Macedonian Orthodox Community Church St Petka Incorporated v Metropolitan Petar

The case of *Macedonian Orthodox Community Church St Petka Incorporated v Metropolitan Petar* involved an appeal to the Court of Appeal of New South Wales concerning a dispute over property held by an incorporated association. The association was originally formed as an unincorporated body to acquire a site for a Macedonian Orthodox Church and promote the Macedonian Orthodox Religion. Subsequently, it was incorporated under the *Associations Incorporation Act 1984*, and further property was acquired both before and after incorporation. The central dispute revolved around whether the trust applicable to the church site and other property had been breached by the association's conduct, including its exclusion of a bishop and his appointed priest, its own appointment of priests, limitations on membership, and other actions.

The Court of Appeal was required to determine several key legal issues. These included whether the trust established for the church site and other property was one that permitted its use by the association for a church and the promotion of the Macedonian Orthodox Religion, and whether this trust had been varied or extinguished upon the incorporation of the association. Further issues concerned whether the association had breached its trust obligations through its conduct, whether members of the association's council were accessorially liable for these breaches, and whether the association should be excused from liability for its breaches of trust under section 85 of the *Trustee Act 1925*.

The Court of Appeal's reasoning addressed the nature of the trust and its persistence after incorporation. It was held that the trust was not extinguished upon incorporation and that the association had indeed breached its trust obligations through its actions. However, the Court allowed appeals concerning the accessory liability of council members, finding them not liable. The Court also granted relief to the association under section 85 of the *Trustee Act 1925*, excusing it from personal liability for specific breaches related to the payment of emoluments to appointed priests.

The Court of Appeal made various orders, including granting leave to appeal and cross-appeal for the parties. It dismissed the association's appeal in part, set aside the first instance refusal to grant relief under section 85 of the *Trustee Act*, and ordered that the association be relieved from personal liability for certain breaches. The appeals of the council member appellants against their accessory liability were allowed, with judgment entered for them on that claim. The appeals and cross-appeal of Metropolitan Petar and Father Mitrev were otherwise dismissed. The Court also directed parties to file submissions concerning costs orders.