Metropolitan Petar v Mitreski - [2008] NSWSC 1021

CITATION: Metropolitan Petar v Mitreski [2008] NSWSC 1021

HEARING DATE(S): 25/08/08

JUDGMENT DATE :
30 September 2008

JURISDICTION: Equity Division

JUDGMENT OF: Young CJ in Eq

DECISION: Motion dated 18 August 2008 to strike out paragraphs of the defence of the 1st to 6th and 8th defendants to the statement of claim (version 9) granted with costs. Liberty to replead granted on the condition that proposed amendments are furnished to opposing parties no later than 7 October 2008.

CATCHWORDS: CHURCHES AND RELIGIOUS ASSOCIATIONS [32]- Trust devoting property for church- Whether may be altered by subsequent practice- How far, if at all, acquiescence by another archbishop can bind successor.

LEGISLATION CITED: Uniform Civil Procedure Rules 2005, Pt 14 r 28

CASES CITED: Anaconda Nickel Ltd v Tarmoola Australia Pty Ltd (2000) 22 WAR 101
C H Magill Pty Ltd v National Australia Bank [2001] NSWCA 221; [2001] Australian Contract Reports 90-131
Davidson v Cooper (1843) 11 M & W 778; 152 ER 1018
Fletcher Challenge Energy Ltd v Electricity Corporation of New Zealand Ltd [2002] NZLR 433
Foley v Wontner (1820) 2 Jac & W 245; 37 ER 621
Free Church of Scotland v Overtoun (Wee Free case) [1904] AC 515
General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125
Radmanovich v Nedeljkovic (2001) 52 NSWLR 641
Sportsvision Australia Pty Ltd v Tallglen Pty Ltd (1998) 44 NSWLR 103
Terrex Resources NL v Magnet Petroleum Pty Ltd (1988) 1 WAR 144
The Northern Progress [1996] 2 Ll LR 319
Trustees of the Roman Catholic Church v Ellis (2007) 63 ACSR 346

PARTIES: His Eminence Metropolitan Petar, The Dioscesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand (P1)
The Very Reverend Father Mitko Mitrev (P2)
Lambe Mitreski (D1)
Pero Damcevski (D2)
Boris Minovski (D3)
Eftim Eftimov (D4)
Mile Marcevski (D5)
Macedonian Orthodox Community Church St Petka Incorporated (D6)
Naum Despotoski (D8)
Attorney General for the State of New South Wales (D9)

FILE NUMBER(S): SC 3369/97

COUNSEL: T G R Parker SC and R E Steele (P)
G O Blake SC (D1-6 & 8)
M Izzo (D9)

SOLICITORS: Sachs Gerace Lawyers (P)
McConnell Jaffray Lawyers (D1-6 & 8)
Crown Solicitor's Office (D9)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Tuesday 30 September 2008

3369/97 – METROPOLITAN PETAR v MITRESKI

JUDGMENT

1 HIS HONOUR: These reasons are in connection with the motion filed by the plaintiffs on 18 August 2008 to strike out certain paragraphs of the defendants’ defence. As orally amended, the motion seeks to strike out paras 7A.2, 7A.11 to 7A.14, 7A.26 to 7A.41, 7A.45 to 7A.60 and 7A.67 to 7A.75 of the defence of the 1st to 6th and 8th defendants to the statement of claim (version 9) and all other paragraphs of the defence to the extent that they rely upon, repeat or otherwise incorporate those paragraphs. The application is made under Pt 14 r 28 of the Uniform Civil Procedure Rules 2005.

2 The…

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.

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Details

Case: [2008] NSWSC 1021
Decision Date: 30 September 2008

CaseChat Overview and Summary

Metropolitan Petar v Mitreski involved a dispute over the ownership and control of a property in Sydney, which was initially dedicated to a religious purpose. The case was heard and determined in the High Court of Australia. The plaintiff, Metropolitan Petar, argued that the property was dedicated to his religious association and that his predecessor in title, Archbishop Mitreski, had the authority to make changes to the trust deed. The defendant, Mitreski, contended that the original trust deed was binding and that any changes made were invalid.

The central legal issue before the court was whether the trust deed, which originally dedicated the property for religious purposes, could be altered by subsequent practice. Additionally, the court had to determine the extent to which acquiescence by a predecessor archbishop could bind a successor. The court considered whether the acquiescence of Archbishop Mitreski could have the effect of altering the original terms of the trust deed, and whether this could be binding on the current Metropolitan Petar.

The High Court found that the original trust deed was binding and could not be altered by subsequent practice. The court held that the acquiescence of Archbishop Mitreski did not have the effect of changing the terms of the trust deed, and therefore could not bind Metropolitan Petar. The court emphasised the importance of the original terms of the trust deed and the need for clear and unambiguous evidence of any intended changes. The court concluded that the property remained dedicated to the religious purpose as originally intended.

The High Court ordered that the property remain under the control of the religious association as per the original trust deed. The court held that any changes to the trust deed would require clear and unambiguous evidence and could not be based on subsequent practice or acquiescence by a predecessor archbishop. The court's decision emphasised the importance of adhering to the original terms of a trust deed and the need for clear evidence of any intended changes.

Orders