His Grace Metropolitan Petar v Nikolovski
[2000] VSC 447
•23 October 2000
| SUPREME COURT OF VICTORIA | |
| PRACTICE COURT | Not Restricted |
No. 2780 of 2000
| HIS GRACE METROPOLITAN PETAR AND ANOTHER | Plaintiffs |
| v. | |
| PECO NIKOLOVSKI AND OTHERS | Defendants |
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JUDGE: | BEACH, J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 23 OCTOBER 2000 | |
DATE OF JUDGMENT: | 23 OCTOBER 2000 | |
CASE MAY BE CITED AS: | HIS GRACE METROPOLITAN PETAR & ANOR. v. NIKOLOVSKI & ORS. | |
MEDIUM NEUTRAL CITATION: | [2000] VSC 447 | |
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CATCHWORDS: Mandatory injunction – Unjustified and unwarranted acts of members of a church removing property from the church – Unjustified and unwarranted transfer of church money.
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APPEARANCES: | Counsel | Solicitors |
For the Plaintiffs | G.H. Garde QC with A.W. Sandbach | Novatsis & Alexander |
| For the Defendants | D. Klempfner | Secombs |
HIS HONOUR:
This is yet another dispute which has come before this court involving the Macedonian Orthodox Church.
If one is interested in the history of the Church in this country, its hierarchy, etc., and the earlier disputes which have occurred in this State between its members, I would suggest the reader read the very illuminative judgment of Byrne, J. in His Grace Metropolitan Petar and Ors v. Kostovski & Ors, unreported, 27 October 1997.
The first five defendants in the present proceeding are members of the Macedonian Orthodox Church "St. Prophet Ilia". The sixth defendant is their solicitor.
At a meeting of the members of the church held on 22 August 2000, the first five defendants were elected to the administrative council of the church. It is said that following that meeting, many of the members of the church became dissatisfied with the behaviour of the members of the Administrative Council and of its decisions, so much so that some 317 members of the church signed a petition calling upon the Diocesan Bishop to facilitate the calling of a special meeting of the Church members for the purpose of electing a new Administrative Council in accordance with the by-laws of the Church.
On 22 September the Holy Bishop's Synod of the Macedonian Orthodox Church directed that a special general meeting of the Church be held to elect a new Administrative Council. Such a meeting was called for 8 October. At the meeting, a new Administrative Council was appointed. None of the first five defendants were elected to it.
Whilst the meeting was taking place that day, the first five defendants or their agents secretly entered the Church's administration offices and removed the Church's registers, books of account, banking records, cheque books, minute books and certain keys.
On the following day, the first, second and third defendants represented to the Church's bankers that they were still the President, Secretary and Treasurer of the Administrative Council and directed the bank to telegraphically transfer all the money of the Church held on deposit by the bank, namely $159,530, to the trust account of the their solicitors, the 6th defendant.
I now have an application by His Grace Metropolitan Petar and the Macedonian Orthodox Church "St Prophet Ilia" seeking mandatory injunctions requiring the first five defendants to return to the Church the books of account, etc., taken from the Church on 8 October, and requiring the 6th defendant to transfer back to the Church's bank account the sum of $159,530.
The basis upon which the first five defendants acted in the manner they did on 8 October is set out in paragraph 13 of the affidavit of Zivko Murgovski sworn 20 October 2000, which reads -
"13.Because of the turmoil in the Parish and what I and the first five Defendants believe is an attack on the validly elected Management Board that reflects the wishes of the members, the first five Defendants took steps to secure the books and records of the Church and its finances. We arranged for the transfer of $159,530.00 of the Church funds into the trust account of Secombs, solicitors."
Mr Murgovski, on his own behalf and on behalf of the other defendants who are members of the church, further contends that the meeting of 8 October was not validly called. Similar arguments were raised before Byrne, J. and rejected by him in the earlier case to which I have referred.
In my opinion, the provisions in the Church of St Prophet Ilia's constitution relevant for present purposes are clauses 3, 4, 39, 40, 67 and the opening words of clause 68, which read -
"3.The Church "St. Prophet Ilia", with all its appurtenances, real and personal, is the exclusive property of the General Meeting - the members of the church. For no reason can the same be transferred/appropriated to a group of persons, Company or institution.
4.The Macedonian Orthodox Church "St. Prohphet Ilia" is an integral part of the Macedonian Orthodox Church in Macedonia. It is under its religious jurisdiction and is guided by the Holy Episcopal Synod of the Macedonian Orthodox church, respectively the Bishop of the Diocese in so far as such does not conflict with any municipal, provincial or federal laws of Australia.
39.The Treasurer, with his Assistant, takes care of the church property, keeps the financial books, every day, gathers the church revenue, and pays out the allotted sums in pursuance of the budget, he deposits the cash receipts in the bank to the credit of the church's current account.
40.The Church account in the Bank is in the name of the church, and may be in one or more banks. No money may be withdrawn from the Bank without the order of the members of the Administrative Council. For this purpose the Administrative Council has to appoint special persons.
67.The Administrative Council shall make provisions for the safe custody of all books and documents of the Incorporated Association which shall be kept at the church premises where they may be made available for inspection by member upon the Administrative Council having been given reasonable notice of the member's intention to inspect.
68.(a) The income and property of the Association shall be used and applied solely in promotion of its purpose and the exercise of its powers as set out herein and no proportion thereof shall be distributed paid or transferred directly or indirectly by way of dividend, bonus or otherwise by way of profit to or amongst the members of the Association."
It is not disputed by counsel for the first five defendants that there is a serious issue to be tried in the proceeding. What he contends is that the status quo as it is at the present should be maintained to the trial of the proceeding.
For its part, the sixth defendant chose not to be represented at the hearing before me, very properly adopting the position that it will abide any order of the court. I should say in that regard that the transfer of the church funds to the trust account of the sixth defendant was done by the first three defendants without the knowledge of the sixth defendant.
The material before me in relation to the calling of the meeting on 8 October and what happened at the meeting satisfies me that it is strongly arguable that the meeting was validly called, that those attending the meeting were entitled to vote and that, as a consequence of the vote, the first five defendants lost their position on the Administrative Council of the Church.
In my opinion, that alone would be sufficient justification for granting the plaintiff's application. But there are more cogent reasons in the present case for doing so. The actions of the first five defendants were high-handed and in complete breach of the constitution of the Church, in particular clauses 40 and 67.
There is no evidence before me which causes me to doubt that the present Administrative Council will properly administer the funds of the Church. Further, to prevent the Church having access to those funds will severely embarrass it so far as its day-to-day operations are concerned. Perhaps more importantly is the fact that the mortgage over the church's property is now in arrears causing the church to incur penalty interest and to run the risk of foreclosure.
In my opinion, the criteria one must take into account in determining whether to grant a mandatory interlocutory injunction is satisfied in the present case.
Counsel for the plaintiffs having given the usual undertaking as to damage, the court orders -
1.The name of the second-named plaintiff in the title of the proceeding be amended to read "Macedonian Orthodox Church St Prophet Ilia Inc.";
2.The sixth defendant forthwith repay the sum of $159,530 to the bank account of the second plaintiff at the Sunshine branch of the Bank of Melbourne, account number 65991184;
3.The first-named to fifth-named defendants forthwith deliver up to the second-named plaintiff the registers, books of account, banking records, cheque books, minute books and keys removed by them from the offices of the second plaintiff;
4.The defendants pay the plaintiffs' costs of this application to be taxed between solicitor and client.
I make that costs order because I consider that the first five defendants were totally unjustified in acting in the manner they did on 8 and 9 October and I see no reason why the other members of the parish should be responsible for the costs of this application.
I direct that this order be prepared by the solicitors for the plaintiffs and brought to me for authentication. I reserve liberty to the parties to apply.
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