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

The High Court of Australia heard an appeal concerning the entitlement of a trustee to seek judicial advice regarding the funding of its defence against allegations of breach of trust. The dispute involved the Macedonian Orthodox Community Church St Petka Inc (the appellant) and His Eminence Petar the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand (the respondents), arising from complex and protracted litigation concerning charitable trust property.

The central legal issues before the High Court were whether the Supreme Court of New South Wales had erred in its exercise of discretion under s 63 of the *Trustee Act 1925* (NSW) when refusing to grant the trustee judicial advice, specifically concerning its right to fund its defence from trust property and its entitlement to reimbursement for costs. The Court also considered the principles governing appellate review of discretionary decisions, particularly the necessity of identifying a specific error in the trial judge's reasoning, as established in *House v The King*.

The High Court reasoned that the Court of Appeal had erred in disturbing the primary judge's discretionary orders. The Court emphasised the importance of appellate restraint when reviewing decisions made under s 63 of the *Trustee Act 1925* (NSW), noting that such powers, while frequently used, rarely reach final appellate courts. The Court found that the Court of Appeal had not identified the requisite *House v The King* error to justify interfering with the trial judge's conclusions, which had considered the relevant factors, including the best interests of the trust and the adversarial nature of the proceedings. The Court also noted that the trustee's financial position was not irrelevant to the exercise of the discretion.

The High Court allowed the appeal, setting aside certain orders of the Court of Appeal and reinstating the entitlement of the appellant to be reimbursed from trust property for its costs incurred in the Court of Appeal and the High Court, to the extent not otherwise paid. The Court also dismissed the application for special leave to cross-appeal.