Metropolitan Petar v Mitreski

[2003] NSWSC 1089

CITATION:	Metropolitan Petar v Mitreski [2003] NSWSC 1089
HEARING DATE(S):	17 April 2003
JUDGMENT DATE:	26 November 2003
JURISDICTION:	Equity
JUDGMENT OF:	Hamilton J
DECISION:	Declarations made.
CATCHWORDS:	PROCEDURE [748] - Miscellaneous procedure - Declarations - Appropriate form of relief - Discretion of court - Other cases - Charitable trust - Form of declarations - Declarations should reflect issues in contention among the parties.
CASES CITED:	Metropolitan Petar v Mitreski [2003] NSWSC 262
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:	B A J Coles QC, T G R Parker and R E Steele (Ps) N C Hutley SC (D1 - 6 & 8) R Lancaster (D9)
SOLICITORS:	Sachs Gerace Lawyers (Ps) McConnell Jaffray (D1 - 6 & 8) I V Knight, Crown Solicitor (D9)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

Wednesday, 26 November 2003

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

JUDGMENT

1 HIS HONOUR: There has been argument before me as to the form of the declaratory orders I should make consequent on my judgment of 4 April 2003: Metropolitan Petar v Mitreski [2003] NSWSC 262 (“my judgment”). I should add that I was specifically asked by the parties to defer the making of formal orders and the giving of reasons for the form of those orders until after my return from my recent leave.

2 The plaintiffs have contended that the orders should be as follows:

“1 Declare that the Sixth Defendant holds, and has at all times since its incorporation held, the property specified in Schedule A to the Judgment of the Court in these proceedings on 4 April 2003 on trust to permit the said property to be used by the Macedonian Orthodox Church St Petka Rockdale as a site for a church of the Macedonian Orthodox Religion and for buildings and activities concerned with or ancillary to the encouragement, practice and promotion of the Macedonian Orthodox Religion.
2 Declare that the trust referred to in declaration 1 is a valid charitable trust.”

The defendants (being the defendants other than the Attorney General) have contended that the first two orders should be as follows:

“1 Declare that the property, referred to in Schedule A hereto was prior to the transfer of the legal titles to the sixth defendant held upon charitable trust to permit the trust property to be used by the Macedonian Orthodox Church St Petka Rockdale NSW Australia as a site for a church of the Macedonian Orthodox Religion and for other buildings and activities concerned with or ancillary to the encouragement, practice and promotion of the Macedonian Orthodox Religion.
2 Declare that the property, referred to in Schedule A hereto is held upon charitable trust by the sixth defendant to permit the sixth defendant to use the trust property as a site for a church of the Macedonian Orthodox Religion and for other buildings and activities concerned with or ancillary to the encouragement, practice and promotion of the Macedonian Orthodox Religion.”

The Attorney General supported the form of orders 1 and 2 propounded by the plaintiffs.

3 The orders that I propose to make are as follows:

1 Declare that the property referred to in Schedule A hereto (“the trust property”) was prior to the transfer of the legal titles to the sixth defendant held upon charitable trust to permit the trust property to be used by the Macedonian Orthodox Church St Petka Rockdale NSW Australia as a site for a church of the Macedonian Orthodox Religion and for other buildings and activities concerned with or ancillary to the encouragement practice and promotion of the Macedonian Orthodox Religion (“the trust”).

2 Declare that in accordance with the terms of the trust and in the events which have happened the trustee is bound to permit the sixth defendant to use the trust property as a site for a church of the Macedonian Orthodox Religion and for other buildings and activities concerned with or ancillary to the encouragement practice and promotion of the Macedonian Orthodox Religion.

4 This is closer to the version propounded by the defendants than it is to the version propounded by the plaintiffs and supported by the Attorney General. The reasons that I have preferred the defendants’ approach as more appropriate are that it provides for the separate declaration of the terms of the trust at its inception and their incidence as at the present time (both of which were in contention among the parties) and more adequately reflects the dual role which it is my view (as expressed in my judgment) that the sixth defendant has in relation to the trust property. This is best encapsulated by the two-stage declarations propounded by the defendants. The first declaration declares the terms of the trust as created and makes plain that the trust property was held by the original trustees to be used for the purpose stipulated in the declaration of trust by the unincorporated association which was originally to conduct the new church. The second declaration makes plain that events have occurred whereby the sixth defendant now has a dual role: it has become (by transfer of the trust property to it) the trustee and is now also (by virtue of the incorporation of the unincorporated association under the Incorporation Act) the body which is to be permitted to use the trust property for the purpose stipulated in the trust deed. This is in accordance with and spells out my decision as embodied in paragraphs [86], [87] and [91] of my judgment.

5 I have already indicated that I do not propose to deal with the costs of the proceedings to date in isolation and that all questions of costs not already determined are reserved. There will therefore be orders in accordance with short minutes initialled by me and placed with the papers.

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Last Modified: 12/01/2003