Metropolitan Petar v Mitreski - [2003] NSWSC 262

No judgment structure available for this case.

CITATION: Metropolitan Petar v Mitreski [2003] NSWSC 262

HEARING DATE(S): 12, 14 & 15, 19 - 23 and 26 August, 4 September, 30 October and 5 November 2002 and 13 March 2003

JUDGMENT DATE:
4 April 2003

JURISDICTION:
Equity

JUDGMENT OF: Hamilton J

DECISION: Trust of land to permit it to be used by a specified body (being an unincorporated association) as a site for a church of the Macedonian Orthodox Religion held valid as a charitable trust and its terms determined. Land held not to have been freed of trust by vesting in incorporated association upon its incorporation.

CATCHWORDS: ASSOCIATIONS AND CLUBS [49] - Incorporated associations - Matters relating to incorporation - Effect of incorporation - Vesting of property - Whether property vested is freed from charitable trust on which it was previously held - CHARITIES [80] - Charitable gifts and trust - Validity and practicability - Property subject to charitable trust - Other matters - Property held to permit its use by a particular entity as a church of the Macedonian Orthodox Religion - Validity and terms of trust - EQUITY [111] - Trusts and trustees - Express trusts constituted inter vivos - Declaration of trust - Necessity for intention - Ascertainment of intention - Principles applicable - STATUTES [21] - Acts of Parliament - Interpretation - Rules of construction - Where meaning ambiguous or uncertain - Presumptions as to legislative intention - Not to alienate vested proprietary interests or subvert common law or equitable rights - General principle - Necessity for clear language.

LEGISLATION CITED: Associations Incorporation Act 1984 s 15(3), Schedule 2 clauses 1 & 2(1) & (2), Schedule 3 clause 6
Associations Incorporation (Amendment) Act 1992
Charitable Collections Act 1934

CASES CITED: Attorney-General v Gould (1860) 28 Beav 485; 54 ER 452
Attorney-General v Wylde (1948) 48 SR(NSW) 366
Attorney-General ex rel Elisha v Holy Apostolic and Catholic Church of the East (Assyrian) Australia NSW Parish Association (1989) 37 NSWLR 293
Attorney-General for New South Wales v The Perpetual Trustee Company (Limited) (1940) 63 CLR 209
Attorney General for the State of Queensland (at the relation of Nye) v The Corporation of the Lesser Chapter of the Cathedral Church of Brisbane (1977) 136 CLR 353
Bacon v Pianta (1966) 114 CLR 634
Balog v Independent Commission against Corruption (1990) 169 CLR 625
Bank of Credit and Commerce International SA v Ali [2002] 1 AC 251
Bishop of Natal v Gladstone (1866) LR 3 Eq 1
Bishop of Newcastle v Walker (1898) 14 WN(NSW) 191
Bismark Range (Lucknow) Gold Exploration NL v Wentworth (Lucknow) Gold Fields NL (1935) 35 SR(NSW) 400
Brooks v NSW Grains Board [2002] NSWSC 1049
C J Burland Pty Ltd v Metropolitan Meat Industry Board (1968) 120 CLR 400
Charter Reinsurance Co v Fagan [1997] AC 313
Clissold v Perry (1904) 1 CLR 363
Codelfa Construction Proprietary Limited v State Rail Authority of New South Wales (1982) 149 CLR 337
Dragelevich v Rajsich 263 NE (2d) 778 (1970)
General Assembly of Free Church of Scotland v Lord Overtoun [1904] AC 515
HIH Superannuation [2003] NSWSC 65
His Grace Metropolitan Petar v Aco Kostovski; Alexander v Branov VSC Byrne J 27 October 1997 unreported
Holy Apostolic & Catholic Church of the East (Assyrian) Australia NSW Parish Association v Attorney-General (NSW) ex rel Elisha (1989) 18 NSWLR 291
In re Gulbenkian's Settlements [1970] AC 508
In re Moroney; Maguire v Reilly (1939) 39 SR(NSW) 249
In re Vernon's Will Trusts [1972] Ch 300
Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896
Liverpool and District Hospital for Diseases of the Heart v Attorney-General [1981] Ch 193
McCracken v Attorney-General for Victoria [1995] 1 VR 67
Mannai Investment Co Ltd v Eagle Star Assurance Co Ltd [1997] AC 749
Minister for Lands and Forests v McPherson (1991) 22 NSWLR 687
New York Annual Conference of the United Methodist Church v Fisher 438 A (2d) 62 (1980)
Potter v Minahan (1908) 7 CLR 277
Prenn v Simmonds [1971] 1 WLR 1381
Radmanovich v Nedeljkovic (2001) 52 NSWLR 641
Reardon Smith Line v Hansen-Tangen [1976] 1 WLR 989
Roman Catholic Archbishop of Melbourne v Lawlor (1934) 51 CLR 1
Royal Botanic Gardens and Domain Trust v South Sydney City Council (2002) 76 ALJR 436
Wade v New South Wales Rutile Mining Co Pty Ltd (1970) 121 CLR 177
Watson v Jones 80 US 679 (1871)
Wylde v Attorney-General for New South Wales (ex rel Ashelford) (1948) 78 CLR 224
Baalman and Wells, Land Titles Office Practice (5th ed, loose leaf) [90.550]
G Dal Pont, Charity Law in Australia and New Zealand (2000) 154 - 157
Ford and Lee, Principles of the Law of Trusts (3rd ed, looseleaf) [2010]
New South Wales Law Reform Commission Report on the Incorporation of Associations, LRC 30 (1982)
Pearce and Geddes, Statutory Interpretation in Australia (5th ed, 2001) [5.15], [5.16], [5.21] - [5.23]

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 T G R Parker (Ps)
B J Walker SC and M J Heath (D1 - 6 & 8)
R Lancaster and 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

FRIDAY, 4 APRIL 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:

TABLE OF CONTENTS

Item Paragraphs

HISTORY OF THE MACEDONIAN ORTHODOX CHURCH
3 – 11

HISTORY OF THE CHURCH OF ST PETKA, ROCKDALE 12 - 40

THE PROCEEDINGS 41 – 47

THE SUBMISSIONS 48 – 60

THE LAW

Charitable Trusts: Some Relevant Principles 61 – 62

Gifts to Unincorporated Associations 63

Construction of Charitable Trusts: Ascertainment of Settlor’s Intention
64 – 65

Charitable Trusts for Churches 66 – 73

The Vesting of Property by the Associations Incorporation Act 1984 74 – 79

Statutory Interpretation: The Presumption against Interference with Vested Interests
80 – 83

CONCLUSIONS

What are the Terms of the Trust? 84 – 91

Whether the Trust is a Valid Charitable Trust 92 – 93

Does the Charitable Trust Still Exist: The Effect of the Incorporation Act
94 – 102

FURTHER PROCEEDINGS 103 – 104

2 This is another case arising out of conflict between a parish and the hierarchy in an Orthodox Church. These are quite common in Australia, as in other countries of the diaspora. The Church in this case is the Macedonian Orthodox Church (“the MOC”). One other such conflict in Australia in the MOC has been tried to judgment by Byrne J in the Supreme Court of Victoria: His Grace Metropolitan Petar v Aco Kostovski; Alexander v Branov VSC 27 October 1997 unreported (“the Melbourne case”). Two recent decisions in New South Wales in similar conflicts are Attorney-General ex rel Elisha v Holy Apostolic and Catholic Church of the East (Assyrian) Australia NSW Parish Association (1989) 37 NSWLR 293 (“the Assyrian Church case”) and Radmanovich v Nedeljkovic (2001) 52 NSWLR 641 (“the Serbian Church case”). Both are decisions of the present Chief Judge of this Division (Young CJ in Eq), the former while his Honour was still a puisne Judge of the Division.

HISTORY OF THE MACEDONIAN ORTHODOX CHURCH

3 The historical facts relating to the MOC, as they appeared in evidence before me, are as follows.

4 Christianity in Macedonia is said to have had its origins from the time of the Apostles. From very early times Christianity developed institutions and an organisational structure to carry on its mission. That structure was hierarchical: that is, believers were organised into parishes, each under the leadership of a priest, and parishes into dioceses, each governed by a bishop. Such an hierarchical organisation existed in what is now Macedonia just as it existed elsewhere in the early Church. The attendance of bishops and other representatives of the Church from what is now Macedonia is recorded at early ecumenical councils of the Church in the time of the Roman Empire.

5 What is now the Republic of Macedonia formed part of the Roman (later Byzantine) Empire. Under the Emperor Justinian I an Archbishopric was established centred on the city of Justiniana Prima in what is now Macedonia. This occurred in 535AD. Subsequently, the structure of the Church in what is now Macedonia and the Archbishopric of Justiniana Prima were disrupted by Slavic invasions. The Archbishopric was re- established by St Clement the Wonderworker in Ohrid at about the end of the 9th Century AD. Thereafter the Archbishopric was known as the Archbishopric of Ohrid, although it was referred to by its old name of Justiniana Prima as well. The Archbishopric of Ohrid endured until 1767, when the Ottoman Sultan abolished it. From that time forward, control over the Church in what is now Macedonia was ultimately exercised by the Patriarch of Constantinople.

6 In 1879, at the Congress of Berlin, what is now Serbia became an independent country. An independent Serbian Orthodox Church was established, under a Patriarch whose seat was (and is) at Belgrade. At that time, what is now Macedonia was still part of the Ottoman Empire. In 1912 and 1913, there were two wars between the Ottoman Empire, Greece, Bulgaria and Serbia. Following those wars, most of what is now Macedonia was annexed to Serbia. Following the First World War, the borders were again adjusted and Macedonia became a province of the Kingdom of Yugoslavia. At that time, jurisdiction over the Church in Macedonia was transferred from the Patriarch of Constantinople to the Serbian Orthodox Patriarch at Belgrade. Thereafter, the Church in Macedonia came under the jurisdiction of the Serbian Orthodox Church.

7 In 1941, Yugoslavia was invaded by the Axis powers, defeated and occupied. Jurisdiction over the Church in Macedonia was then split between the Archbishop of Albania and the Patriarch of Bulgaria. Most of what is now Macedonia was under the jurisdiction of the Bulgarian Patriarch and the western part of the country was under the jurisdiction of the Archbishop of Albania. These arrangements lasted until 1943 when the defeat of the Axis powers was followed by the withdrawal from Macedonia of the Bulgarian hierarchy. This left no bishops with recognized jurisdiction over the Church in Macedonia. At a conference of priests held in 1943 and again at a Church assembly of the laity held in 1945, it was resolved that the Archbishopric of Ohrid should be re-established. However, this did not occur until 1958. Following the Second World War, Yugoslavia was reorganised under the Communist Government led by Tito. The country was structured as a series of Federal Republics, one of which was Macedonia. The Republic of Macedonia had its own flag and its own official language (Macedonian). It had its own constitution and parliament and its own organs of government, although, for practical purposes, the Communist Party hierarchy in Belgrade controlled them.

8 In 1958, there was a general assembly of delegates representing members of the Church in Macedonia. At that time, Dositej, who was a native Macedonian, was serving as the Vicar Bishop of the Serbian Orthodox Church. He was elected by the assembly as the first Archbishop of the re-established Archbishopric of Ohrid. At the same time, two other bishops were elected. A written constitution was adopted and a church government established, which provided both for canonical and executive government of the affairs of the Church. This government included a Church Court and a Church Legislative Council. These events marked the beginning of the independent autocephalous MOC.

9 The MOC continues to have a hierarchical structure in common with other episcopal Christian Churches. The spiritual head of the MOC is the Archbishop, who is styled the ‘Archbishop of Ohrid and Macedonia’ and whose seat is in Skopje. There are ten dioceses, each administered by a bishop. In Macedonia itself, the MOC has seven dioceses and approximately 2,000 churches and 250 monasteries. The MOC has 24 parishes in Australia and New Zealand. There is a Diocese of the United States of America and Canada. This is governed directly by the Archbishop. There is a Diocese of Europe with its own designated Bishop. The Diocese of Australia was established as a separate Diocese in 1974, although it was under the auspices of the Bishop of America and Canada. The Diocese of Australia had its own ruling committee and other administrative organs. The Diocese was expanded to include New Zealand in 1996.

10 The MOC has a liturgy, which is generally similar to that of other Orthodox Churches, but which has certain distinctive features.

11 The above account is substantially that given by the first plaintiff in an affidavit and has not been disputed.

HISTORY OF THE CHURCH OF ST PETKA, ROCKDALE

12 In 1975 there was at least one church of the MOC in Sydney, being the Church of St Kiril and Metodij in Rosebery. This church was fast becoming inadequate for the growing number of Macedonians in Sydney. There also appears to have been disagreement among many members of the Macedonian community as to the manner in which that church was being conducted. A meeting was held in October 1975 at the Chuck Vagan Restaurant in Rockdale at which there was discussion as to what ought be done. Other meetings followed and, in early 1976, there was negotiation to buy an existing church building on Wollongong Road, Arncliffe. However, at the eleventh hour that church was withdrawn from sale. Thereafter the search was continued and premises were found which were deemed suitable for conversion to a church at 65 Railway Street, Rockdale (“the first property”). The inquiries were being conducted by what was described as “the Initiative Committee for Purchase of a Church in the Area of St George – Rockdale”. On 9 November 1976 Pasko Grbevski, who was a witness before me, wrote a letter as president of the Initiative Committee to the Holy Synod of the MOC, Skopje. That letter contained the following:

“First of all, allow us with this short letter to inform you of our recent activities in line with the opening of our new church in Rockdale – Australia and at the same [sic] to ask you to satisfy our request to start with.

……

The activists of the wider region of Saint [sic] George which encompasses a couple of regions settled with about 12,000 – Macedonians, considering that all the wishes have been ignored by the existent church community, in the last several months have undertaken on their own accord to open a new church, regardless of the reaction by the leadership of the old church in Roseberry [sic].

……

At the last nights’ [sic] meeting of the initiative council in accordance with the conversation with the bishop His Grace Kiril, the following conclusions have been passed:

1 That our church is to be managed only in accordance with the directions i.e. the Constitution of our Macedonian Orthodox Church with a seat in Skopje, R. Macedonia.

2 Several names were proposed as follows: ‘Saint Petka’, ‘Holy Mother’, ‘Saint George’, ‘Saint Nikola’ and ‘Saint Arhangel [sic] Mihail’ from which you, your Grace will choose one and you will bless and name our future Holy Macedonian church in Rockdale.

3 Having in mind that the church will be in our hands until 15th of December this year, our authorities should have in mind our telegram and should sent [sic] a [sic] an eminent and sensible priest immediately who will gather together our people within our future church.

We obediently beg that our initiative to open a new Macedonian church in the region of Rockdale not be taken as a sin of ours. Your blessing will be a priceless remedy for the wounded Macedonian souls of ours, who have waited for so long to have the [sic]God’s temple in this area.

Sending this letter, convinced that all our wholehearted wishes will be accepted, most cordially and most warmly we salute you.”

13 A further meeting was called for 20 November 1976 and there are in evidence two versions of a report prepared on behalf of the Initiative Committee. It is unclear whether this was presented in writing or formed the basis of a speech made at the meeting, but I find that its substance was conveyed to that meeting. Concerning the management and structure of the proposed church that report contained the following:

14 At that meeting, it was decided to proceed with the purchase of the first property and a set of by-laws was adopted (“the by-laws”). Two translations of the by-laws were tendered, one by the plaintiffs and the other by the defendants. Neither was a translation of all the articles. Neither was agreed to be correct. One difference is that the plaintiffs’ translation is of the by-laws as adopted on 20 November 1976. The defendants’ is of the by-laws as subsequently approved by the Holy Synod in Skopje (cf the plaintiffs’ article 64 with the defendants’ article 66; and see [22] below). There are some differences between the two sets of by-laws in the original Macedonian. Some are apparent from the English translations, but it is not clear what all of them are.

15 Taking the plaintiffs’ translation of the by-laws, articles 3 and 4 were as follows:

“ Article 3

All property of the Church ‘St Petka’, both real-estate property and movable assets, are vested in the Church and cannot be transferred to a person or group of people, company or any other institution.

Article 4

The Macedonian Orthodox Church ‘St Petka’ is an integral part of the Macedonian Orthodox Church in Macedonia, and it is under its Canonical Jurisdiction and it is governed by the Holy Bishops Synod of the Macedonian Orthodox Church and the Metropolitan, respectively.”

“ Article 63

These By-laws are passed at a membership Assembly and should be approved by the Holy Synod of the Macedonian Orthodox Church in Macedonia and should be verified by the relevant authorities in Australia.”

“ Article 66

16 On 20 December 1976 Mr Grbevski wrote “To The Macedonian Diocese for Australia, Melbourne, Victoria” a letter commencing in the following fashion:

“Our letter might surprise you and make you ponder because it comes from the other side – unknown to you until this moment. However, we take the liberty to confess in front of you as our pastor and representative of the Holy Macedonian Archbishopric, to ask for the necessary advice, directions and certainly sincere help.”

“9 Although our Committee has not familiarised itself with the new By-Laws, which is [sic] being reviewed by the Church Management Committees, at the first Foundation General Meeting which took place on 20th November 1977 [sic] the new By-Laws were put to vote. The attendees had to decide which By-Laws we would use. All the attendees, around 250 countrymen, declared that they are in favour to work as set in the Constitution of our Archbishopric in Socialist Republic of Macedonia, except for several attendees – representative of Roseberry [sic] Church, led by their Secretary Mito Marinovski. …”

17 On 23 December 1976 contracts were exchanged for the purchase of the first property for the price of $40,000.

18 On 15 February 1977 Mr Grbevski and Jone Belcheff, the then secretary of the committee and also a witness before me, addressed a letter “To Metropolitan for Canada, America and Australia The Most Reverend Kiril” which contained the following:

“At the General Meeting of the Macedonians held on 20th November 1976 an Initiative Committee was elected and authorised to find as soon as possible an appropriate place for a Macedonian Church. With the knowledge of the people that Committee bought the building on 65 Railway Street, Rockdale. All the preparations for the adaptation of the building in a church ambience have been completed. It was voted for the By-Laws complying with the Constitution of the Macedonian Orthodox Church and the Statute of the Macedonian Diocese for Australia, in Melbourne, Victoria, and it (By-Laws) was approved.

Therefore, Your Lordship, the Initiative Committee, in the name of the Macedonians in Rockdale and its vicinity would like to ask you to give a blessing to the elected Initiative Church Committee. We also would like to ask you to approve our By-Laws so that we could register at the appropriate Authorities as ‘Saint Petka’ Macedonian Church Community, Rockdale, which would work according to the Constitution of the Macedonian Orthodox Church, the Diocese Statute and these By-Laws which you would approve.”

19 It was in this context that the deed of trust, which is the central document in this case, was executed on 8 March 1977 and subsequently registered No 550 Book 3271 (‘the deed of trust”). The deed of trust was expressed to be between Mr Grbevski, Mr Belcheff and three other gentlemen named as “the appointors” and John Sergius Peetz, who was by now acting as the solicitor for the group and who was described as “the Trustee”. The deed of trust contained the following recitals:

“A The appointors are the founder members of a religious group to be organised and known as ‘The Macedonian Orthodox Church St Petka Rockdale NSW Australia’ (hereinafter called ‘the proposed beneficiary’).

B It is intended that certain real estate premises and property more particularly described in the schedule below (hereinafter called ‘the trust property’) be purchased for use by the proposed beneficiary.

C Certain delays are anticipated in the organisation of the proposed beneficiary.

D The appointors have requested the trustee to acquire the trust property on behalf of the proposed beneficiary.”

1 T

……

8 T

……

12 T

13 U

JOHN SERGIUS PEETZ

(b) have the power at any time by resolution to remove any trustee or trustees or appoint new trustees up to a total of 5 trustees.”

20 On 28 March 1977 the vendor’s solicitor served a notice to complete specifying 11 April 1977 as the day for completion and completion of the purchase of the first property did duly take place on or before that day, probably on 5 April 1977. Immediately after completion of the purchase demolition work and then construction was carried out on the first property. Its progress is recorded in loving detail in the Souvenir Booklet, to which I shall shortly refer: see [24] below.

21 On 7 April 1977 Mr Peetz wrote to the Secretary, Macedonian Orthodox Church St Petka, Rockdale, to report on the settlement of the purchase. He stated in that letter that the “Constitution has been drawn as well as the Trust Deed and we note you hold copies of both documents”. He stated that both documents should be put to a meeting for adoption as soon as possible. He confirmed that he was proceeding with the application to register the organisation under the Charitable Collections Act 1934 (“the Charitable Collections Act”), but concluded with a note of very recent telephone instructions to hold back that registration pending possible further amendments to the Constitution. Whilst there is no positive identification of the document referred to as the “Constitution” in this letter, the inference I draw is that it was the Constitution as adopted on 28 October 1977, with or without some amendment as foreshadowed; that Constitution was in existence in some form on 7 April 1977.

22 On 9 May 1977 Messrs Grbevski and Belcheff wrote again to his Grace Metropolitan Kiril in Skopje asking for approval of the by-laws. The request was probably unnecessary because the by-laws were approved by a decision of the Holy Synod of the MOC at a meeting on 10 May 1977, which made the following decision:

”The newly formed Macedonian Church Community ‘St Petka’ – Rockdale – Sydney, to be accepted under the spiritual jurisdiction of the Holy Macedonian Orthodox Church – The Macedonian Archdiocese in Skopje.

We approve of the committee of Rockdale as a managing committee of the Church ‘St Petka’ who will deal and follow the By-laws of the Church constructed in accordance with the spirit of the Constitution of the Macedonian Orthodox Church, its legal and Canonical norms and regulations and being accepted as such by the Holy Sinod [sic].”

23 A number of the people who were present at the inception of the new church and who, indeed, worked physically on the construction of the building have given evidence before me. To a large degree the evidence has gone to the question of the intent with which the trust was initially created. I shall deal below with the degree to which in the circumstances of this case their evidence can be taken into account for this purpose. Their evidence also goes to the history of events at the time. I do not intend any disrespect to any of the gentlemen who gave evidence when I say that, in general terms, I have preferred the evidence of contemporaneous or near contemporaneous documents where their accounts conflict with those documents. The reason for this is that the events occurred some 25 years ago. Memories are fallible. The issues in this case quite naturally raise strong emotions and those emotions tend to have their effect on the quality of recollection.

24 Fortunately, a number of significant documents are available from those times, more, indeed, as will appear below, than have been put into evidence surrounding later events, such as the incorporation of the incorporated association which is the sixth defendant,. One document that has helped to fill in gaps is a document which was prepared for the first anniversary of the new church, which was celebrated on 20 November 1977, being the first anniversary of the meeting on 20 November 1976 recounted in [13] and [14] above. It was a long historical document (“the Souvenir Booklet”) prepared by Mr Grbevski and Mr Belcheff, who became the first president and secretary of the church committee. Both of those gentlemen gave evidence before me, so were available for cross examination concerning any material in the Souvenir Booklet, although it was prepared so long ago. The events recounted in the document were no more than a year or two old when the Souvenir Booklet was written. Both gentlemen were intimately involved in the various events recounted in the Souvenir Booklet. I regard the account of events in the Souvenir Booklet as more accurate than any that can now be given by the participants.

25 The main motivation for the establishment of the new church is set out as follows in the Souvenir Booklet:

“EVEN THOUGH WITH THE EXISTENCE OF THE MOC SAINT KIRIL AND METODI, ROSEBERY, SYDNEY, A GROUP OF ACTIVIST [sic] FROM THE AREA OF ERSKINVILLE [sic], NEWTOWN, ST.PETERS [sic], SYDNEHAM [sic], TEMPE, ARNCLIFFE, BANKSIA, ROCKDALE, KOGARAH, BEXLEY, CARLTON, HURSTVILLE, AND OTHER CLOSE REGIONS WORKED AND STRIVE [sic] SO THAT A MOC BE OPENED IN THESE PARTS WHICH WILL BE A SECOND MOC AND WITHIN REACH OF THE PARISHIONERS IN SOME CASES WITHOUT THE USE OF TRANSPORT. IT IS BECAUSE THESE REGIONS ARE POPULATED BY MOST MACEDONIANS WHERE AS [sic] THE REGION OF ROSEBERY IS FAIRLY FAR AWAY FROM THE MACEDONIAN POPULATION, AND IT IS NOT WITHIN ANY OF THE TRANSPORT ROUTES. IT CAN EASILY BE SAID THAT THE REASON FOR THE OPPOSITION TO OPEN A NEW CHURCH IN THESE PARTS IS THE COMMUNITY COUNCIL OF THE MOC ‘SAINT KIRIL AND METODI’ IN ROSEBERY”

“NEXT WEEK 14TH JUNE 1975 IN THE HOUSE OF PETRE KIKIREKOV, THE FIRST MEETING OF THE ACTIVISTS WAS HELD, AFTER A WIDE DISCUSSION OF ALL THOSE PRESENT, AN [sic] ‘BOARD OF INITIATIVE’ WAS FORMED WITH THE TASK OF OPENING A NEW MACEDONIAN CHURCH. THE ‘BOARD OF INITIATIVE’ COMPRISED OF: BORIS LUSIPOSKI, ILIJA IVANOVSKI, PETRE KIKIREKOV, MISKO GEORGIEVSKI, JOVAN KOKALOVSKI, PASKO GRBEVSKI, JONE BELCHEV, ACO STANKOSKI AND TODE BASEVSKI.”

26 The Souvenir Booklet sets out an “act of remembrance” which was deposited in the foundations of the new church while concrete was being poured on 29 April 1977. That act of remembrance recorded concerning the meeting of 20 November 1976:

“AT THE MEETING THE CONSTITUTION OF THE MACEDONIAN ORTHODOX CHURCH FROM THE SOCIALIST REPUBLIC OF MACEDONIAN [sic] WAS ACCEPTED AND DECIDED THAT THE COMMUNITY COUNCIL WORK IN ACCORDANCE WITH IT AND THERE SHOULD BE NO DIVERTING FROM IT.”

27 The Souvenir Booklet also records the new church’s negotiations with the hierarchy in Macedonia to obtain the services of a priest. The first service was held in the church on 7 August 1977. By dint, it would seem, of almost Herculean efforts, the building was completed by that time. However, no new priest had yet arrived and there were difficulties in obtaining a priest to celebrate services in the church in the meantime. The new priest finally arrived on 20 November 1977, coincidentally the date of the anniversary.

28 On 21 October 1977 application was made on behalf of the “Macedonian Orthodox Church St Petka Rockdale NSW Australia” for registration under the Charitable Collections Act. That application stated that it was accompanied by “a certified copy of the rules governing the conduct of the affairs of the charity”. There is little doubt, and I find, that what was forwarded with that to the then Chief Secretary’s Department was a copy of the Constitution which was adopted on 28 October 1977: see [31] and [32] below.

29 On 28 October 1977 there was a meeting of the “board” of the unincorporated association which, in the words of the Souvenir Booklet, decided as follows:

“IN ACCORDANCE WITH THE DECISION OF THE BOARD, HANDED DOWN AT ITS MEETING ON 28.10.1977, THE PROPOSED ANNUAL GENERAL MEETING FOR THE ELECTION OF A NEW BOARD IS POSTPONED TO NEXT YEAR. THE DECISION WAS BROUGHT DOWN BEARING IN MIND THAT THE CHURCH HAS NOT FULLY BECOME OPERATIONAL, THERE IS NO PRIEST, AND IN ORDER TO FINALISE SOME WORK, AS WELL AS TO ASCERTAIN THAT THE LOANS TOWARDS OUR MEMBERS ARE PAID OFF.”

30 I infer that it was also at that meeting that the following occurred, again as recorded in the Souvenir Booklet:

“OUR BOARD, ACCORDING TO THE LAWS OF AUSTRALIA, HAS ELECTED FROM THE MIDST OF THE BOARD, TEN TRUSTWORTHY MEMBERS, OR AS THEY ARE CALLED HERE IN AUSTRALIA ‘TRUSTEES’, WHO WILL CARE ABOUT ENFORCING THE ELECTED [sic] CONSTITUTION, AND THOSE SAME TRUSTEES CAN BE CHANGED AS IS NOT THE CASE WITH FOUNDATION MEMBERS … THOSE ARE THE PRINCIPLES OF THE BOARD OF ROCKDALE EQUALITY AND DEMOCRACY.”

31 There are no minutes of that meeting in evidence but its business is recorded in a declaration of trust made by Mr Peetz thereafter:

“A By Deed of Conveyance dated 5th April, 1977 I became seised in the land described hereinafter in the Schedule of Land for an estate in fee simple.

B By Deed of Trust 8th March, 1977 I acquired the said land on trust for the Macedonian Orthodox Church St. Petka Rockdale N.S.W. Australia.

PETER GRBEVSKI

JOHN BELCHEFF

YONCE KOKALEVSKI

TANAS RISTEVSKI

TANAS LOZANOVSKI

GEORGE SIMONOVSKI

ILO VELGANOVSKI

ILO IVANOVSKI

MITRE DUPESOVSKI

TODE BASEVSKI

D At the said meeting a proper resolution was passed to effect the appropriate steps to have the new Trustees noted on the security documentation relating to the church property.”

32 Mr Grbevski also that day certified as the original Constitution of “the Macedonian Church of St Petka Rockdale NSW Australia” a document which was subsequently registered in the general register of deeds (“the Constitution”). Whether this had undergone any amendment since it was referred to in Mr Peetz’ letter of 7 April 1977 (see [21] above) is not clear. The Constitution contained the following relevant provisions. Clause 3 contained objects including:

“A Generally, to encourage, practice and promote the Macedonian Christian Orthodox Religion and the activities concerned with or ancillary to the said Religion, and more particularly to

B Remain an integral part of the Macedonian Orthodox Church of Macedonia in Yugoslavia and wherever reasonably possible abide with the Canons of that Church.

C To educate members of the Church in the spirit of Orthodox Christianity.

D To maintain the glorious tradition of the Macedonian Orthodox Church in Macedonia Yugoslavia.”

33 Mr Peetz subsequently transferred to the trustees as tenants in common his registered interest under the Real Property Act 1900 (“the RPA”) in the first property.

34 Subsequently to the first property, five more pieces of real property have been acquired for the Church of St Petka Rockdale. They are: 7 – 10 Firth Street, Arncliffe (“the Arncliffe property”), 66 Railway Street, Rockdale (“the second Rockdale property”), 2/64 Railway Street, Rockdale (“the first unit”), 1/64 Railway Street, Rockdale (“the second unit”), and 5/64 Railway Street, Rockdale (“the third unit”). When I say five more pieces of “real property”, I use popular rather than legal usage. In fact, the Arncliffe property and the second Rockdale property are held under the provisions of the RPA, the title to the second Rockdale property having been consolidated with that of the first property. But the interest which is held in the three home units is not in law real property, the units being in a block of units which is the subject of company title. The holding in those cases is the holding of shares in Gloucester Home Units Pty Limited (“the unit company”). Details of the time of acquisition of those properties and the manner in which they were held after acquisition is set out in a document which was put into evidence and which is reproduced in a schedule (“Schedule A”) to this judgment. In the case of all three titles under the RPA the property was registered in the individual names of trustees. In the case of the first unit the share certificate was in the name of “The Trustees for the Macedonian Church St Petka”; in the case of the second unit and the third unit the share certificates were issued in the name of “Macedonian Orthodox Church St Petka, Rockdale”. In respect of only one of the properties acquired subsequent to the first property is there in evidence any separate declaration of trust. That is in respect of the property secondly acquired, namely, the Arncliffe property. That was a declaration dated 15 August 1978 (“the Arncliffe declaration of trust”) by which John Belcheff and Tode Basevski, therein described as the trustees, recited that “The trustees of the Macedonian Orthodox Church St Petka Rockdale NSW Australia (hereafter called the ‘Church Trust’) have decided to purchase” the Arncliffe property and declared:

“1 That the funds provided for the purchase of the property at [sic] all been provided by the Church Trust.

2 That they will hold the property in absolute trust for the Church Trust.

3 That upon request by the Church Trust they will transfer the legal estate to the Church Trust in accordance with its constitution and will co-operate and sign all documents necessary to effect such transfer or other legitimate authorised and approved dealing with the property.

4 That in the meantime they will act in accordance with the Constitution of the Macedonian Orthodox Church St Petka Rockdale NSW Australia, its rules and regulations.”

35 Other than the acquisition of the further properties, between late 1977 and 1992 there does not appear to be evidence of any event material to the present proceedings. There is no substantial evidence to indicate whether during that time the unincorporated association operated under the original by-laws or the by-laws approved in Macedonia or the Constitution adopted on 28 October 1977. Unlike the situation in 1976 and 1977 where, as can be seen, there is considerable documentation of the events and meetings which took place, there is only the barest evidence of how the constitutional change came about in 1992 that led to and arose from the incorporation of the sixth defendant (“the incorporated association”) under the Associations Incorporation Act 1984 (“the Incorporation Act”).

36 Indeed, the only documents relating to that incorporation are a copy of the resolutions for incorporation and a partial copy of the application for incorporation (lacking the constitution and the list of property said to have been annexed to it). The resolutions are certified to have been passed at an extraordinary meeting of the unincorporated association held on 2 March 1992 and are as follows:

“1 That the Executive Council is authorised and directed to seek registration of the Macedonian Orthodox Church, St Petka, under the Associations Incorporation Act as an incorporated association to be known as

‘Macedonian Orthodox Community
Church St. Petka’

2 To accept and adopt a new constitution being the Constitution displayed prior to this Extraordinary General Meeting at the Community Church Hall and identified by the signatures of the members of the Executive Council.

3 That the trustees are hereby authorised and directed upon the proper registration of the new constitution and upon proper registration as an incorporated association to sign all such documents to transfer the assets and real estate held in their name on behalf of the Macedonian Orthodox Church St Petka Rockdale to the Macedonian Orthodox Community Church St Petka as an incorporated association.

4 The operations, funtions [sic] and assets as well as liabilities incurred on behalf of the Macedonian Orthodox Church St Petka Rockdale Community, shall upon the registration as an incorporated association known as Macedonian Orthodox Community Church St Petka be transferred to or accepted by the new association.”

37 In the absence of the annexures referred to, the application does not contain a great deal of useful information. It does state that the objects of the proposed incorporated association are “A, E, G, & H AS SET OUT IN MORE DETAIL IN THE CONSTITUTION FOR THE CHURCH ANNEXED HERETO”. There is adjacent to that reference to the constitution a handwritten note “(20 PAGES)”. The Constitution of 28 October 1977 does contain objects A, E, G and H and is of 20 pages, but one could not safely infer that the initial constitution of the incorporated association was identical with the Constitution. The application contained a statement that the “proposed incorporated association will not be the trustee of any trusts”.

38 The other document that is in evidence concerning the constitution of the incorporated association is a notice of alteration of rules registered with the Department of Consumer Affairs on 11 December 1992. It attaches a 23 page constitution said to have been adopted by special resolution at a general meeting of the incorporated association held on 28 September 1992. There is no dispute that this is the current constitution of the incorporated association. It repeats the objects in the Constitution, including those set out in [32]. Its provisions as to membership, voting at general meetings and the Council substantially repeat those of the Constitution (see clauses 8, 18 and 21), as do its provisions as to amendment and disposal of assets on dissolution (see clauses 32 and 31).

39 Thereafter the incorporated association took steps to have itself recorded as the holder of all the real property in this case. In respect of the first property (with which the second Rockdale property was by then consolidated), it lodged an application in the prescribed form dated 29 May 1992 for it to be recorded on the title as the registered proprietor. That was supported by a certificate of public officer as to vesting of property which certified that the first property:

“… was held by YONE BELCHEFF, GEORGE SIMONOVSKI, PETAR GRBEVSKI, ILJA VELJANOVSKI, ILJA IVANOVSKI, DIMITAR DUPESHOVSKI, ATANAS RISTOVSKI AND METODI BASEVSKI as joint tenants of c/- 65 Railway Street, Rockdale. [sic] in trust or otherwise, for or on behalf of MACEDONIAN ORTHODOX CHURCH ST PETKA (which was a former association of MACEDONIAN ORTHODOX COMMUNITY CHURCH ST PETKA Incorporated) or for its objects.”

40 In 1997 disputes broke out between the Diocesan Bishop and the governing body of the incorporated association. It is not necessary to spell them out in detail for the purposes of this judgment, but they included issues about the appointment of the parish priest and the control of property and money.

THE PROCEEDINGS

41 The first plaintiff is described in the further amended statement of claim (“the statement of claim“) as “His Eminence Petar, the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand”. His Eminence has since been elevated to the status of a Metropolitan. The second plaintiff is Father Mitko Mitrev, the parish priest appointed by the first plaintiff but not accepted by the parish. The first to fifth defendants were members of the Executive Council of the sixth defendant, the incorporated association. The seventh defendant has been dismissed from the proceedings. The eighth defendant has acted as priest of the parish, although not so appointed by the first plaintiff. The first to sixth and eighth defendants are referred to in this judgment as “the defendants”. The ninth defendant is the Attorney General for the State of New South Wales, who was by his consent joined as a defendant to give proper constitution to a suit concerning the existence and terms of a charitable trust. He is referred to in this judgment as “the Attorney General”.

42 The statement of claim in pars 1 to 15 substantially outlines the facts which have been set out above. Paragraph 16 charges that the trustees by reason of the foregoing held the real property (including the units) and “any other property held on behalf of the Parish Organisation … upon trust for the purposes of the Macedonian Orthodox Church“. It is alleged that that was the situation up to the time of transfers to the sixth defendant alleged in par 18 of the statement of claim. By par 17 the statement of claim alleges the incorporation of the sixth defendant and par 18 alleges that following that incorporation “the Parish Property was transferred to the Association at nil consideration”.

43 In their defence the defendants deal with par 16 of the statement of claim as follows:

“16.1 The Defendants deny paragraph 16 of the FASC, further, the Trustees held all the assets of the unincorporated association, including 65 Railway Street, 66 Railway Street and the shares referred to in paragraph 15 of the FASC (the ‘Assets’) in accordance with the constitution of the unincorporated association until it was incorporated on 27 April 1992 under the provisions of the Associations Incorporation Act 1984 (the ‘Act’) when the Assets, as to both the legal and the equitable estate, vested in the sixth defendant pursuant to Schedule 2 section 2(1)(a) of the Act which then held the Assets pursuant to its objects and free of any trust.

16.2 In the alternative, if the Trustees held the property referred to in paragraph 16 of the FASC on trust for the purposes of the Macedonian Orthodox Church which is denied, the terms of such trust were subject to the terms of the constitution of the unincorporated association or in the alternative were terms that were consistent with and subject to the powers, objects and purposes of the unincorporated association.”

44 Paragraph 19 of the statement of claim was as follows:

“By reason of the foregoing, upon transfer of the Parish Property to the Association, the Association continued to hold the Parish Property upon trust for the purposes of the Macedonian Orthodox Church.”

45 In answer to par 19 the defendants pleaded as follows:

“19.1 The Defendants deny paragraph 19 of the FASC, further the unincorporated association's application for incorporation specifically stated under the heading ‘Particulars of Trusts’ being item 9 on the form ‘Application for Incorporation of Association’ that ‘The proposed incorporated association will not be the trustee of any trusts’.

46 These paragraphs encapsulate the thrust of the argument that has proceeded before me.

47 The parties asked that I order the separate decision of certain questions. With the trepidation usual upon the making of such orders I decided to permit the trial to proceed on that basis. On 23 August 2002 I made the following order in that regard:

THE SUBMISSIONS

48 The plaintiffs contend that the questions should be answered as follows:

(ii) No

49 The defendants ask that the questions be answered in a fashion which would support the following declarations which they seek:

“Declare that Sixth defendant holds the real property set out in the schedule marked ‘A’ to these orders and any personalty in its name for the ‘Objects’ set out in the Constitution of the Sixth defendant contained in Exhibit 2 and subject to:

(i) any lawful amendment; and
(ii) the obligations and requirements of management and administration set out in Exhibit 2.

Alternative

In the event that the Court finds a trust in favour of the plaintiffs the sixth defendant seeks the following declaration:

Declare that the Sixth defendant holds the real property set out in the schedule marked ‘A’ to these orders and any personalty in its name (‘the property’) on trust (‘the trust’) for the religious and charitable purposes of the Macedonian Orthodox Church subject to the rights of members of the sixth defendant to participate in the affairs of the sixth defendant in accordance with and on the terms contained in Exhibit 2.

Order that the mechanical provisions of Exhibit 2 be applied to the management and administration of the trust.

50 The Attorney General submits that the questions should be answered:

(ii) Unnecessary to answer.

(b) Yes. The trust is a valid charitable trust.

51 The plaintiffs submit that the trust was created in the terms of the deed of trust set out in [19] above and that in essence is common ground. The trust is a trust for purposes and not for persons; it is not a trust in favour of the individual members of the parish organisation. This conclusion follows from the terms of the deed itself; the meaning is clear and there is no warrant for looking at surrounding circumstances. However, if the evidence of contemporaneous events is looked at the conclusion is confirmed.

52 Where a new branch of an existing hierarchical church is established outside the mother country, that new branch of the church will be subject to the doctrines and disciplines of the mother church, which will be enforced and recognised (so far as consistent with local law) by the civil courts of the new country. The evidence establishes that the MOC was and is an independent hierarchical church within the Holy Orthodox tradition with its own organs of government, headed by the Archbishop and the Holy Synod, and a distinctive liturgy and ecclesiastical practice. The term in the deed “Macedonian Orthodox Religion” must be equated with the doctrines of the MOC. The legal consequence is that the members of the St Petka Parish are members of the worldwide MOC of which the Metropolitan is the diocesan head and the Archbishop in Skopje is the ultimate head. As members of the MOC they are bound by its doctrines, ordinances, rules and discipline: Bishop of Natal v Gladstone (1866) LR 3 Eq 1 at 35 - 36; Wylde v Attorney-General for New South Wales (ex rel Ashelford) (1948) 78 CLR 224 (“the Red Book case”) per Latham CJ at 258 and Williams J at 298; the Assyrian Church case at 314G - 316C.

53 There can be no question as to whether the trust is one merely for the purposes of the local parish as opposed to the purposes of the MOC. It is quite plain that there is no trust established which could take effect for the benefit of the members personally. It is plain that the trusts are religious trusts and are therefore trusts of a plainly charitable character. No departure from or breach of the terms of the trust can be sanctioned by practice, or by any majority decision, or because it may be considered that some such departure may be more “beneficial” to the public. Any breach of a charitable trust attracts the jurisdiction of the Court to correct the administration of the trust. That occurs where the property of such a trust comes under the control of unauthorised persons or is used for unauthorised purposes.

54 The Arncliffe property is the subject of a separate declaration of trust for the “Church Trust”. The effect of this is that it is held upon the same trust as the first property. The other pieces of property, including the units, in respect of which there is no evidence of a separate declaration of trust are to be taken as acquired upon the same trust as the first property. It is submitted that the subsistence of that trust was not affected by the transfer of the property formally held by the trustees to the incorporated association in 1992.

55 The defendants’ argument is three-fold. In the first place they argue that the trust was not a trust for a purpose but a trust for a beneficiary. The beneficiary was the unincorporated association intended to be formed. They argue that the constitution of the unincorporated association was the Constitution of 28 October 1977 rather than the by-laws adopted on 20 November 1976 or the by-laws as subsequently approved in Skopje. In any event, the original beneficiary has now been transmogrified into the incorporated association which is the sixth defendant. They rely very heavily for this argument upon the use of the word “beneficiary” in the deed of trust. In particular, they emphasise the words contained in recital B that the property was purchased “for use by the proposed beneficiary”.

56 Secondly, they argue that the property was by reason of the incorporation of the incorporated association on 27 April 1992 freed from the incidence of any trust. They refer to the statement in the application for incorporation that the incorporated association would not be the trustee of any trusts. The Peetz trust ceased to exist. The Incorporation Act and the rules under that Act now govern how the property is to be dealt with. The trust had no more work to do. The sixth defendant now “owned the equitable and beneficial interest in the property”. Its use of the property is restricted only by its obligation to deal with the property in accordance with the Incorporation Act and the rules. The property of the former unincorporated association vested in the incorporated association by reason of s 15(3) and subclause 2(1) of Schedule 2 of the Incorporation Act. The only survival of the trust is the obligation to comply with the purposes for which it was created embodied in clause 2(2) of Schedule 2.

57 Thirdly, it is argued that, if there was a trust for a purpose, the purpose was an ethnic purpose or a religious purpose similar to that found in the Serbian Church case by Young CJ in Eq at [177], so that the property belonged to the local church, or a mixture of church, ethnic and recreational purposes. At the least, if there is still a charitable trust, contrary to the defendants’ primary submission, it should be subject to a rider such as Young CJ in Eq imposed in the Serbian Church case, to the effect that the trust was subject to the rights of members of the sixth defendant to participate in the affairs of the sixth defendant according to its rules.

58 The Attorney General says that the clear intent of the trust deed was to create a charitable trust for religious purposes and not a trust for a beneficiary. As to the submission concerning the Incorporation Act, he says that the true intent of the legislation is that all that is vested in the incorporated association on incorporation is the interest which the unincorporated association previously had in the property, not the property itself. He says that, if the words of the statute be unclear, then the charitable trust should not be taken to be destroyed nor the property divested of it, because such a result should not flow from a statute except by clear and unambiguous words. The Attorney General not only says that that is the correct result in this case, but, as the guardian of the public interest in charitable trusts, says that it is of public importance that the Court construe the Incorporation Act as not unnecessarily destroying charitable trusts. The property therefore continues to be held on the pre existing charitable trust.

59 The argument as to the true effect of the Incorporation Act was bedevilled by the fact that there have been in force at material times two different versions of clause 2 of Schedule 2. The case was originally argued before me on the basis agreed among all three sets of parties, including the Attorney-General, that it was the 1984 clause 2 that was operative in relation to this incorporation. The Attorney-General had in his original written submissions contended that the amended clause 2, inserted at the end of 1992, was the relevant provision. However, upon the plaintiffs and the defendants both contending for the relevance of the 1984 clause 2, the Attorney-General relented and agreed that it was the appropriate provision. This was in my view a mistake. In their original submissions before me at the trial, none of the parties referred to clause 6 of Schedule 3 of the Incorporation Act. After I had reserved judgment I drew it to their attention and invited further submissions. All then agreed that it was the 1992 version that should be applied. The defendants and the Attorney General submitted that it should be inferred that the true construction of the 1984 version was the same as the construction which could be more confidently placed on the 1992 version.

60 At the same time, I challenged the parties with the view, which none had put to me, that the trust should be declared in effect in the terms of clause 1 of the deed of trust, namely, “to permit the trust property to be used by the proposed beneficiary as a site for a Church of the Macedonian Orthodox Religion”. The defendants, in final submissions at that late stage, adopted this proposition as their alternative submission and submitted that no Serbian rider is necessary, although they had contended for one in their pleading and in argument at the trial. The plaintiffs in effect agree, but suggest that the appropriate form of the terms in which the trust should be declared is that it was for the relevant parish of the MOC. I also raised with the parties questions as to whether the evidence showed that the trustees of various of the pieces of property were members of the unincorporated association (relevant to the incidence of the 1992 Schedule 2 – see [78] below) and whether the Registrar General acted correctly in registering the sixth defendant as the proprietor of the RPA land.

THE LAW

Charitable Trusts: Some Relevant Principles

61 A charitable trust is a trust for purposes not for persons. As was said by Dixon and Evatt JJ in The Attorney-General for New South Wales v The Perpetual Trustee Company (Limited) (1940) 63 CLR 209 at 222 – 223:

“A charitable trust is a trust for a purpose, not for a person. The objects of ordinary trusts are individuals, either named or answering a description, whether presently or at some future time. To dispose of property for the fulfilment of ends considered beneficial to the community is an entirely different thing from creating equitable estates and interests and limiting them to beneficiaries. In this fundamental distinction sufficient reason may be found for many of the differences in treatment of charitable and ordinary trusts. As a matter of reason, if not of history, it explains the differences between the interpretation placed on declarations or statements of charitable purposes and the construction and effect given to limitations of estates and interests. Estates and interests are limited with a view of creating precise and definite proprietary rights, to the intent that property shall devolve according to the form of the gift and not otherwise. Whatever conditions are expressed or implied in such limitations are therefore as a rule construed as essential to the creation or vesting of the estate or interest unless an intention to the contrary appears. But to interpret charitable trusts in the same manner would be to ignore the conceptions upon which such trusts depend.”

62 Secondly, there can be a valid charitable trust for a limited purpose of an institution such a church. Thus, in Bishop of Newcastle v Walker (1898) 14 WN(NSW) 191 the trust was for “Church of England purposes in the districts of Wallsend and Lambton and Waratah”. It was held in that case that the Attorney General was a necessary party because the trust was generally for Church of England purposes and officials from the locality did not sufficiently represent the trust. But there was no suggestion that the trust in those terms was not valid or was not limited to purposes in those districts. Similarly, in Attorney General for the State of Queensland (at the relation of Nye) v The Corporation of the Lesser Chapter of the Cathedral Church of Brisbane (1977) 136 CLR 353 no doubt was expressed as to the validity of a trust of lands adjoining the cathedral in Brisbane for the purpose of extending the cathedral and as a site for a new hospital. The aim was to prevent undesirable development immediately adjacent to the cathedral. If, as in the Brisbane Cathedral case, the limited purpose becomes impossible of performance, but the trust is valid as a trust for charitable purposes, then a cy pres scheme may be directed.

Gifts to Unincorporated Associations

63 This is a complex area on which there is a considerable literature. However, for present purposes, the law may be taken to be as stated by the High Court (McTiernan, Taylor and Owen JJ) in Bacon v Pianta (1966) 114 CLR 634 at 638:

“The difficulty in the case arises from the fact that The Communist Party of Australia is an unincorporated voluntary association. Cases dealing with the problem which arises from such a circumstance with respect to testamentary dispositions are numerous and some of them are, to say the least, not readily reconcilable. However, in the recent case of Leahy v Attorney-General (NSW) [1959] AC 457; (1959) 101 CLR 611, many of them were referred to and reviewed and the guiding principles were restated. It was accepted that, as had been held in cases such as Bowman v Secular Society [1917] AC 406 and In re Ogden; Brydon v Samuel [1933] Ch 678, a gift to an unincorporated association operates, prima facie, as a gift to the individual members at the time when the bequest becomes operative. However, circumstances may appear which preclude this conclusion; it may appear that the disposition amounts to a trust for the benefit of both present and future members, or, that it is not for the benefit of individuals at all but stands revealed as a trust for some purpose or purposes disclosed by the terms of the bequest. In the former of these two cases the gift may well fail as infringing the rule against perpetuities and, in the latter case, it will fail unless the purpose is, in the legal sense, charitable.”

Construction of Charitable Trusts: Ascertainment of Settlor’s Intention

64 The process of ascertaining the settlor’s intention in relation to a trust was discussed in the following well known passage from the speech of Lord Upjohn in In re Gulbenkian’s Settlements [1970] AC 508 at 522:

“The court, whose task it is to discover that intention, starts by applying the usual canons of construction; words must be given their usual meaning, the clause should be read literally and in accordance with the ordinary rules of grammar. But very frequently, whether it be in wills, settlements or commercial agreements, the application of such fundamental canons leads nowhere, the draftsman has used words wrongly, his sentences border on the illiterate and his grammar may be appalling. It is then the duty of the court by the exercise of its judicial knowledge and experience in the relevant matter, innate common sense and desire to make sense of the settlor’s or parties’ expressed intentions, however, obscure and ambiguous the language that may have been used, to give a reasonable meaning to that language if it can do so without doing complete violence to it.”

“Where there is an unambiguous statement of intention to create a trust leaving no uncertainty as to the terms of the trust, it will not be necessary to look beyond that statement. Where an unambiguous statement of intention is lacking for an alleged trust inter vivos and the trust is unconnected with any bargain that possibly envisaged the creation of a trust, the search for the necessary intention will focus on the conduct and statements of a person, or persons, acting unilaterally. But where the alleged trust would have no significance independently of a bargain it may be appropriate to look for the mutual intention of the parties to the bargain.”

“Usage is only important, in a legal point of view, where there is an absence of any instrument of endowment, or where the words of the instrument produced are ambiguous; in such cases, usage constitutes presumptive evidence of the trusts on which the charity was established, but when the deed of foundation is produced, and is precise, that presumption is excluded.”

65 These principles are a particular reflection of wider principles of construction of legal instruments. The statement of law accepted as definitive in Australia is in the judgment of Mason J in Codelfa Construction Proprietary Limited v State Rail Authority of New South Wales (1982) 149 CLR 337 at 352. It is as follows:

“The true rule is that evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning. Generally speaking facts existing when the contract was made will not be receivable as part of the surrounding circumstances as an aid to construction, unless they were known to both parties, although, as we have seen, if the facts are notorious knowledge of them will be presumed.”

“[39] Two further matters should be noticed. First, reference was made in argument to several decisions of the House of Lords, delivered since Codelfa but without reference to it. Particular reference was made to passages in the speeches of Lord Hoffmann in Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896 at 912 – 913; 1 All ER 98 at 114 – 115, and of Lord Bingham of Cornhill and Lord Hoffmann in Bank of Credit and Commerce International SA v Ali [2001] 2 WLR 735 at 739, 749; [2001] 1 All ER 961 at 965, 975, in which the principles of contractual construction are discussed. It is unnecessary to determine whether their Lordships there took a broader view of the admissible ‘background’ than was taken in Codelfa or, if so, whether those views should be preferred to those of this Court. Until that determination is made by this Court, other Australian courts, if they discern any inconsistency with Codelfa , should continue to follow Codelfa ( Garcia v National Australia Bank Ltd (1998) 194 CLR 935 at 403 [17]).”

Charitable Trusts for Churches

66 One of the questions to be determined by me at this trial is simply the question of what were the terms of the trust as created. This must be answered by reference to the intent of the settlors at the time of the creation of the trust. The effect upon subsidiary matters of the disputes between the combatants in these proceedings is a question for another day. In answering the question it is important to bear in mind the legal background as to trusts for organised churches. By organised churches I mean churches consisting of more than one parish or congregation, where precepts as to doctrine, ritual and practice are laid down by a central or common body of the church, or, as in the case of an established church, by statute or otherwise by the law of the land. If a church is a church in this sense, then when property is held on a charitable trust for the church, to be used in accordance with the purpose of the charitable trust the property must be used in accordance with the doctrines, rituals and practices laid down as set out above. It has been said in the US jurisprudence on this subject that churches may be characterised as hierarchical, presbyterian or congregational. The first two of these models both fall within the rule that the doctrines, rituals and practices laid down by the centralised church must be followed; the rule is not limited to hierarchical churches in the sense of churches which have bishops and a multi-layered hierarchical order; it applies to all churches with a centralised governance in the above sense. The rules were thus applied by the House of Lords to the Free Church of Scotland in the well known case of General Assembly of Free Church of Scotland v Lord Overtoun [1904] AC 515. The very notion of a church was enunciated in that case by the Earl of Halsbury LC at 612 – 613 as follows:

“Speaking generally, one would say that the identity of a religious community described as a Church must consist in the unity of its doctrines. Its creeds, confessions, formularies, tests, and so forth are apparently intended to ensure the unity of the faith which its adherents profess, and certainly among all Christian Churches the essential idea of a creed or confession of faith appears to be the public acknowledgment of such and such religious views as the bond of union which binds them together as one Christian community.”

67 The consequences of a gift for the purposes of a church in this sense were set out as follows by Latham CJ in the Red Book case supra at 255:

“The suit is brought for the purpose of securing the performance of charitable trusts. The trusts upon which the church property is held are religious trusts and are therefore plainly charitable in character. Property devoted to a charitable trust must be used for the purposes, and only for the purposes, of the trust. Changes in circumstances may make it probable that the founder of the trust would, if he had been able to do so, have varied the terms of the trust for the purpose of meeting conditions created by such new circumstances. But when proceedings are instituted in a court for the purpose of securing the performance of such a trust there is no authority in the court to ‘vary the original foundation, and to apply the charity estates in a manner which it conceives to be more beneficial to the public, or even such as the Court may surmise that the founder would himself have contemplated could he have foreseen the changes which have taken place by the lapse of time’ ( Attorney-General v Sherborne Grammar School (1854) 18 Beav 256, at pp 280, 281 [52 ER 101 at p 111]).”

68 There is a large Anglo-Australian and US jurisprudence on this subject. The cases have been compendiously gathered and usefully discussed by Young CJ in Eq in his two decisions mentioned in [2] above, the Assyrian Church case and the Serbian Church case. In view of the clarity of the doctrine and the nature of that discussion it is not really necessary substantially to repeat the same. Corner posts of the Anglo-Australian doctrine are the judgments of Lord Romilly MR in Bishop of Natal v Gladstone supra; of Roper CJ in Eq in Attorney-General v Wylde (1948) 48 SR(NSW) 366; and, on appeal, of the High Court in the Red Book case supra. Among the US cases it is perhaps necessary to mention directly, in addition to the oft cited analysis of the types of religious trusts (from which I have drawn in [66] above) by Miller J in giving the opinion of the US Supreme Court in Watson v Jones 80 US 679 (1871) at 722, only Dragelevich v Rajsich 263 NE (2d) 778 (1970) and New York Annual Conference of the United Methodist Church v Fisher 438 A (2d) 62 (1980). Those cases, cited in the Serbian Church case, as appears in [70] below, illustrate that, despite the generalisations that are made, in every case, in this field as in others, it is to the terms of the particular trust instrument that one must return to ascertain its objects.

69 The rules discussed above were stated and applied in the three recent decisions referred to in [2]. In the Assyrian Church case, the terms of the relevant trust deed were that the trustees would:

“Hold the same subject to the trusts hereinafter appearing and subject to the ‘rules collected from Synhodis (Canonical Law) of the Church of the East and Patriarchal Decrees’ promulgated for the Church of the East in the United States of America.”

“Accordingly, in my view the Attorney-General is entitled to the relief he seeks. The Church is held on trusts which inter alia contain the requirement that Mar Dinkha IV and Mar Meelis be mentioned in the Karoozootha and that the property of the Church in Australia be under the control of those prelates or as they direct.”

70 In the Serbian Church case, the trust was over land at Elanora Heights. The terms of the trust were that the “property shall be held by the Trustees upon trust for the First Serbian Orthodox Church Community ‘St Sava’ Warriewood-Mona Vale …” (at 653). However, at the time of the declaration of trust there was already in force a set of written rules of the Community which included a rule that persons “who admit publicly, or are proved to be anarchist, communist, nihilist and bigamist” were ineligible for membership. Evidence admitted as to the genesis of these rules showed that they arose from extreme hostility in the local Serbian community towards the then Communist government of Yugoslavia and a fear that church property in Australia could come under the control of the Serbian Orthodox Church in Yugoslavia, which was then regarded by the local community as subservient to that Communist regime. His Honour, in surveying the rules that I have discussed above, said:

“2(1) On the incorporation of an association or other body under this Act, the following provisions have effect:

(a) the assets of a former association of the incorporated association vest in the incorporated association without the need for any conveyance, transfer, assignment or assurance;

……

(2) Assets which vest in an incorporated association by virtue of this clause are not to be dealt with contrary to the provisions of any trust affecting the assets immediately before the incorporation of the association or other body under this Act, being provisions as to the purposes for which the assets may or are required to be applied.”

Ex facie

79 The practice in the Registrar General’s Office as to changes to the RPA register consequential upon vesting under the Incorporation Act is as stated in [90.550] of Baalman and Wells, Land Titles Office Practice (5th ed, looseleaf),which is as follows:

“ Vesting of association property [90.550]

Upon incorporation, Sch 2(2) of the Associations Incorporation Act 1984 vests property of the former unincorporated association in the incorporated association. This vesting has effect without conveyance, transfer, assignment or assurance. The effect of the vesting will be recorded under s 46c of the Real Property Act on any title for land held on behalf of the former unincorporated association by the lodgment of an application (Form 04RP).”

Statutory Interpretation: The Presumption against Interference with Vested Interests

80 The general principle was stated as follows in Clissold v Perry (1904) 1 CLR 363 per Griffith CJ at 373 as follows:

“In considering this matter it is necessary to bear in mind that it is a general rule to be followed in the construction of Statutes such as that with which we are now dealing [compulsory acquisition statutes], that they are not to be construed as interfering with vested interests unless that intention is manifest.”

81 There is similarly a presumption against the alteration of common law doctrines. Thus, in Potter v Minahan (1908) 7 CLR 277 at 304 O’Connor J quoted the following passage from the fourth edition of Maxwell on Statutes:

“It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used.”

82 The Court of Appeal in Minister for Lands and Forests v McPherson (1991) 22 NSWLR 687 held that this principle applied as much to the principles of equity as to common law doctrines. In that case Kirby P (as his Honour then was), said at 698 – 700:

“It is the presumption of our legal system that Acts of Parliament are intended to operate justly. Where, then, a statute is silent as to procedures which are to be followed or basic rights observed, the assumption is made, and enforced by the courts, that the statute was intended to operate alongside and in harmony with the common law. The vivid expression of this presumption, oft-cited, is that of Byles J in Cooper v Wandsworth Board of Works (1863) 14 CB NS 180 at 194-195; 143 ER 414 at 420.

……

Does a similar principle apply in relation to basic principles of equity, where those principles have been developed over the centuries to safeguard the achievement of justice in particular cases where the assertion of legal rights, according to their letter, would be unconscionable?

In principle, there would seem to be no reason why a similar approach should not be taken to basic rules of equity. The justice of equity may equally supply the omission of the legislature, filling the silences of the statute.

83 In Balog v Independent Commission against Corruption (1990) 169 CLR 625 at 635 – 636 the Full High Court (Mason CJ, Deane, Dawson, Toohey and Gaudron JJ) said “that where two alternative constructions of legislation are open, that which is consonant with the common law is to be preferred”. And see generally Pearce and Geddes, Statutory Interpretation in Australia (5th ed, 2001) [5.15], [5.16], [5.21] – [5.23].

CONCLUSIONS

What are the Terms of the Trust?

84 Despite the amount of documentary and historical evidence that has been tendered and the lengthy arguments that have been put, in the end it is my view that the answer to this question is reasonably clear. Furthermore, in my view, the answer is the same whether one looks only at the terms of the deed of trust or whether one looks, as reflecting the intention of the settlors, to evidence showing the matrix of facts in which the deed of trust came to be executed.

85 First, I should traverse some of the constitutional history of the parish organisation. The trust, as declared in the deed of trust, is in terms “to permit the trust property to be used by the proposed beneficiary as a site for a Church of the Macedonian Orthodox Religion” and ancillary purposes. “The proposed beneficiary” is defined in recital A as “a religious group to be organised and known as ‘the Macedonian Orthodox Church St Petka Rockdale NSW Australia’”. The relevant group on 8 March 1977 was clearly the unincorporated association which had been formed at the meeting held on 20 November 1976. Whilst it was formed at that time, it may be that the reason that there is some futurity in the references to it as “to be organised” and the “proposed beneficiary” is that its constitution was then regarded as uncertain or unsettled: by-laws had been adopted at that meeting, but were then forwarded to Skopje for approval, which by their terms was a precondition to their operation and which had not been received as at 8 March 1977. Furthermore, it seems clear that, when approval was received from Skopje in May 1977, it was of by-laws in a form which differed in at least some regards from the by-laws which were forwarded to Skopje. It should be noted that those regards did not include the mode of election of the Managing Committee, which remained by the vote of all members at a general meeting. And there is no evidence that the qualification for membership was any different (the defendants’ translation of the by-laws returned from Skopje does not include a translation of the relevant article). There is no evidence that the approved by-laws in different form were ever ratified or adopted here by resolution of a general meeting or any other formal procedure. In the meantime, there seems little doubt that there was contemplated, and was in preparation, at least by April 1977, the somewhat different set of rules known as the Constitution, which was on the evidence adopted on 28 October 1977.

86 The answer to the question as to which of these three sets of rules took primacy at any time may not be easy. It does not need to be determined for the purposes of the present trial. In the regards in which the various versions are material for present purposes, it seems to me there was no difference between them, in that all (so far as the evidence goes) provided for membership to be open to all Orthodox Christians of Macedonian descent and provided for the election of the governing body by a vote of all members at a general meeting. It is likely that it was on the basis that its rules were the Constitution, rather than either form of the by-laws, that the unincorporated association was in 1992 incorporated as the sixth defendant under the provisions of the Incorporation Act, although this cannot be certain: see [37] above. Certainly, by the rule amendment of 28 September 1992, rules were adopted that were in substantially similar form to the Constitution: see [38] above. I have no doubt, and it is not contended otherwise, that it is the incorporated association that is the sixth defendant that now represents the “proposed beneficiary” referred to in the deed of trust.

87 I have, however, formed the view that, contrary to the submission on behalf of the defendants, the trust at its inception was not a gift to an unincorporated association. The submission depended largely on the use of the word “beneficiary”. This is a word which in one particular legal usage is synonymous with the cestui que trust under a trust. However, the word in ordinary language is a word of much wider denotation than that. This has been commented on by Barrett J recently in a different context: see HIH Superannuation [2003] NSWSC 65. But the word is not used here in either a technical sense, nor in the sense in which it is used in ordinary language. In the operative part of the deed of trust it is used as part of the compound expression “the proposed beneficiary”. That expression is defined in recital A as meaning the particular unincorporated association then in mind. In my view, the use of the word “beneficiary” cannot be taken in the context to denominate that unincorporated association as the beneficial recipient of the gift. In my view, the intention of the settlors to be derived from the use of the expression in the particular context of the deed of trust is that there was a gift to a trustee for a purpose. The purpose was to permit the use of the property for a church of the Macedonian Orthodox Religion by a specified entity, namely, the parish organisation denoted by the defined expression “the proposed beneficiary”. It was not a gift for religious purposes of the Macedonian Orthodox Religion or the MOC in general terms, but a gift to a trustee to permit the use of the property by the specified entity for a specified purpose, ie, its use as a church for the worship of the Macedonian Orthodox Religion, and ancillary purposes. What the unincorporated association received under the terms of the gift was a nomination as the entity to use the land for the specified purpose. But in my view it was not the intention of the settlors by the deed of trust to confer any beneficial interest on that unincorporated association or its members.

88 If it is felt that in reaching that conclusion the requisite degree of certainty does not flow from the terms of the deed of trust itself, or any ambiguity arises, one may turn to the surrounding circumstances. As I have already said, and with no disrespect intended to any of the gentlemen involved, I think it better to rely on the contemporaneous documentation as showing actions and intentions at the time, than on any latter day recollections. When one turns to those documents, two things are clear. The intention of the congregation of the new parish, including the settlors, was undoubtedly to adhere to the MOC, that is, the hierarchical church as established in Macedonia and the diaspora at that time. It is plain in all statements leading up to the meeting of 20 November 1976 and to the execution of the deed of trust on 8 March 1977. By-laws were adopted 20 November 1976 which made it quite plain that the religion which was to provide the form of worship in the church to be constructed was the religion of the MOC. The by-laws were immediately submitted to the authorities of the MOC in Skopje for approval and those authorities were requested to appoint a priest. The available documents (including the Souvenir Booklet) are redolent of sentiments of respect for and, indeed, veneration of the MOC throughout the period before the deed of trust was executed and up to 20 November 1977, the anniversary of the meeting at which the unincorporated association was formed. The same conclusion flows from the deed of trust, viewed in the context of the surrounding circumstances, as flows in my view from the deed of trust viewed alone. Indeed, no demur to the sentiments mentioned above was apparent until after the disputes leading to the present litigation broke out. On the evidence, it appears that that did not occur until 1997. That imports into this case a difference of some significance from the facts in the Melbourne case, in that the parish organisation was incorporated as the sixth defendant long before the disputes broke out and was regarded by all, including the authorities of the MOC, as being the duly appointed parish organisation to manage the trust property under the deed of trust up to 1997.

89 In this case, there was no question at the time of the inception of the trust of any intense or, indeed, any particular hostility towards the Communist regime in Macedonia or to the Mother Church, which at that time co-existed in Macedonia with the Communist regime. It is not clear whether the situation between Church and Communist state was less fraught as a matter of history in Macedonia than in Serbia. It may simply be that the passage of more than 25 years since the foundation of the local church involved in the Serbian Church case meant that heat over the ideological differences had cooled. It should be added, in any event, that the evidence evinces in this immigrant group a strong loyalty to Australia and also a deep attachment to democratic principles.

90 The latter is particularly significant in relation to the affairs of the parish organisation. The sense of hostility that was involved in the foundation of this parish was not towards a Communist dominated Mother Church overseas, but towards the existing church at Rosebery of St Kiril and St Metodij. The material shows that the source of this hostility was that the organisation of that church gave what was regarded as ongoing and inordinate power to certain founder members. The insistence was that this church should be governed on a democratic basis. These things were emphasised at the meeting of 20 November 1976 at which the unincorporated association was formed: see [13] above.

91 The principle that the parish organisation should be governed on a democratic basis was embodied in the by-laws which were the only existing form of constitution at the time of the execution of the deed of trust. It took the form of provision for openness of membership to all relevant believers on a basis of equality and for election of the committee by democratic vote of the members. (Indeed, those provisions have continued to be embodied in all constitutional documents which have, or may have, applied since that time to the parish organisation.) I infer that the principle was in the forefront of the minds of the settlors at the time of the execution of the deed of trust. It is my view that, if it were necessary, it should be incorporated into the terms of the trust as declared by me in the manner laid down by Young CJ in Eq in the Serbian Church case at [202]. However, that in my view is unnecessary. This is because that principle is in any event incorporated in the terms of the trust as they appear from the deed of trust itself. The incorporation is effected by the specification of the parish organisation as the body which under this trust is to be permitted to use the property for the purposes of a church of the Macedonian Orthodox Religion and ancillary purposes. Although it had perhaps not taken final form, that body was organised with rules which embodied the contemplated democratic principle by providing for openness of membership and democratic election of the governing body. It is therefore my view, whether one approaches the situation with or without the evidence of surrounding circumstances, the terms of the trust were simply as specified in the deed of trust, namely, that the property was given:

“… upon trust to permit the trust property to be used by the proposed beneficiary 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.”

Whether The Trust is a Valid Charitable Trust

92 In my view the trust is a valid trust for the purposes of the Macedonian Orthodox Religion, although limited to the use of the subject property as a property for a church of that Religion and ancillary purposes. As I have already said, I take the view that the gift was a gift for that religious purpose and not a gift to an unincorporated association that conferred any beneficial estate or interest in the property: the only right of the unincorporated association was its entitlement to be the body permitted by the trustee to use the property for those purposes. Although there are many cases in which doubts have been cast upon whether a trust for the purposes or particular purposes of a church is bad as a charitable trust by being so wide as to extend to non-charitable purposes of the church (Roman Catholic Archbishop of Melbourne v Lawlor (1934) 51 CLR 1; In re Moroney; Maguire v Reilly (1939) 39 SR(NSW) 249; McCracken v Attorney-General for Victoria [1995] 1 VR 67; and see generally G Dal Pont, Charity Law in Australia and New Zealand (2000) 154 - 157), that has not been argued in this case. No one has submitted that the ancillary purposes as defined in the deed of trust are so wide as to extend beyond charitable purposes. In my view that is the correct view. It is emphasised by the fact that the other buildings and activities must be concerned with or ancillary to the encouragement, practice and promotion of the Macedonian Orthodox Religion. I am therefore of the view that the trust at its inception was a valid charitable trust.

93 So far as properties other than the first property are concerned, it is my view that, as they were acquired, they became subject to a trust on the same terms as the purpose stated above in respect of the first property. The only one of the properties in respect of which there is a separate declaration of trust is the Arncliffe property. There, in my view, the “Church Trust” referred to in the Arncliffe declaration of trust upon which that property was to be held was the trust as declared in the deed of trust and set out above. In relation to the other properties, all parties have proceeded on the basis, in the absence of any separate declarations of trust, that they became subject to the same trust upon acquisition. The only ones in relation to which there can be any difficulty arising from this are the second unit and the third unit, where the legal title upon acquisition was vested, not in separate trustees, but in the Macedonian Orthodox Church St Petka, which must be taken to have been at the time the unincorporated association. However, in my view, despite some awkwardness arising from the trustee and the proposed beneficiary being identical in those cases, the second unit and the third unit became subject to the same trust as the other properties. The trust was to permit the use by itself (or itself to use) the properties for the purpose of the original trust. It could be argued that the result would be different if those units were the only properties held on the trust. However, where there is a body of property, of which they were only a small part, held upon the same trust, in my view the trust should be regarded as being identical in respect of each property. I do not see in the evidence any indication that the second unit and the third unit were to be held on different terms. Everything in the evidence points to the intention that the whole body of property should be held on the same trust.

Does the Charitable Trust Still Exist: The Effect of the Incorporation Act

94 Now that I have found that there was a valid charitable trust, which subsisted at least to the time of the incorporation of the incorporated association, the question is whether the incorporation of the incorporated association affected the subsistence of the trust. The defendants’ primary argument is that on incorporation the whole of the property subject to the charitable trust vested for a legal estate in the incorporated association and that the effect of the Incorporation Act was to free it from the charitable trust, leaving it, however, subject to the provision of clause 2(2) of Schedule 2, to the effect, both before and after the 1992 amendments, that the property which vested should “not be dealt with contrary to the provisions of any trust affecting the property immediately before incorporation of the association under this Act, being provisions as to the purposes for which the property may or is required to be applied.” It is to be inferred, say the defendants, that the Parliament regarded as necessary the insertion in the legislation of a provision in those terms to preserve the purposes of a pre-existing trust for purposes; that bespeaks a legislative intention that the property should be freed from the provisions of the trust itself and that the trust should no longer bind the property. The mechanism of its demise is, the argument goes, that the property was held “in trust or otherwise, for or on behalf of a former association of the incorporated association or for its objects”; property that answers that description “shall, subject to this Act and to the extent that the property was so vested or held, vest in the incorporated association”; and that vesting is of the whole legal and beneficial interest in the property. There remain limitations on its use, but those limitations are now provided by clause 2(2) and the objects of the incorporated association.

95 It should be added that it is the defendants’ contention that, although the effect of the vesting is that the property is now held legally and beneficially wholly by the incorporated association, this does not mean that it is removed from the purview of the jurisdiction of the Court over charities. Mr Walker referred to cases in this regard such as In re Vernon’s Will Trusts [1972] Ch 300 and Liverpool and District Hospital for Diseases of the Heart v Attorney-General [1981] Ch 193, where the Court’s jurisdiction over charities was said to be available even where there could not be said to be a charitable trust, but there was a charitable purpose within the meaning of the law of charity. The situation, Mr Walker said, is therefore that the incorporated association holds the whole of the legal and beneficial interest in the property. It does not hold it upon any trust. It does, however, hold it subject to the statutory limitation contained in clause 2(2) of Schedule 2 and to be used for its objects; but being held for a purpose which is charitable within the meaning of the law of charity, it is subject to the supervision of the Court in that regard. However, the plaintiffs contest the existence of this principle. As in my view the charitable trust was not discharged or terminated by the vesting, the existence of the principle need not be considered further.

96 The primary reason why the defendants’ submission should be rejected is that it is simply not tenable on the 1992 wording of the relevant provisions. In my view the effect of clause 6 of Schedule 3 is to replace with the amended clause 2 the 1984 clause 2 in respect of all incorporations since the commencement of the Act. The 1992 provisions therefore have some retrospective operation. But unless they are given, at least literally, retrospective operation, the clear stipulation that they are to apply to pre 1992 incorporations has no operation at all, which cannot have been intended. It is therefore to the 1992 provisions that attention must be given. In my view, the meaning of those provisions is reasonably clear. The interpretation contended for by the defendants is really not open upon the amended clause 2, into which the new definitions in clause 1 are subsumed, read in the context of the whole of the Incorporation Act. What is vested under the 1992 clause 2 is “the assets” of the unincorporated association. The operation of the provision in cases where the unincorporated association held, not the whole estate or title, but a limited interest only in property, is to vest only the limited interest in the incorporated association. Anything more than the limited interest could not fall within the denotation of “the assets” which were vested. I have already held that the unincorporated association had no equitable estate or interest as beneficiary in the trust property. It had only a right (which may or may not be a right of property, I do not need to analyse that at this stage) to be the entity to use the property for the charitable purpose which was the object of the trust. The legislative purpose of clause 2(2) is to confirm the preservation of trusts, not to destroy them or indicate their destruction. The charitable trust continues to subsist and to bind the property.

97 When I suggest in [96] above that the retrospective operation of the 1992 amendments may be literal only, I advert to the argument, espoused by at least the defendants and the Attorney-General, that there is no difference in effect between the 1984 and the 1992 provisions. The Explanatory Memorandum describes the relevant provision of the Amendment Act as being one for clarification and simplification. It does not state that the amendment changes the effect of the vesting provision. This also reinforces my conclusion that, even upon the 1984 clause 2, all that was intended by the Parliament to be vested in the incorporated association was the limited interest of the unincorporated association. In other words, the Parliament which in 1992 intended only clarification and simplification was proceeding on the basis that the intention of Parliament in 1984 was to produce the same result as was more clearly stated in the amended provision. The other benefit (and, indeed, strength) of this interpretation is that it means that the amendment, although it literally has retrospective operation, has no substantive effect retrospectively, in that the incidence of any previous vesting is not altered.

98 If I am right, that the 1992 provision is clear in its meaning that the charitable trust is not affected by the vesting of property in the sixth defendant, there is no need to have resort to the presumption in favour of the preservation of vested legal and equitable interests. However, to any extent that the 1992 provisions can be characterised as unclear or ambiguous, the presumption against the destruction of the existing vested interest, namely, the charitable trust, should lead the Court to adopt the interpretation which would preserve the existing vested interest. This is all the more so since the interest to be preserved is not entirely a private interest (important as the preservation of a private interest would be), but an interest, being a religious charitable trust, in respect of which there is a public interest in its preservation.

99 Even if I am wrong in my conclusion that the 1992 amendments are the applicable provisions of the Incorporation Act, and the 1984 provisions apply to the incorporation of the sixth defendant, that would not in my view change the result. Since my view is as recorded in [96], I shall not go into this in great detail. Suffice it to say that, on my view, it is quite clear that the provisions of the 1984 clause 2(1) are ambiguous in a number of ways. Some of these are referred to in [77] above. In view of its ambiguities the Court would not in my view, where the interest of the unincorporated association is limited, construe the provision to have the radical effect of vesting the whole legal and beneficial interest in the incorporated association, thereby destroying the vested interest constituted by an existing charitable trust. For that reason Mr Walker’s argument on behalf of the defendants would fail even if the 1984 provisions were the relevant provisions.

100 At one stage, I tended to the view that the fee simple in the properties under the RPA was wrongly transferred to the sixth defendant by the Registrar-General, acting on an erroneous certificate. However, I have now been convinced me that this is not so. That is because Schedule 2 clause 2 in its present form, at least, can operate in two ways. First, by the direct operation of clause 2(1)(a) any beneficial interest in the property under the trust would be vested in the incorporated association. If the entitlement to use the property for the purposes of the trust falls within the definition of “assets”, which I doubt, it would so vest. But, quite separately, clause 2(1)(b), if the trustees of the various pieces of property were members of the unincorporated association and held the legal titles to the property as members, then, by virtue of the definition of “former association” in clause 1, the legal titles are assets of a former association and those legal titles vest in the incorporated association by virtue of clause 2(1).

101 In my view, I should draw the inference that all the trustees held their interest in the property as members. This statement involves two propositions. The first is that the trustees were all members of the unincorporated association. The second is that their holding of the property was as members. I invited submissions as to whether it was shown that all the trustees were members. It is clear that the ten individuals name as trustees in Schedule A to this judgment were members when appointed see [30]. The evidence shows that it was the policy to select members to be trustees. It is not shown that any trustee was not a member. Nor is it shown that any trustee who was a member ceased to be a member before the vesting date, although it seems that two of the original ten may have ceased to be trustees, reducing the number to eight. Furthermore, no submission was put to me that I should find that any trustee was not a member at any relevant time. But it was submitted on behalf of the plaintiffs that the trustees could not be said to hold any property in their role as members, but only in the role of trustees. The construct obtained by inserting the words “any … members of the former association as members” into the fabric of clause 2(1)(a) is inelegant. But it appears to me to mean any property held by any members of the association not for themselves but as members, ie, for the benefit or purposes of the association. The reference is not in my view to any formal structure of holding as members. Holding as trustees for (or to permit) use by the unincorporated association for its purposes is in my view sufficient. Therefore the legal titles (but only the legal titles) in the RPA land and the first unit were vested in the incorporated association by the Incorporation Act. It is clear that the legal titles to the second unit and the third unit, which stood in the name of the association, were equally so vested. The incorporated association was correctly recorded as holding the legal titles by the Registrar-General and by the unit company.

102 As a result of the foregoing, the questions posed for my decision should be answered as follows:

(a)(i) & (ii) The property referred to in Schedule A was prior to the transfer of the legal titles to the sixth defendant held 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. I am unable on the evidence to answer the question as to other property.

(b) Yes.

FURTHER PROCEEDINGS

103 An appointment should be made for short minutes to be brought in to embody the decisions that I have come to.

104 Whilst other issues in the proceedings remain outstanding, I can only hope that the answers to these questions may enable the parties to order their affairs without taking further this litigation. If it proceeds, it will absorb both funds which could be better used otherwise and the energies of the parties which could be better deployed. The situation at the moment is that the property is vested in the incorporated association, but subject to the charitable trust which I have found to subsist. That means that the incorporated association holds the property, but is obliged to deal with it in accordance with the provisions of the charitable trust. As that charitable trust is undoubtedly a charitable trust for conducting a church for the worship of the religion of the MOC, that church must be conducted in accordance with the tenets of the MOC. On the other hand, whether or not the incorporated association is to remain the legal owner, it remains under the terms of the trust the body which is to conduct the church and associated activities upon the relevant properties. It would be very beneficial if the parties could, now that these matters have been clarified, compound their differences so that the incorporated association which represents the “proposed beneficiary” under the trust continues to be the body conducting the church, but does so in accordance with the dictates of the religion of the MOC. That would be a fortunate result. Time will tell whether it can be achieved or whether the litigation of further issues in the proceedings will be necessary.

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Last Modified: 04/10/2003

Citations

Metropolitan Petar v Mitreski [2003] NSWSC 262

Most Recent Citation

Cases Citing This Decision

32

Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42

Macedonian Orthodox Community Church St Petka Incorporated v Metropolitan Petar [2013] NSWCA 223

Metropolitan Petar & 1 Or v Macedonian Orthodox Community Church St Petka Incorporated & 7 Ors [2007] NSWCA 263

Cases Cited

21

Statutory Material Cited

3

Radmanovich v Nedeljkovic [2001] NSWSC 492

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CITATION:	Metropolitan Petar v Mitreski [2003] NSWSC 262
HEARING DATE(S):	12, 14 & 15, 19 - 23 and 26 August, 4 September, 30 October and 5 November 2002 and 13 March 2003
JUDGMENT DATE:	4 April 2003
JURISDICTION:	Equity
JUDGMENT OF:	Hamilton J
DECISION:	Trust of land to permit it to be used by a specified body (being an unincorporated association) as a site for a church of the Macedonian Orthodox Religion held valid as a charitable trust and its terms determined. Land held not to have been freed of trust by vesting in incorporated association upon its incorporation.
CATCHWORDS:	ASSOCIATIONS AND CLUBS [49] - Incorporated associations - Matters relating to incorporation - Effect of incorporation - Vesting of property - Whether property vested is freed from charitable trust on which it was previously held - CHARITIES [80] - Charitable gifts and trust - Validity and practicability - Property subject to charitable trust - Other matters - Property held to permit its use by a particular entity as a church of the Macedonian Orthodox Religion - Validity and terms of trust - EQUITY [111] - Trusts and trustees - Express trusts constituted inter vivos - Declaration of trust - Necessity for intention - Ascertainment of intention - Principles applicable - STATUTES [21] - Acts of Parliament - Interpretation - Rules of construction - Where meaning ambiguous or uncertain - Presumptions as to legislative intention - Not to alienate vested proprietary interests or subvert common law or equitable rights - General principle - Necessity for clear language.
LEGISLATION CITED:	Associations Incorporation Act 1984 s 15(3), Schedule 2 clauses 1 & 2(1) & (2), Schedule 3 clause 6 Associations Incorporation (Amendment) Act 1992 Charitable Collections Act 1934
CASES CITED:	Attorney-General v Gould (1860) 28 Beav 485; 54 ER 452 Attorney-General v Wylde (1948) 48 SR(NSW) 366 Attorney-General ex rel Elisha v Holy Apostolic and Catholic Church of the East (Assyrian) Australia NSW Parish Association (1989) 37 NSWLR 293 Attorney-General for New South Wales v The Perpetual Trustee Company (Limited) (1940) 63 CLR 209 Attorney General for the State of Queensland (at the relation of Nye) v The Corporation of the Lesser Chapter of the Cathedral Church of Brisbane (1977) 136 CLR 353 Bacon v Pianta (1966) 114 CLR 634 Balog v Independent Commission against Corruption (1990) 169 CLR 625 Bank of Credit and Commerce International SA v Ali [2002] 1 AC 251 Bishop of Natal v Gladstone (1866) LR 3 Eq 1 Bishop of Newcastle v Walker (1898) 14 WN(NSW) 191 Bismark Range (Lucknow) Gold Exploration NL v Wentworth (Lucknow) Gold Fields NL (1935) 35 SR(NSW) 400 Brooks v NSW Grains Board [2002] NSWSC 1049 C J Burland Pty Ltd v Metropolitan Meat Industry Board (1968) 120 CLR 400 Charter Reinsurance Co v Fagan [1997] AC 313 Clissold v Perry (1904) 1 CLR 363 Codelfa Construction Proprietary Limited v State Rail Authority of New South Wales (1982) 149 CLR 337 Dragelevich v Rajsich 263 NE (2d) 778 (1970) General Assembly of Free Church of Scotland v Lord Overtoun [1904] AC 515 HIH Superannuation [2003] NSWSC 65 His Grace Metropolitan Petar v Aco Kostovski; Alexander v Branov VSC Byrne J 27 October 1997 unreported Holy Apostolic & Catholic Church of the East (Assyrian) Australia NSW Parish Association v Attorney-General (NSW) ex rel Elisha (1989) 18 NSWLR 291 In re Gulbenkian's Settlements [1970] AC 508 In re Moroney; Maguire v Reilly (1939) 39 SR(NSW) 249 In re Vernon's Will Trusts [1972] Ch 300 Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896 Liverpool and District Hospital for Diseases of the Heart v Attorney-General [1981] Ch 193 McCracken v Attorney-General for Victoria [1995] 1 VR 67 Mannai Investment Co Ltd v Eagle Star Assurance Co Ltd [1997] AC 749 Minister for Lands and Forests v McPherson (1991) 22 NSWLR 687 New York Annual Conference of the United Methodist Church v Fisher 438 A (2d) 62 (1980) Potter v Minahan (1908) 7 CLR 277 Prenn v Simmonds [1971] 1 WLR 1381 Radmanovich v Nedeljkovic (2001) 52 NSWLR 641 Reardon Smith Line v Hansen-Tangen [1976] 1 WLR 989 Roman Catholic Archbishop of Melbourne v Lawlor (1934) 51 CLR 1 Royal Botanic Gardens and Domain Trust v South Sydney City Council (2002) 76 ALJR 436 Wade v New South Wales Rutile Mining Co Pty Ltd (1970) 121 CLR 177 Watson v Jones 80 US 679 (1871) Wylde v Attorney-General for New South Wales (ex rel Ashelford) (1948) 78 CLR 224 Baalman and Wells, Land Titles Office Practice (5th ed, loose leaf) [90.550] G Dal Pont, Charity Law in Australia and New Zealand (2000) 154 - 157 Ford and Lee, Principles of the Law of Trusts (3rd ed, looseleaf) [2010] New South Wales Law Reform Commission Report on the Incorporation of Associations, LRC 30 (1982) Pearce and Geddes, Statutory Interpretation in Australia (5th ed, 2001) [5.15], [5.16], [5.21] - [5.23]
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 T G R Parker (Ps) B J Walker SC and M J Heath (D1 - 6 & 8) R Lancaster and N L Sharp (D9)
SOLICITORS:	Sachs Gerace Lawyers (Ps) McConnell Jaffray (D1 - 6 & 8) I V Knight, Crown Solicitor (D9)

Item	Paragraphs
HISTORY OF THE MACEDONIAN ORTHODOX CHURCH	3 – 11
HISTORY OF THE CHURCH OF ST PETKA, ROCKDALE	12 - 40
THE PROCEEDINGS	41 – 47
THE SUBMISSIONS	48 – 60
THE LAW
Charitable Trusts: Some Relevant Principles	61 – 62
Gifts to Unincorporated Associations	63
Construction of Charitable Trusts: Ascertainment of Settlor’s Intention	64 – 65
Charitable Trusts for Churches	66 – 73
The Vesting of Property by the Associations Incorporation Act 1984	74 – 79
Statutory Interpretation: The Presumption against Interference with Vested Interests	80 – 83
CONCLUSIONS
What are the Terms of the Trust?	84 – 91
Whether the Trust is a Valid Charitable Trust	92 – 93
Does the Charitable Trust Still Exist: The Effect of the Incorporation Act	94 – 102
FURTHER PROCEEDINGS	103 – 104