His Eminence Metropolitan Petar, Diocesan Bishop of The Macedonian Orthodox Church of Australia and New Zealand v The Macedonian Orthodox Community Church St Petka Incorporated (No 2)

In the New South Wales Court of Appeal, the dispute concerned the costs of an interlocutory appeal and the hearing at first instance. The parties involved were His Eminence Metropolitan Petar, Diocesan Bishop of The Macedonian Orthodox Church of Australia and New Zealand (the plaintiffs/appellants) and The Macedonian Orthodox Community Church St Petka Incorporated (the first respondent).

The court was required to determine several issues relating to costs. These included whether the costs of the hearing at first instance should be the plaintiffs' costs in the cause, and whether the costs of the appeal should be paid by the respondent. Further, the court considered the effect of the appellant withdrawing a paragraph from its Notice of Appeal and proposing alternate orders on its entitlement to costs, specifically whether it should only receive 90 per cent of its costs. The court also addressed an application for a Suitors' Fund Certificate under the Suitors' Fund Act 1951 (NSW), considering the rationale of the legislation and whether the respondent's conduct disentitled it to a certificate, and whether the appellant's costs should be limited to the maximum amount payable under such a certificate. Finally, the court considered whether the costs of the appeal should be deferred until the conclusion of the proceedings.

The Court of Appeal ordered that the costs of the hearing at first instance were to be the plaintiffs' costs in the proceedings. The first respondent was ordered to pay the appellants' costs of the appeal. The respondent was granted a certificate under the Suitors' Fund Act 1951 (NSW), provided it was otherwise entitled to one. The question of whether the Association could use Schedule A and non-Schedule A property to pay the ordered costs was referred to the trial judge for determination at the conclusion of the proceedings.