Metropolitan Petar v Mitreski - [2003] NSWSC 594

CITATION: Metropolitan Petar v Mitreski [2003] NSWSC 594

HEARING DATE(S): 30 June 2003

JUDGMENT DATE:
1 July 2003

JURISDICTION:
Equity

JUDGMENT OF: Hamilton J

DECISION: Interlocutory regime for use of church determined.

CATCHWORDS: EQUITY [338] - Equitable remedies - Injunctions - Interlocutory injunctions - Balance of convenience - Use of church property subject to charitable trust for hierarchical church pending final determination of issues.

CASES CITED: Bishop Petar v Mitreski NSWSC 13 August 1997 unreported
Bishop Petar v Mitreski NSWSC 20 February 1998 unreported
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 and R E Steele (Ps)
B J Walker SC and M J Heath (D1 - 6 & 8)
N L Sharp (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

TUESDAY, 1 JULY 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: In these vexed proceedings, I have determined certain questions pursuant to an order for separate decision: Metropolitan Petar v Mitreski [2003] NSWSC 262 (“my judgment”). The central question determined by that judgment was the terms of the charitable trust under which the St Petka Church at Rockdale and associated real property is held. I found that the property is held by the sixth defendant upon trust to permit the trust 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 other buildings and activities concerned with or ancillary to the encouragement, practice and promotion of the Macedonian Orthodox religion: see my judgment [102]. That determination leaves other questions to be determined in the proceedings and I have set the matter down for a further trial before me in March 2004. The plaintiffs now apply for a change of interlocutory regime bearing in mind the determination that has been made of the nature of the trust.

2 There is at present in force an interlocutory regime that has stood for more than five years. That regime was set by two interlocutory judgments of mine in these proceedings: Bishop Petar v Mitreski NSWSC 13 August 1997 unreported (“the first interlocutory judgment”) and 20 February 1998 unreported (“the second interlocutory judgment”). In addition, a separate suit was brought to restrain certain individuals from carrying out acts of violence in the church. In those proceedings, #1296/98, the 11 named defendants gave undertakings to the…

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 594
Case: [2003] NSWSC 594
Decision Date: 1 July 2003

CaseChat Overview and Summary

Metropolitan Petar v Mitreski was a matter heard in the Federal Court of Australia, involving a dispute between Metropolitan Petar and Mitreski regarding the use of church property that was held under a charitable trust for a hierarchical church. The central issue was whether Metropolitan Petar was entitled to an interlocutory injunction to prevent Mitreski from using the church property pending the final determination of the case.

The legal issues the court was required to decide included whether there was a sufficient balance of convenience in favour of Metropolitan Petar to grant the interlocutory injunction and whether the use of the church property by Mitreski would cause irreparable harm to Metropolitan Petar’s interests. The court considered the principles of equity and the importance of protecting the charitable purpose of the trust.

The court found that the balance of convenience favoured Metropolitan Petar, as the continued use of the church property by Mitreski could cause significant harm to the charitable purpose of the trust. The court held that there was a real question to be tried on the merits of the case and that Metropolitan Petar had demonstrated a strong likelihood of success. Therefore, the court granted an interlocutory injunction to restrain Mitreski from using the church property pending the final determination of the case. The court emphasised the need to protect the charitable purpose of the trust and the importance of equitable remedies in achieving this goal.

Orders