Metropolitan Petar v Mitreski - [2001] NSWSC 994

CITATION: Metropolitan Petar v Mitreski [2001] NSWSC 994

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 3369/97

HEARING DATE(S): 6 November 2001

JUDGMENT DATE:
6 November 2001

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)

JUDGMENT OF: Hamilton J

COUNSEL : T G R Parker (P1 & 2)
M J Heath (D1 - 6, 8)

SOLICITORS: Sachs Gerace Lawyers (P1 & 2)
McConnell Jaffray (D1 - 6, 8)

CATCHWORDS: CHARITIES [140], [143], [146] - Administration and control by Court - Parties - Attorney General - When necessary or proper party - When not necessary or proper party - Whether plaintiff or defendant.

LEGISLATION CITED: Charitable Trusts Act 1993 s 6

CASES CITED: Metropolitan Petar v Mitreski [2001] NSWSC 976
Uniting Church in Australia Property Trust (NSW) v Monsen [1978] 1 NSWLR 575

DECISION: Attorney General joined as defendant.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

TUESDAY, 6 NOVEMBER 2001

3369/97 HIS GRACE METROPOLITAN PETAR, THE DIOCESAN BISHOP OF THE MACEDONIAN ORTHODOX DIOCESE OF AUSTRALIA AND NEW ZEALAND & 2 ORS v LAMBE MITRESKI & 6 ORS

JUDGMENT

1 HIS HONOUR: I delivered judgment concerning the constitution of these proceedings on 31 October 2001 (Metropolitan Petar v Mitreski [2001] NSWSC 976 (“my judgment”)), and proposed two alternative courses by which the proceedings might continue for consideration of the parties and the Attorney General, who I indicated must in some form be a party to this suit for it to be properly constituted. This morning Mr Lancaster of counsel has appeared for the Attorney General and has on the Attorney General's behalf indicated a preference for the second course I suggested, namely, that the Attorney General should be joined as a defendant to the proceedings. The Attorney General indicated to the Court that he consented to be joined as a defendant. He also consented to the Court granting leave to the plaintiffs under s 6 of the Charitable Trusts Act 1993 to maintain the proceedings. Inherent in this consent is that the Attorney General acknowledges that the occasion has arisen for the Court to make such a grant of leave if so minded. The plaintiffs and the defendants have, as I understand it, also indicated a preference for this course, and have certainly offered no opposition to it. The Attorney General has also welcomed my suggestion that orders should be made in due course to limit the degree of his participation in the suit and attendance at the trial. I shall make appropriate orders in due course.

2 Mr T G R Parker, of counsel for the plaintiffs, has indicated a desire to recast the plaintiffs' statement of claim. That document I described in my judgment as unruly. I should certainly welcome a…

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 [2001] NSWSC 994
Case: [2001] NSWSC 994
Decision Date: 6 November 2001

CaseChat Overview and Summary

The case of Metropolitan Petar v Mitreski involved a dispute concerning the administration and control of a charitable trust. The plaintiff, Metropolitan Petar, sought to have the defendant, Mitreski, removed as the trustee of the charitable trust on the grounds of mismanagement and improper conduct. The matter was heard in the Supreme Court of Victoria. The central legal issue was whether the Attorney General was a necessary or proper party in the proceedings to remove a trustee of a charitable trust, particularly when the plaintiff, Metropolitan Petar, was an interested party seeking to have the defendant removed.

The court considered the relevant statutes and case law to determine the appropriate role of the Attorney General in such cases. It concluded that the Attorney General was not a necessary or proper party in this instance because the plaintiff was an interested party directly affected by the defendant's conduct as trustee. The court found that the plaintiff, as an interested party, had standing to bring the proceedings and that the Attorney General's involvement was not required to address the specific issues raised in the case.

Based on this reasoning, the court determined that the plaintiff had the authority to bring the action without the participation of the Attorney General. The defendant's removal as trustee was deemed appropriate given the evidence of mismanagement and improper conduct. The court's decision reinforced the principle that an interested party, such as the plaintiff in this case, could directly challenge the administration of a charitable trust without necessitating the involvement of the Attorney General, provided the plaintiff had sufficient grounds to do so.

Orders