Metropolitan Petar v Mitreski

[2006] NSWSC 405

CITATION:	Metropolitan Petar v Mitreski [2006] NSWSC 405
HEARING DATE(S):	3 May 2006
JUDGMENT DATE :	3 May 2006
JURISDICTION:	Equity
JUDGMENT OF:	Hamilton J
DECISION:	Form of injunctive relief pursuant to [2006] NSWSC 336 determined.
CATCHWORDS:	EQUITY [338] Equitable remedies - Injunctions - Interlocutory injunctions – Application to restrain use of property alleged to be subject to charitable trust to pay defendants’ costs of proceedings – Form of orders.
CASES CITED:	Metropolitan Petar v Mitreski [2006] NSWSC 336
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) C Tassone (Solicitor) (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

WEDNESDAY, 3 MAY 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: There has been argument before me this morning on conflicting versions of the short minutes as to the injunctive orders that I ought make as a result of my judgment of 27 April 2006: Petar v Mitreski [2006] NSWSC 336 (“my judgment”). Mr Blake, of Senior Counsel for the defendants, argues that the injunction I grant ought extend not only to costs of these proceedings but to costs of what have been called the judicial advice proceedings and the judicial advice appeal proceedings. I think that is correct. The use of the Schedule A property should be restrained in relation to all three sets of proceedings. Mr Blake argues that this injunction should relate generally only to costs incurred after 7 May 2004 and that the use of property to pay costs incurred in the judicial advice proceedings before that date ought not be restrained. Despite opposition by Mr Parker, of Senior Counsel on behalf of the plaintiffs, I agree with Mr Blake that it is clearly the intent of my judgment that there should be no restraint of payment of the costs of these proceedings incurred up to 7 May 2004 and the injunction will be moulded accordingly. However, whether or not payment of costs of the judicial advice proceedings incurred before that day could be said to be literally excluded from the injunctive relief as defined in [36], it was not my intention to deal in that way with the costs of the judicial advice proceedings which, in my view, fall within the area to be dealt with by the judicial advice Judge and are contemplated by the judicial advice Judge as falling within that area. The injunction will therefore be moulded to restrain payment of legal costs of these proceedings incurred after 7 May 2004 and legal costs of the judicial advice proceedings and the judicial advice appeal proceedings generally.

2 Mr Parker has urged upon me that the restraint should extend to the use of Schedule A property in relation to costs of these proceedings incurred up to as well as after 7 May 2004, but that was not the intent of my judgment as stated in [36].

3 Whilst an exception was included in the temporary injunction which has been in force during the course of the application as to the costs of any appeal from these orders, this was quite hypothetical during that period, as there was nothing to appeal from. Counsel for both the plaintiffs and the defendants are now agreed that that exception should not be included in this order and that any use of funds in relation to any appeal (which is not to be encouraged) should be dealt with by the Court of Appeal, if such an appeal is in fact instituted.

4 It was also argued on the plaintiffs’ behalf that the exemption of pre 8 May 2004 costs should not extend to the land on which the church stands, the Holy objects or the child care centre. That submission is not in accordance with the decision which I made in [36] of my judgment and I do not propose to incorporate that exception in the order.

5 I had previously fixed 31 May 2006 for the hearing of the question of costs arising out of the application. I am now told that Mr Parker is not available on that day. 1 June 2006 is available to Senior Counsel on both sides and to the Court. The fixture for 31 May is therefore cancelled and the hearing of the costs question is fixed for 1 June 2006.

6 I make the following orders:

(1) Orders in accordance with short minutes initialled by me and placed with the papers.
(2) Direct that those orders be entered forthwith.
(3) Vacate the fixture for argument as to costs on 31 May 2006 and fix that argument for 1 June 2006 at 10 am before me.
(4) Direct that the parties deliver to the other parties and to my Associate written submissions on costs as follows:
Plaintiffs on or before 10 May 2006.
Defendants on or before 17 May 2006.
Plaintiffs in reply on or before 24 May 2006.

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