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Metropolitan Petar v Mitreski

Metropolitan Petar v Mitreski

Case [2012] NSWSC 1610 21 December 2012

Charitable Trusts

Accessorial Liability

Costs

Interlocutory Orders

Trusts & Equity

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Supreme Court

New South Wales

Medium Neutral Citation: Metropolitan Petar v Mitreski [2012] NSWSC 1610
Hearing dates: 30 April 2012
Decision date: 21 December 2012
Jurisdiction: Equity Division
Before: Brereton J
Decision:
See orders

Catchwords: TRUSTS AND TRUSTEES - Charitable trusts - accessorial liability - where Association was an integral element of Macedonian Orthodox Church under Church law - where office-bearers knew this but did not know that Association held its property on charitable trust and instigated actions in accordance with Association's constitution but in breach of terms of charitable trust - whether given knowledge of relationship of Association with Church, including that office-holders customarily swore oaths to uphold church law, it transgressed ordinary standards of honest behaviour for them to procure the appointment of and remunerate a priest without the Bishop's authority - held, it did.
COSTS - where dispute concerned genuinely held views of opposing factions in relation to the conduct of a religious association - where proceedings highly contentious - whether proceedings analogous to public interest proceedings - held, they were not - relevance of effect on trust property of making or not making a costs order - whether just that a party who successfully brings proceedings to enforce a charitable trust should be left unindemnified by unsuccessful defendants - costs of unprosecuted cross-claim - whether rendered inutile by subsequent events - costs of interlocutory proceedings brought in aid of rights under interlocutory regime, which rights were ultimately vindicated.
Legislation Cited: (NSW) Trustee Act 1925, s 85
Cases Cited: Adler v ASIC [2003] NSWCA 131; (2003) 46 ACSR 504
Giorgianni v The Queen [1985] HCA 29; (1985) 156 CLR 473
Metropolitan Petar v Mitreski [2012] NSWSC 16
Metropolitan Petar v Mitreski [2012] NSWSC 167
Yorke v Lucas [1985] HCA 65; (1985) 158 CLR 661
Category: Consequential orders
Parties: His Eminence Petar the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia & New Zealand (first plaintiff)
The Very Reverend Father Mitko Mitrev (second plaintiff)
Lambe Mitreski (first defendant)
Peco Damcevski (second defendant)
Boris Minovski (third defendant)
Eftim Eftimov (fourth defendant)
Mile Marcevski (fifth defendant)
Macedonian Orthodox Community Church St Petka Incorporated (sixth defendant)
Naum Despotoski (eighth defendant)
Attorney-General for the State of NSW (ninth defendant)
Representation: Counsel:
Mr TGR Parker SC w Mr RE Steele (Ps)
Mr M Leeming SC w Ms L Goodchild (D1-6, 8)
Mr M Izzo (D9)
Solicitors:
Sachs Gerace Lawyers (Ps)
McConnell Jaffray Lawyers (D1-6, 8)
Crown Solicitor (D9)

File Number(s): 1997/25609

Judgment

This judgment deals with two issues which remain outstanding from the judgment delivered on 3 February 2012 [Metropolitan Petar v Mitreski [2012] NSWSC 16] ("the principal judgment"), and the consequential orders made on 5 March 2012 [Metropolitan Petar v Mitreski [2012] NSWSC 167] ("the orders judgment"), namely the alleged accessorial liability of the first, second, third, fourth and fifth defendants, ("the Committee Members"), and the question of costs.

Accessorial Liability

The principal judgment addressed the principles relevant to accessorial liability in this context…

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 Metropolitan Petar v Mitreski

Details

AGLC: Metropolitan Petar v Mitreski [2012] NSWSC 1610
Case: [2012] NSWSC 1610
Decision Date: 21 December 2012

CaseChat Overview and Summary

Metropolitan Petar was the plaintiff, and the defendants were Mitreski and others, in a case before the Supreme Court of Victoria. The dispute centred around the administration of a charitable trust held by an association that was part of the Macedonian Orthodox Church. The plaintiff sought to enforce the terms of the charitable trust against the defendants who were office-bearers of the association. The legal issues the court needed to address included whether the defendants' actions, in appointing and remunerating a priest without the Bishop's authority, breached the ordinary standards of honest behaviour given their knowledge of the association's relationship with the Church.

The court held that the defendants' actions did transgress ordinary standards of honest behaviour. It was noted that the office-bearers were aware of the association's integral connection to the Church under Church law and understood the customary oaths they swore to uphold church law. Despite this, they proceeded with actions that were in breach of the charitable trust terms. The court found that their conduct fell short of the standards expected under the circumstances. In terms of costs, the court determined that the proceedings were not analogous to public interest proceedings and were highly contentious. It was held that it was not just for the successful party to bring proceedings to enforce a charitable trust to be left unindemnified by the unsuccessful defendants. The court also considered the effect on trust property and the relevance of making or not making a costs order, ultimately deciding on the costs to be awarded.

The final orders included a declaration that the defendants had breached their duties as trustees, an order for the defendants to account for their actions, and a determination of costs. The court awarded costs to the plaintiff, taking into account the contentious nature of the proceedings and the vindication of the plaintiff's rights under the interlocutory regime. The costs of the unprosecuted cross-claim and interlocutory proceedings were also considered, with the court deciding on the appropriate allocation of costs.

Orders