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Metropolitan Petar v Mitreski

Metropolitan Petar v Mitreski

Case [2003] NSWSC 262 4 April 2003

Adverse Possession

Easements & Covenants

Constructive Trust

Property Law

Equity

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Metropolitan Petar v Mitreski

Details

AGLC: Metropolitan Petar v Mitreski [2003] NSWSC 262
Case: [2003] NSWSC 262
Decision Date: 4 April 2003

CaseChat Overview and Summary

Metropolitan Petar, acting as the representative of the Macedonian Orthodox Church in Australia, brought an action against Mitreski and others, seeking declarations and an account of profits regarding the ownership and control of certain properties. The case was heard in the Supreme Court of Victoria. The dispute centred on the ownership of several properties that were initially held under a charitable trust for the benefit of the Macedonian Orthodox Religion in Australia. The primary legal issues that the court had to resolve were whether the incorporation of the association had resulted in the vesting of the properties in the association, thereby freeing them from the charitable trust, and whether the association had validly declared a trust over the properties.

The court examined the relevant statutory provisions and case law to determine whether the incorporation of the association had the effect of vesting the properties in the association, thus releasing them from the charitable trust. It considered the nature of the charitable trust and the effect of the association's incorporation on the properties. The court also looked at the declaration of trust by the association and whether it was valid and what its terms were. Ultimately, the court concluded that the properties had indeed vested in the association upon its incorporation, thereby freeing them from the charitable trust. However, the association had not validly declared a trust over the properties, as the necessary intention to create a trust was not present.

The court found that the association had no proprietary interest in the properties and that they remained held on trust for the Macedonian Orthodox Church in Australia. The court made declarations to this effect and ordered that the association account for any profits it had made from the properties. The court also ordered that the association's constitution be amended to reflect the court's findings and that the association take steps to ensure that the properties were used for their intended charitable purpose.

Orders