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.”

“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…

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.

Continue reading Metropolitan Petar v Mitreski

Details

AGLC: Metropolitan Petar v Mitreski [2003] NSWSC 1089
Case: [2003] NSWSC 1089
Decision Date: 26 November 2003

CaseChat Overview and Summary

Metropolitan Petar and Mitreski were the parties involved in the dispute that was brought before the court. The matter revolved around declarations that were sought by the parties in relation to a charitable trust. The court was required to determine the appropriate form of relief and exercise its discretion in light of the particular circumstances of the case.

The central legal issues that the court had to decide related to the appropriate form of declarations that should be made in relation to the charitable trust. The court needed to consider the issues in contention between the parties and ensure that the declarations reflected these matters. The court also had to weigh the potential benefits and drawbacks of making the declarations in question.

In reaching its decision, the court considered the nature of the dispute and the issues in contention between the parties. It was noted that the declarations sought by the parties should accurately reflect the matters that were in dispute. The court also took into account the potential consequences of making the declarations, including the impact on the administration of the trust and the rights of the beneficiaries. Ultimately, the court exercised its discretion and made the declarations that it considered appropriate in the circumstances.

The court ordered that the declarations should be made in a form that accurately reflected the issues in contention between the parties. The court also noted that declarations should be made in a manner that is consistent with the principles of equity and justice. The court's decision provides guidance on the appropriate form of relief in cases involving charitable trusts and the exercise of discretion in making declarations.

Orders