• 05 Apr 2016

Losing the Plot - Decision Alert: NSW Court of Appeal

APRIL 2016 – The NSW Court of Appeal has handed down its decision in Arfaras v Vosnakis [2016] NSWCA 65 concerning the enforceability of a verbal promise concerning the right to be buried in a particular plot. 

Following the burial of Mrs Vosnakis in 2012, a single spot in the dual-plot remained. Understandably, Mr Vosnakis wanted the space next to his late wife as his final resting place and requested that right from the plot’s owner. Despite verbal promises that he would receive it, the owner of the plot later reneged on her promise to transfer the plot to him. 

The Law recognises that binding contracts can be formed verbally as well as in writing, in particular circumstances. Like all contracts, it requires proof of an offer, acceptance, consideration by both parties, certainty of terms and an intention that the parties be bound by their promises. In summary form, the Court phrased their inquiry into this matter as looking for an “exchange of promises” between Mr Vosnakis and the plot owner. 

Unfortunately for Mr Vosnakis, the Court of Appeal held that there was no contract between Mr Vosnakis and the owner of the plot. Citing basic contractual principles established over centuries, the Court held that the fundamental elements of an enforceable contract (in this case, consideration and intention) were not established on the facts.  The Court held that, at best, all that Mr Vosnakis received was “a succession of gifts that [the owner of the burial plot] was willing to bestow”.  This left Mr Vosnakis to rely on principles of equity in order to obtain the right to the plot. 

The case is a colourful reminder to those relying on verbal promises. In a commercial environment, often verbal arrangements are used as a quick and informal tool between savvy business people. This Case reminds us that a contract is a legal concept and without the essential ingredients, a Court will not recognise it, leaving a disappointed plaintiff to search for other remedies which are often unclear, risky and expensive to pursue. 

The full judgment is available at: https://www.caselaw.nsw.gov.au/decision/57031be8e4b05f2c4f04c864