The New South Wales Supreme Court in a recent appeal was asked to consider whether a promise to transfer a burial licence gave rise to a binding contract of law and, in particular, whether consideration had been given to form a contract. The Court was asked to consider an alternate argument – whether the doctrine of promissory estoppel applies.

What Happened?

The facts in the matter of Arfaras v Vosnakis [2016] NSWCA 65 (07 April 2016) are as sad as they are strangely romantic. In essence, the defendant promised the plaintiff to transfer a burial plot so he would be buried next to his late wife. When he later refused to transfer, the applicant argued that the parties had formed a binding contract. Or, alternatively, the defendant was now estopped from making good his promise in circumstances where the applicant had relied on the promise.

The primary judge found that although the conversations in July 2012 did not give rise to a legally binding contract, the respondent was nonetheless estopped from denying the applicant the right to be buried next to his wife (i.e. perpetual internment). As a result, the respondent held the perpetual internment right to the plot as trustee for the applicant and should transfer accordingly.

What is Equitable Estoppel?

In contract law, the doctrine of equitable estoppel provides that if a party changes his or her position, and reneges on a prior promise, then that party can enforce the promise even though the essential elements of a contract are missing. The courts will only apply this doctrine if certain elements are present including:

  • The plaintiff must rely on the defendant’s promise to its detriment; and
  • It would be inequitable or unfair if the promisor were not required to make good on their promise.

Here, the Court found that while consideration (or detriment suffered if the promise was not fulfilled) was unusual, it still existed. The reliance on the promise in fulfilling his wish to be buried next to his wife was enough for the doctrine to apply.

As an aside, and in response to an interesting argument raised, the Court held that if the applicant desired to be buried next to his wife, it shouldn’t consider imposing the legal possibility of exhumation and reburial.

Key Takeaways

Simply put, the moral of this story is that just because parties do not enter into a formal contract, or provide consideration in the usual or monetary sense doesn’t mean a party cannot be deemed liable, and required to comply with their promises. That, of course, and you shouldn’t mess with a man who wants to spend his final resting place next to his beloved.

Questions? Get in touch with our contract lawyers on 1300 544 755.

COVID-19 Business Survey
LegalVision is conducting a survey on the impact of COVID-19 for businesses across Australia. The survey takes 2 minutes to complete and all responses are anonymous. We would appreciate your input. Take the survey now.

About LegalVision: LegalVision is a tech-driven, full-service commercial law firm that uses technology to deliver a faster, better quality and more cost-effective client experience.

The majority of our clients are LVConnect members. By becoming a member, you can stay ahead of legal issues while staying on top of costs. For just $199 per month, membership unlocks unlimited lawyer consultations, faster turnaround times, free legal templates and members-only discounts.

Learn more about LVConnect

Emma Jervis
Need Legal Help? Get a Free Fixed-Fee Quote

If you would like to receive a free fixed-fee quote or get in touch with our team, fill out the form below.

  • By submitting this form, you agree to receive emails from LegalVision and can unsubscribe at any time. See our full Privacy Policy.
  • This field is for validation purposes and should be left unchanged.
Our Awards
  • 2019 Top 25 Startups - LinkedIn 2019 Top 25 Startups - LinkedIn
  • 2019 NewLaw Firm of the Year - Australian Law Awards 2019 NewLaw Firm of the Year - Australian Law Awards
  • 2020 Fastest Growing Law Firm - Financial Times APAC 500 2020 Fastest Growing Law Firm - Financial Times APAC 500
  • 2020 AFR Fast 100 List - Australian Financial Review 2020 AFR Fast 100 List - Australian Financial Review
  • 2020 Law Firm of the Year Finalist - Australasian Law Awards 2020 Law Firm of the Year Finalist - Australasian Law Awards
  • Most Innovative Law Firm - 2019 Australasian Lawyer 2019 Most Innovative Firm - Australasian Lawyer
Privacy Policy Snapshot

We collect and store information about you. Let us explain why we do this.

What information do you collect?

We collect a range of data about you, including your contact details, legal issues and data on how you use our website.

How do you collect information?

We collect information over the phone, by email and through our website.

What do you do with this information?

We store and use your information to deliver you better legal services. This mostly involves communicating with you, marketing to you and occasionally sharing your information with our partners.

How do I contact you?

You can always see what data you’ve stored with us.

Questions, comments or complaints? Reach out on 1300 544 755 or email us at

View Privacy Policy