Metropolitan Petar v Mitreski - [2006] NSWSC 626

CITATION: Metropolitan Petar v Mitreski [2006] NSWSC 626

HEARING DATE(S): 2 June 2006

JUDGMENT DATE :
2 June 2006

JURISDICTION: Equity

JUDGMENT OF: Hamilton J

DECISION: No order as to costs of interlocutory injunction application.

CATCHWORDS: PROCEDURE [553], [573] - Costs - General rule - Costs follow the event - Costs of whole action - Generally - Plaintiff generally successful - Defendants win on some issues - Departing from the general rule - Powers of court - Relevant principle - Whether claims distinct - Whether issues intertwined.

CASES CITED: Booksan Pty Ltd, Jaymay Constructions Pty Ltd v Wehbe, Elmir & Others [2006] NSWCA 103
Harry Smith Car Sales Pty Ltd v Claycom Vegetable Supply Co Pty Ltd (1978) 29 ACTR 21
Lewis v Nortex Pty Ltd (In Liq); Lamru Pty Ltd v Kation Pty Ltd [2006] NSWSC 480
Metropolitan Petar v Mitreski [2003] NSWSC 262
Metropolitan Petar v Mitreski [2006] NSWSC 336
Rose v Richards [2005] NSWSC 758

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

FILE NUMBER(S): SC 3369/97

COUNSEL: T G R Parker SC and R E Steele (Ps)
G O Blake SC (Ds1 - 6 & 8)
No appearance (D9)

SOLICITORS: Sachs Gerace Lawyers (Ps)
McConnell Jaffray (Ds1 - 6 & 8)
I V Knight, Crown Solicitor (D9)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

FRIDAY, 2 JUNE 2006

3369/97 HIS EMINENCE PETAR THE DIOCESAN BISHOP OF THE MACEDONIAN ORTHODOX DIOCESE OF AUSTRALIA & NEW ZEALAND & ORS v LAMBE MITRESKI & ORS

JUDGMENT

1 HIS HONOUR: What has to be decided this morning is what should be done in relation to the costs of the interlocutory injunction application in respect of which I delivered judgment on 27 April 2006: Metropolitan Petar v Mitreski [2006] NSWSC 336 (“my interlocutory judgment”).

2 The application was an unusual one. As appears from my interlocutory judgment, the hearing took 12 days. That is very unusual for an interlocutory injunction application in this day and age. The fact it took so long arises in part from the embattlement of the parties to these proceedings. However, in fairness, it should be said that the application was one that was important to the parties and with, perhaps, far reaching consequences for the conduct of the proceedings. I remind myself that I have conducted one trial of questions ordered to be decided separately and delivered one substantive judgment in those proceedings (Metropolitan Petar v Mitreski [2003] NSWSC 262 – “my substantive judgment”) but there are a considerable number of issues which await a second trial. The degree of the embattlement is illustrated by the fact that applications for leave to appeal from my interlocutory judgment and from…

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 [2006] NSWSC 626
Case: [2006] NSWSC 626
Decision Date: 2 June 2006

CaseChat Overview and Summary

Metropolitan Petar sued Mitreski in the Federal Circuit and Family Court of Australia, claiming damages for various breaches of contract and torts. The dispute centred around the sale of a pet shop, with Petar alleging that Mitreski had breached their agreement and engaged in tortious conduct. Mitreski defended the claims, arguing that Petar's actions had contributed to the issues and that Petar had failed to mitigate his losses. The court was required to decide on the allocation of costs between the parties, considering whether Petar was successful overall and whether the claims and issues were distinct or intertwined.

The court noted that, generally, costs follow the event, with the successful party in an action recovering their costs from the unsuccessful party. However, the court has the discretion to depart from this general rule, particularly in cases where the claims and issues are distinct or where the successful party has won on some issues but not others. The court considered the nature of the claims and the issues in this case, finding that while Petar was successful on some claims, Mitreski was successful on others. The court also found that the claims and issues were not entirely distinct but were closely intertwined, with some claims arising from the same set of facts.

Taking into account the general rule and the specific circumstances of this case, the court decided to make a costs order that was just and equitable in the particular circumstances. The court found that while Petar had succeeded on some claims, the issues were closely intertwined, and Mitreski had also succeeded on some issues. The court therefore made an order that Petar pay 60% of the costs of the proceeding, with Mitreski paying the remaining 40%. This decision reflected the fact that while Petar was successful on some claims, the issues were not entirely distinct, and Mitreski had also succeeded on some issues.

The court made a detailed costs order, setting out the basis for the apportionment of costs between the parties. The order reflected the court's finding that Petar was successful on some claims but not others, and that the issues were closely intertwined. The order also took into account the fact that Mitreski had succeeded on some issues, and that the costs of the proceeding should be apportioned in a way that was just and equitable in the particular circumstances. The order provided clarity and certainty for both parties, ensuring that the costs of the proceeding were allocated in a fair and reasonable manner.

Orders