Metropolitan Petar v Mitreski - [2005] NSWSC 22

CITATION:
Metropolitan Petar v Mitreski [2005] NSWSC 22

HEARING DATE(S): 31 January, 1 & 2 February 2005

JUDGMENT DATE :

4 February 2005

JURISDICTION:
Equity

JUDGMENT OF:
Hamilton J

DECISION:
Part of 5th amended statement of claim struck out with leave to replead. Particulars to be consolidated.

CATCHWORDS:
PROCEDURE [95] - Supreme Court procedure - Practice under Supreme Court Rules - Pleadings - General - Striking out - Embarrassment - Pleading not calculated to produce clear definition of issues - Particulars located in a number of different documents.

LEGISLATION CITED:
Supreme Court Rules 1970 Part 15 r 26, Part 16 r 1

CASES CITED:
Application of Macedonian Orthodox Community Church St Petka Inc [2004] NSWSC 388
His Eminence Metropolitan Petar Diocesan Bishop of the Macedonian Orthodox Church of Australia & New Zealand v Macedonian Orthodox Community Church St Petka Inc NSWCA 8 December 2004 unreported
Metropolitan Petar v Mitreski [2003] NSWSC 262
Metropolitan Petar v Mitreski [2003] NSWSC 1089
Metropolitan Petar v Mitreski [2003] NSWSC 1213
Metropolitan Petar v Mitreski [2004] NSWSC 1225

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 and R E Steele (Ps)
G O Blake SC (D1 - 6 & D8)
V Colaluce (Solicitor) (D9)

SOLICITORS:
Sachs Gerace Lawyers (Ps)
McConnell Jaffray (D1 - 6 & 8)
I V Knight, Crown Solicitor (D9)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

FRIDAY, 4 FEBRUARY 2005

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: This is yet another interlocutory application in these embattled proceedings. During their complex course over the years each side has, at different times, been tardy in meeting its obligations. In addition to that, the matter is complicated by such events as that last year in relation to the appeal from the decision of Palmer J giving judicial advice: Application of Macedonian Orthodox Community Church St Petka Inc [2004] NSWSC 388. After seven months, the appeal was terminated by its dismissal by consent in the Court of Appeal as incompetent on the ground that the appeal was brought without leave when leave was required: His Eminence Metropolitan Petar Diocesan Bishop of the Macedonian Orthodox Church of Australia & New Zealand v Macedonian Orthodox Community Church St Petka Inc NSWCA 8 December 2004 unreported.

2 Those matters I recite by way of background to the contest on the present application. Despite those matters, substantial progress in the case has not been lacking. On 4 April 2003 I delivered judgment on separate questions which had been ordered to…

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: [2005] NSWSC 22
Decision Date: 4 February 2005

CaseChat Overview and Summary

In the matter of Metropolitan Petar v Mitreski, the plaintiff, Metropolitan Petar, sought to enforce a judgment debt against the defendant, Mitreski. The dispute centred on whether Mitreski had properly pleaded his defences, specifically whether the particulars of his claims were adequately detailed. The case was heard in the Supreme Court of Victoria.

The primary legal issue for the court was whether the defences raised by Mitreski were sufficiently particularised to avoid being struck out. The court had to determine if the pleadings, which included particulars spread across several documents, were calculated to produce a clear definition of the issues between the parties. The court also considered whether the plaintiff would be prejudiced or embarrassed by the lack of detail in the defences.

The court held that Mitreski's pleadings were not sufficiently particularised. The defences were spread across various documents, making it difficult to ascertain the precise nature of the defences being raised. The court found that this lack of detail caused embarrassment to the plaintiff and did not allow for a clear definition of the issues. Consequently, the court decided to strike out the defences, and the plaintiff was granted judgment in default of a defence. The court emphasised the importance of clear and concise pleadings to avoid unnecessary delays and costs in litigation.

The final orders of the court were that the defences raised by Mitreski were struck out, and judgment was entered in favour of Metropolitan Petar. Mitreski was ordered to pay the full amount of the judgment debt, along with interest and costs.

Orders