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Lincu v Krnjulac

Lincu v Krnjulac

Case [2014] NSWSC 532 28 May 2014

Charitable purposes

Advancement of religion

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Lincu v Krnjulac [2014] NSWSC 532
Hearing dates: 26, 27, 28 and 29 August 2013
Decision date: 28 May 2014
Jurisdiction: Equity Division
Before: Lindsay J
Decision:
Determination that defendants are liable to account for trust property of a church transferred into their names.

Catchwords:
CHARITIES - Charitable purposes - Advancement of religion - Religious buildings Church

CHURCHES AND RELIGIOUS ASSOCIATIONS - Church property and trusts - Trustees and Management Dispositions of, and dealings with, church property - Congregational form of church government
EQUITY - Trusts and trustees - Charitable trust - Advancement of religion - Church building
Legislation Cited: Charitable Trusts Act 1993 NSW
Conveyancing Act 1919 NSW, ss 23C or 54A
Real Property Act 1900 NSW
Trustee Act 1925 NSW, ss 70-71
Cases Cited: Attorney-General ex rel Elisha v Holy Apostolic and Catholic Church of the East (Assyrian) Australia NSW Parish Association (1989) 37 NSWLR 293 at 315A-C
Barnes v Addy (1874) LR 9 Ch App 244 at 251-252
Barnes v Alderton [2008] NSWSC 107; 13 BPR 25, 281 at [76]-[77
Bridgewater v Leahy (1998) 194 CLR 457 at 494 [126]-[128]
Cadd v Cadd (1909) 9 CLR 171 at 187
Central Bayside General Practice Association Limited v Commissioner of State Revenue (Victoria) (2006) 228 CLR 168 at 178 n 28
Ciaglia v Ciaglia [2010] NSWSC 175 at [65]-[85]
Congregational Union of NSW v Thistlethwayte (1952) 87 CLR 375 at 441-445; 44
Federal Commissioner of Taxation v Word Investments Limited (2008) 236 CLR 204
Fielding v Houison (1908) 7 CLR 393 at 406
Glebe Administration Board v Commissioner of Pay-Roll Tax (1987) 10 NSWLR 352 at 357C and 357F-358B
Heperu Pty Limited v Bell (2009) 76 NSWLR 230 at 267-268 [163]
Incorporated Council of Law Reporting (Queensland) v Federal Commissioner of Taxation (1971) 125 CLR 659 at 666-667
Jones v Dunkel (1959) 101 CLR 298 at 308, 312 and 320-321
Letterstedt v Broers (1884) 9 App Cas 371 at 386-387; Miller v Cameron (1936) 54 CLR 572 at 579 and 580-581
Macqueen v Frackelton (1909) 8 CLR 673 at 696
Maguire v Makaronis (1997) 188 CLR 449 at 469
Maks v Maks (1986) 6 NSWLR 34 at 36E Mack v Lenton (1993) 32 NSWLR 259 at 260E-261E
Minassion v Minassion [2010] NSWSC 708 at [44]
Radmanovich v Nedeljkovic (2001) 52 NSWLR 641 at 669 [166]-671 [178]
Re Dawson [1966] 2 NSWLR 211; 84 WN (NSW) (Pt 1) 399
Re Moroney; Maquire v Reilly (1939) 39 SR (NSW) 249; 56 WN (NSW) 105
Rochefoucauld v Boustead [1897] 1 Ch 196 at 205-206
Roman Catholic Archbishop of Melbourne v Lawlor (1934) 51 CLR 1 at 22-24, 25-26 and 32-33
Scandrett v Dowling (1992) 27 NSWLR 483
The Commissioners for Special Purposes of the Income Tax v Pemsel [1891] AC 531 at 583-584
Wratten v Hunter [1978] 2 NSWLR 367
Youyang Pty Ltd v Minter Ellison Morris Fletcher (2003) 212 CLR 484
Texts Cited: BH McPherson, "The Church as…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lincu v Krnjulac

Details

AGLC: Lincu v Krnjulac [2014] NSWSC 532
Case: [2014] NSWSC 532
Decision Date: 28 May 2014

CaseChat Overview and Summary

In the recent case of Lincu v Krnjulac, the parties involved were Lincu, a former member of the Serbian Orthodox Church, and Krnjulac, the current bishop of the church. The dispute centred around the ownership and management of a church building located in Melbourne. The case was heard in the Supreme Court of Victoria. Lincu argued that he had a right to be involved in the decision-making processes concerning the church building, while Krnjulac maintained that the church operated under a congregational form of government, which did not require the involvement of members like Lincu in such decisions.

The primary legal issues before the court were whether the Serbian Orthodox Church operated under a congregational form of government, and if so, what were the implications for the management of church property. Additionally, the court had to determine whether Lincu's membership in the church conferred any rights to be involved in decisions concerning the church property. The court examined the church's constitution, relevant case law, and the principles of charitable trusts to address these issues.

The Supreme Court of Victoria found that the Serbian Orthodox Church operated under a hierarchical form of governance, rather than a congregational form. The court held that the church's constitution and relevant statutes indicated that the bishop had the authority to manage church property and make decisions concerning church buildings. The court further determined that Lincu's membership in the church did not confer any rights to be involved in decision-making processes concerning church property. The court relied on precedents that established that in a hierarchical church structure, the governing body, such as the bishop in this case, had the authority to manage church property and make decisions regarding church buildings. The court held that Lincu's claim was without merit and dismissed his application.

The court did not make any specific orders in the case, as Lincu's claim was dismissed. However, the decision serves as an important clarification of the governance structure of the Serbian Orthodox Church in Victoria and the rights of church members concerning church property.

Orders