke up “because they had different religious beliefs and culture”. [101] Jessie, on the other hand, claims that the deceased was either estranged [102] from Nicholas or did not get along with Nicholas.

Nicholas claims to be entitled to the whole of the deceased’s estate on intestacy by reason of s 129(1) of the Succession Act. It is uncontentious that the deceased’s parents predeceased him, that he was not formally married, that he died without issue, and that he had no other “brothers and sisters” as defined for the intestacy provisions of the Succession Act. [103] Accordingly, subject to the issue of whether Jessie is a “spouse” for the purposes of the intestacy provisions of the Succession Act, Nicholas would be solely entitled to the deceased’s estate on intestacy.

Jessie on the other hand claims to be a spouse for the purposes of the intestacy provisions of the Succession Act and, if she is successful in establishing that she is the deceased’s “spouse”, she is entitled to the whole of the deceased’s estate on intestacy. [104] By combination of a number of statutory provisions, Jessie would relevantly be found to be the deceased’s “spouse” if she had been in a de facto relationship with the deceased that had been in existence for a continuous period of two years as at the date of the deceased’s death. [105]

A person is in a “de facto relationship” with another person if (a) they have a relationship as a couple living together, and (b) they are not married to one another or related by family. [106] In determining whether two persons “have a relationship as a couple”, all of the circumstances of the relationship are to be taken into account, including any of 9 specified matters (including duration of the relationship, the nature and extent of their common residence, and the reputation and public aspects of the relationship) that are relevant in any particular case, albeit that no particular finding in relation to any of those indicia is necessary in determining whether the persons have a relationship as a couple. [107]

There is lack of clarity at this stage regarding precisely the property the deceased owned. Nonetheless, it appears to be common ground that the deceased owned: [108]

The Narrawallee property is subject to a mortgage of $400,000. [109]

The referral of the matter to me as Duty Judge arose in the context that I have described above.

There appeared to be an expectation of the parties through their legal representatives, both at the initial listing and second listing, that the question of the so-called right to possession of the body and carriage of the burial would be determined, if not exclusively, at least principally by reference to the right to administration of the deceased’s estate. The claim to these “rights” appeared to be premised on whether there was a prima facie or stronger case that Jessie was at the date of the deceased’s death properly described as being the “spouse” of the deceased.

Whilst reference to the statutory order for the distribution of property on an intestacy is one of a number of matters which may inform or guide decisions regarding the disposal of the deceased’s remains and addressing interment rights, it is by no means necessarily a decisive consideration for reasons explained by Lindsay J in Weidig [110] and myself in Dayman. [111]

It became evident that, at least within Jessie’s camp, a significant amount of work over the fortnight prior to the Court being approached had been spent in marshalling evidence to support Jessie’s contention that she was the deceased’s “spouse” for intestacy purposes. Jessie and her legal representatives had marshalled affidavits from 11 deponents including herself, her father, her sister, her solicitor and 7 other witnesses.

Different evidentiary and legal considerations apply to the questions regarding who is to be permitted to have custody and carriage of burial arrangements and who is to have rights of interment.

In order to clarify what might be said to be really in dispute, I sought to elicit from the parties matters about which there was no apparent dispute or at least some form of common ground and to record those matters.

Next, to facilitate the expeditious determination of immediate issues regarding the carriage of burial arrangements and the initial acquiring of rights of interment (preliminary matters), I proposed orders with a view to dealing with these preliminary matters first, and deferring the question of ultimate entitlement of the parties to interment rights to be dealt with at a later date.

Further, in order to facilitate the just and cost-effective resolution of those preliminary matters, I made directions to reduce the volume of material to be adduced in any contested application on those issues by focusing the parties’ attention on criteria or matters likely to assist the Court in determining those preliminary matters.

I made the following orders:

On 21 March 2025, the parties appeared again before me. Commendably, the parties had been able to prepare a compressed Court Book as I had envisaged with a focus on specific criteria that would facilitate the determination of the preliminary matters. In addition, Mr Ellison SC had available and ultimately handed up without any objection material from MMP setting out details in relation to interment rights. It was marked for identification, and subsequently tendered (on 25 March 2025) and marked as exhibit JP1. Rookwood Cemetery is under the auspices of MMP. I will set out below the relevant provisions of the documentation.

I was informed by Mr Morahan that the parties had agreed upon a number of matters including the place of burial (being Rookwood Cemetery, Russian Orthodox section), the plot or allotment number, a funeral director (specialising in Russian Orthodox burials) and a service according to the Russian Orthodox faith. [112]

Mr Morahan indicated that what was an issue was “joint ownership of the plot”. [113] I was informed that Nicholas had on 19 March 2025 made an open offer in the following terms:

Mr Morahan made a number of observations in relation to the offer. In particular, he contended that it was uncertain in relation to the meaning of being “unsuccessful” in the litigation. [114]

Mr Ellison SC indicated that Nicholas was content to come to some form of initial arrangement whereby the right of interment was jointly held but only to abide in an ultimate decision of the Court regarding administration of the estate. He submitted that the right of interment is the right of the person to administer the estate, [115] and that a “joint entitlement preserves the status quo”. [116]

I doubted those propositions were necessarily appropriate or at least definitive guides for resolving the preliminary matters. Mr Morahan disputed the sensibility of a form of joint holding dependent upon the outcome of who was entitled to administer the estate, submitting that it would be too uncertain.

In circumstances in which the deceased died intestate, the prima facie position is that existing rights of interment held by the deceased are part of the deceased’s personal property which will devolve upon intestacy: s 50 CCA. Thus, the entitlement to any such rights of interment would be by reference to the persons entitled on intestacy as distinct from the administrator of the estate. One difficulty with the first submission of Mr Ellison SC is that, on one view, it would be inconsistent with s 50 of the CCA and contrary to the expectations of the parties, if the Court ultimately were to grant administration of the deceased’s estate to an independent person as distinct from one of the parties.

I provisionally indicated that I thought the appropriate means of ensuring an orderly and dignified burial process for the deceased and justly balancing the interests of the parties was for the Court to appoint an independent administrator who would arrange for the burial of the deceased, and to acquire and hold the right of interment, with the question of the ultimate entitlement in such rights of interment to be determined at a later point of time. [117]

Mr Morahan sought to dissuade me from the notion that an independent person should be appointed to have carriage of the burial. He submitted that the contention or issue between the parties was not necessarily characterised as “conflict”, but rather, from Jessie’s point of view, a matter of “suitability”, asserting that Nicholas was unsuitable to have carriage of the burial by reference to what is said to be “his past behaviours, and his attitude towards the deceased, and his enunciated statements and things he has done”.

He submitted that Jessie should be given the right of interment, seemingly on the premise that “she was the recipient of statements of the deceased about what he wanted” and, secondarily (although he accepted this was a minor point), that at the time of the deceased’s death, they were swimming together. [118]

Upon further questioning of both counsel, the premise that the issues that divided the parties was not one of “conflict” but rather “suitability” of Nicholas to be involved in or have carriage of the burial process was not made out. Rather, Jessie’s claim to be the deceased’s “spouse” remained contested on the basis that there was challenge to whether a de facto relationship subsisted for 2 years prior to the deceased’s death and also as to whether she should have carriage of the burial. [119]

I considered the further contentions. However, bearing in mind the imperative to have the deceased’s body buried in a dignified manner, and having regard to the fact that the conflict between the parties strongly suggested both that neither party should have the exclusive right and that they should not jointly share the right, I was strengthened to the view that I should appoint an independent administrator to address the preliminary matters and certain aspects of property recovery and administration, whilst leaving any claim over the ultimate entitlement to interment rights to be litigated at a later point. [120] Counsel were eventually amenable in principle to that proposal and I requested that they confer to agree on an independent administrator and prepare proposed orders.

I made the following orders:

By the morning of 25 March 2025, Mr Elias (Jessie’s solicitor) informed my Associate by email that the parties were still conferring, apologising for the delay, but anticipating providing proposed orders by 11 AM. Shortly prior to 12:30 PM, Mr Elias sent a further email to my Associate indicating that unfortunately the parties have been unable to come to an agreement. He attached Jessie’s proposed orders, noting they involve prioritising the urgent funeral burial of the deceased and the right of interment, whilst allowing the parties more time to continue to confer in relation to further limited powers of the independent interim administrator.

By the listing of the matter at 2 PM, Mr Ellison SC on the part of Nicholas provided an alternate set of proposed orders.

Counsel informed me that the parties had agreed on who is to be appointed as interim administrator and seemingly agreed on the granting of limited powers to retrieve the deceased’s body and carry out the interment in the Russian Orthodox section of Rookwood Cemetery in accordance with the Russian Orthodox faith, but that the parties were still negotiating on the further powers of the administrator as to the broader estate. [121]

I indicated I was not prepared to make orders granting the interim administrator limited powers only in relation to the burial of the deceased’s body and acquisition of rights of interment without the administrator being appropriately funded to do so. [122] Following that, there was discussion as between myself and counsel regarding certain aspects of the envisaged powers, dealing not merely with burial of the deceased’s body but also in respect of securing assets of the deceased’s estate and other specific property and focused interim administration tasks.

Consequent upon that, I referred the matter to myself in chambers to consider the form of appropriate orders.

The matter, as I indicated at the outset, was progressed on the basis that the parties were desirous of acquiring perpetual interment rights. I address the terms of the MMP documentation below. Leaving aside the distinctions, I note below regarding “pre-need” and “at-need” perpetual interment right terms and conditions. It is evident that MMP permits a maximum of two burial interments and four ash interments in Rookwood Cemetery unless there is a site restriction. [123] Further, there is provision for transfer of rights from a sole interment right holder and also consequent upon the death of a joint interment right holder.

On 26 March 2025, my Associate at my request emailed the legal representatives for the parties with a draft of proposed orders and notations which I was prepared to make, and requesting the practitioners and parties to consider the proposed orders and to indicate whether they consented or to provide any proposed agreed amendments. The email indicated that if there was any dispute regarding the orders I would arrange to list the matter to address the orders further in open court.

On 27 March 2025, Mr Elias confirmed that the parties were in agreement with my proposed orders and I made the orders as set out below.

The MMP documentation (exhibit JP1) comprised two documents being: (a) Pre-Need Perpetual Interment Right Terms and Conditions; and (b) Rookwood General Cemetery Application to Update or Transfer a Perpetual Interment Right. The documentation closely but not precisely reflects the terms of the Perpetual Model Contract.

Earlier, I referred to the difference between “at-need” and “pre-need” purchases of interment rights. The first MMP document is a form of Pre-Need Perpetual Interment Right Terms and Conditions. It is not clear to me that that is the relevant document to use in this particular case which is evidently at the “at-need” stage. Nonetheless, there is no particular suggestion that there is a material difference between the “pre-need” provisions relating to perpetual interment rights offered by MMP and its “at-need” provisions.

The relevant MMP terms and conditions are as follows:

The transfer provisions are as follows: [124]

The MMP provisions make it clear that a perpetual interment right does not include any rights or title in the land of the burial allotment. Clearly the rules of intestacy provide for interment rights, which will devolve as if they were personal property forming part of the deceased’s estate. [125] Those rights, if held by an interim administrator, may be transferred to the person or persons ultimately entitled to the deceased’s intestate estate, subject to any other legitimate legally determined claim to such rights.

The parties have already incurred significant costs in the dispute. By the time of the first mention, Jessie’s solicitor estimated that she has incurred about $70,000 in fees relating to the urgent and interim relief sought. [126] It is likely that those costs have increased to some degree by reason of the further listings. It is further likely that Nicholas has incurred costs of a similar amount.

Self-evidently, a degree of the costs incurred has been referable to establishing, at least on Jessie’s case, evidentiary material that she is the “spouse” of the deceased and, in the case of Nicholas, material disputing that. That material, and the costs associated with marshalling it, are not wasted costs. However, it is a matter for sober reflection that 6 weeks after the proceedings were commenced and barely 2 weeks after Jessie’s cross-claim was filed, costs likely in the order of about $150,000 have been incurred to get the parties to a point at which there is an ordered regime for the deceased’s body to be buried and rights of interment acquired with ultimate entitlement in such rights to be later determined.

The orders of the Court which I made on 27 March 2025 are as follows: