His Eminence Metropolitan Petar, Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand v The Macedonian Orthodox Community Church St Petka Inc

The appeal concerned the exercise of a trial judge's discretion to provide judicial advice under section 63(1) of the *Trustee Act 1925* (NSW). The parties were His Eminence Metropolitan Petar, Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand (the claimants), and The Macedonian Orthodox Community Church St Petka Inc (the Association, the opponent). The dispute arose from proceedings concerning the management and administration of trust property, where the claimants sought judicial advice regarding the interpretation of the trust instrument and the opponent's conduct as trustee.

The central legal issues before the Court of Appeal were whether the trial judge erred in exercising his discretion to give judicial advice. Specifically, the court considered whether the judge failed to account for the fact that the principal issue for advice was a contested question in the main proceedings, namely whether the opponent had breached the trust and should be removed. This raised the question of whether judicial advice was an appropriate mechanism for determining substantive rights in adversarial proceedings. Furthermore, the court examined whether the trial judge erred by not adequately weighing the potential benefit of authorising the opponent to obtain funds from trust assets for its defence against the potential detriment to the trust if the claimants were successful. The court also considered whether section 63(2) of the *Trustee Act* empowered courts to make revocable orders regarding judicial advice.

The Court of Appeal held that the trial judge had erred in exercising his discretion. The court reasoned that judicial advice is not intended to resolve substantive disputes between parties in adversarial litigation. It is designed for situations where there is genuine uncertainty about the interpretation of a trust instrument or the proper administration of trust property, not to determine contested allegations of breach of trust or trustee removal. The court found that by seeking advice on these contentious matters, the opponent was essentially using the judicial advice mechanism to litigate the main proceedings, which was an inappropriate use of the provision. The court also noted that the potential detriment to the trust of authorising the opponent to use trust funds for its defence, particularly if the claimants were ultimately successful, had not been sufficiently weighed against any potential benefit.

Consequently, the Court of Appeal granted leave to appeal, upheld the appeal, set aside the trial judge's orders, and dismissed the Association's summons for judicial advice. Leave to appeal against earlier orders was refused, and parties were ordered to file submissions regarding costs.