(1)The plaintiffs are entitled to a declaration to the effect that all the property of the Association other than the litigation funds are held as trustee on the trust declared by Hamilton J. If the defendants desire to contend that any litigation funds remain, they may have an account of the litigation funds at their own risk as to costs.
(2)The plaintiffs are entitled to declarations to the effect that the Association has, in breach of trust: (a) excluded the diocesan Bishop, (b) excluded the parish priest appointed by the Bishop, (c) prevented a priest licensed by the Bishop to conduct services in the church from doing so, (d) employed priests not appointed by the Bishop, and (e) failed to accept applications for membership from believers in the doctrines of the Macedonian Orthodox Church who have satisfied the criteria for membership specified in the 1994 Church constitution, the diocesan statute and the by-laws.
(3)The plaintiffs are entitled to injunctive relief that has the effect of compelling the Association to comply with the rules of Macedonian Orthodox Church as they apply to parishes of the Macedonian Orthodox Church in respect of not excluding or impeding the Bishop, not excluding or impeding Fr Mitrev, and admitting into membership those who meet the requirements of church law for membership of a parish assembly.
(4)The plaintiffs are entitled to an order that the Association account to the trust for the moneys paid to Fr Dzeparovski and Fr Despotoski, save those paid prior to November 1997 in respect of which the claim is statute barred.
(5)The plaintiffs are entitled to an order that each of the Committee Members accounts to the trust for the moneys paid to Fr Dzeparovski and Fr Despotoski while that Committee Member remained in office, save those paid prior to November 1997 in respect of which the claim is statute barred .
Direct that the parties bring in Short Minutes to give effect to these this judgment.
Catchwords:
TRUSTS AND TRUSTEES - Charitable trusts - church trust - trust property - where certain property held by trustees to permit its use by unincorporated association as a church of the Macedonian Orthodox Religion - whether income generated by church and parish activities is trust income - whether other property acquired with trust income is held upon same trusts. ASSOCIATIONS AND CLUBS - Incorporated associations - where property held by trustees to permit its use by a predecessor unincorporated association as a church of the Macedonian Orthodox Religion - where constitution of successor incorporated association provides that funds of association shall be applied to carry out the objects of the association - whether legislation and constitution impedes acquisition by incorporated association of further property on same trust. TRUSTS AND TRUSTEES - Charitable trusts - church trust - whether certain…
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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AGLC
Metropolitan Petar v Mitreski [2012] NSWSC 16
Case
[2012] NSWSC 16
Decision Date
CaseChat Overview and Summary
Metropolitan Petar and others sought to enforce certain obligations owed by trustees of the Macedonian Orthodox Church in Australia. The trustees were the respondents in the case which came before the Supreme Court of New South Wales. The court was asked to determine a range of questions pertaining to the governance and administration of the trust, including whether the income generated by church and parish activities was trust income, and whether certain provisions of church law were terms of the trust. The court was also asked to determine whether the resort to trust assets to fund the defence of proceedings brought against a trustee amounted to a breach of trust.
The court held that the income generated by the church and parish activities was trust income. It also held that certain provisions of church law were sufficiently fundamental to be terms of the trust. The court found that the resort to trust assets to fund the defence of proceedings against a trustee amounted to a breach of trust, but that the trustees ought fairly to be excused for the breach of trust. The court also held that the mere engagement in conduct causative of a breach of trust did not attract accessorial liability, and that a plaintiff's special interest in enforcing the trust did not prevent their claim from being an action on a cause of action in respect of a breach of trust.
The court made orders setting aside the proceedings brought against the trustee, and dismissed the claims of the plaintiffs. The court also made orders that the trustees of the church were to provide a written undertaking to the court of their future compliance with the trust, and that the plaintiffs were to pay the costs of the respondents.