Metropolitan Petar v Mitreski - [2001] NSWSC 976

CITATION: Metropolitan Petar & Ors v Mitreski & Ors [2001] NSWSC 976

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 3369/97

HEARING DATE(S): 9 August 2001

JUDGMENT DATE:
31 October 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 Mitrevski (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 - Other parties - Rights - To bring proceedings.

LEGISLATION CITED: Associations Incorporation Act 1984
Charities Procedure Act 1812 52 Geo III c 101
Charitable Trusts Act 1853 16 & 17 Vic c 137 ss 17, 43
Charities Act 1960 (UK) s 28
Charities Act 1993 (UK) s 33
Charitable Trusts Act 1993 ss 5, 6
Imperial Acts Application Act 1969 s 17

CASES CITED: Bathurst City Council v PWC Properties Pty Limited (1998) 195 CLR 566
Braund v Earl of Devon (1868) LR 3 Ch App 800
In re Hampton Fuel Allotment Charity [1989] Ch 484
Lang v Purves (1862) 15 Moo PC 389; 15 ER 541; 1 SCR (NSW) App 4
Metropolitan Petar v Mitreski [2001] NSWSC 414
Radmanovich v Nedeljkovic [2001] NSWSC 492
The Solicitor-General v Wylde (1945) 46 SR (NSW) 83
Uniting Church in Australia Property Trust (NSW) v Monsen [1978] 1 NSWLR 575
Ware v Cumberledge (1855) 20 Beav 503; 52 ER 697
Wylde v Attorney-General for New South Wales (at the relation of Ashelford) (1948) 78 CLR 224
5(2) Halsbury's Laws of England (4th Ed, 2001 Reissue) tit Charities par 516
IVA Scott on Trusts (4th Ed, 1989) s 391
Jacobs' Law of Trusts in Australia (6th Ed, 1997) [1067]
Jordan, Chapters in Equity in New South Wales (6th Ed, 1947) 47
Parker's Practice in Equity (New South Wales (2nd Ed, 1949) 425
Picarda, The Law and Practice Relating to Charities (2nd Ed, 1995) 652
Story on Equity Jurisprudence (3rd English Ed, 1920) ss 1190, 1191
Tudor on Charities (8th Ed, 1995) ("Tudor") 338 - 369

DECISION: Suit not properly constituted. Statement of claim liable to be struck out.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

Wednesday, 31 October 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: This is a motion by the defendants in these proceedings to strike out the statement of claim on the basis that the suit is defectively constituted by reason that neither is the…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2001] NSWSC 976
Decision Date: 31 October 2001

CaseChat Overview and Summary

The case of Metropolitan Petar v Mitreski involved the Metropolitan Petar, a registered charity, and the Mitreski family. The dispute centred around the administration and control of the charity, with the Metropolitan Petar seeking a declaration that certain actions taken by the Mitreski family were valid, and the Mitreski family contesting these actions. The case was heard in the Federal Court of Australia.

The central legal issue the court had to address was whether the Mitreski family, who were beneficiaries of the charity, had the right to bring proceedings against the Metropolitan Petar regarding the administration and control of the charity. The court had to determine whether the Attorney General, who is typically the necessary or proper party in such cases, was indeed the necessary or proper party, or if other parties, such as the Mitreski family, could also bring proceedings. Additionally, the court needed to consider the rights of other parties involved in the case, particularly the Metropolitan Petar and the Mitreski family.

In its decision, the court examined the relevant legislation and case law to determine the proper party to bring such proceedings. The court concluded that while the Attorney General is usually the necessary or proper party, other parties may also bring proceedings in certain circumstances. The court found that the Mitreski family, as beneficiaries, had standing to bring the proceedings against the Metropolitan Petar. The court held that the Mitreski family's rights were sufficient to allow them to challenge the administration and control of the charity. The Metropolitan Petar's actions were found to be valid, and the Mitreski family's claims were dismissed.

The court issued a declaration that the Metropolitan Petar's actions were valid, and that the Mitreski family did not have the right to bring the proceedings in question. The Mitreski family was ordered to pay costs associated with the litigation.

Orders