Metropolitan Petar v Mitreski

[2003] NSWSC 291

CITATION:	Metropolitan Petar v Mitreski [2003] NSWSC 291
HEARING DATE(S):	4 April 2003
JUDGMENT DATE:	4 April 2003
JURISDICTION:	Equity
JUDGMENT OF:	Hamilton J
DECISION:	Judgment delivered.
CATCHWORDS:	JUDGMENT - Delivery - Reasons for rider to answer to question (a).
CASES CITED:	Metropolitan Petar v Mitreski [2003] NSWSC 262
PARTIES :	His Grace Metropolitan Petar, the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand (P1) The Very Reverend Father Mitko Mitrev (P2) Lambe Mitreski (D1) Pero Damceski (D2) Boris Minovski (D3) Eftim Eftimov (D4) Mile Marcevski (D5) Macedonian Orthodox Community Church St Petka Incorporated (D6) Naum Despotovski (D8) Attorney General for State of NSW (D9)
FILE NUMBER(S):	SC 3369/97
COUNSEL:	B A J Coles QC 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

REMARKS ON DELIVERY OF JUDGMENT

1 HIS HONOUR: The subject matter of the trial that I have conducted in these proceedings was the separate decision of three questions.

2 The first of those questions was whether the property referred to in Schedule A and any other property referred to in paragraph 11 of the further amended statement of claim ("the property") was prior to it being vested in the sixth defendant was held upon any and if so what trust, (i) for the purposes of the Macedonian Orthodox Church as that term is defined in the further amended statement of claim, or (ii) for some other purpose or beneficiary and, if so, what purpose or beneficiary.

3 That question is answered as follows:

(a)(i) & (ii) The property referred to in schedule A was prior to the transfer of the legal titles to the 6th 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.

4 The second question, (b), was whether any trust found under (a) above is a valid charity.

5 The answer is, Yes.

6 The third question, (c), was whether the effect of the vesting of the property in the sixth defendant was that the sixth defendant thereafter held the property free of either trust.

7 The answer to that question is, No.

8 I should say that, where I added the rider to my first answer, “I am unable on the evidence to answer the question as to other property,” the reasons for judgment which I shall shortly publish do not give the reason for that rider. I now give it. The reason for that rider is that there was not before me sufficient evidence and there were no submissions by the parties that would have enabled me to answer the question as to property other than the property in Schedule A.

9 The reasons that I shall publish provide in par [103] that an appointment should be made for short minutes to be brought in to embody the decisions that I have come to. Would counsel please next week be in touch with my Associate to make that appointment. For guidance it appears that 17 April may be a suitable day, but I will leave that for discussion with my Associate. I think there will have to be at least some further argument at some stage as to the form of orders, rather than there simply being agreed orders. I shall attempt to obtain a larger court room on the next occasion in case there is interest in hearing the further argument.

10 I publish the reasons for my decision: Metropolitan Petar v Mitreski [2003] NSWSC 262.

PARKER: Before your Honour adjourns, I seek an interim order in terms of our proposed order 3 in relation to the property which was the subject of your Honour's decision.

HIS HONOUR: And that order is?

PARKER: An order which will restrain the defendants (other than the ninth defendant) by themselves, their servants or agents from disposing of or otherwise dealing with any of the property other than for the purpose specified in your Honour's order.

HIS HONOUR: I am not inclined to grant or even deal with that application in a peremptory fashion at this stage. That can be brought forward when the matter is next before me, when you may bring a motion to that effect.

PARKER: I understand I have leave to do so. May I just make it clear that we may raise the matter inter partes before that happens and not to put too fine a point on it, I will be seeking an undertaking from Mr McConnell. He may be able to give it on behalf of his clients.

HIS HONOUR: Mr McConnell, I would hope that you might be in a position to give an undertaking up to and including the date the matter is back before me but I will leave that entirely in your hands.

MCCONNELL: I am not in a position to give an undertaking.

HIS HONOUR: I am not suggesting you are.

MCCONNELL: I haven't received instructions or advice from counsel.

HIS HONOUR: Nothing can be done, I should have thought, until the judgment is digested. However, I hope that some accommodation can be reached so the matter can come back before me in an orderly way the week after next. In view of the fact that there may be problems arising from that, I think you had all better aim towards being able to be before me on 17 April so that there can be early attention to that matter if necessary.

ADJOURNED PART HEARD TO 17 APRIL 2003.

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Last Modified: 04/22/2003