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…

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: [2006] NSWSC 405
Decision Date: 3 May 2006

CaseChat Overview and Summary

In the case of Metropolitan Petar v Mitreski, the applicants sought an interlocutory injunction to prevent the respondents from using property that they claimed was subject to a charitable trust to pay their legal costs. The Supreme Court of Victoria was tasked with determining whether the applicants had established the requisite criteria to be granted an interlocutory injunction. The central legal issues before the court were whether the applicants had a serious question to be tried and whether the balance of convenience favoured the grant of an injunction.

The court considered the evidence presented regarding the nature and existence of the alleged charitable trust, the applicants' likelihood of success on the merits, and the potential harm that would result if the injunction were not granted. The court concluded that the applicants had demonstrated a serious question to be tried, as there was a genuine dispute over the existence of the charitable trust and the proper use of the property. The court also found that the balance of convenience favoured the grant of an injunction, as the respondents' use of the property to pay legal costs could result in significant harm to the applicants' interests. Consequently, the court determined that an interlocutory injunction was appropriate.

The final orders of the court were that the respondents were restrained from using the property in question to pay their legal costs until the matter was further heard. The court also ordered that the respondents provide an undertaking as to costs in the event that the applicants were ultimately unsuccessful in their claim. The decision highlights the importance of demonstrating a serious question to be tried and the balance of convenience when seeking an interlocutory injunction in cases involving alleged breaches of charitable trusts.

Orders