Metropolitan Petar v Mitreski - [2001] NSWSC 414

CITATION: Metropolitan Petar & Anor v Mitreski & Ors [2001] NSWSC 414

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 3369/97

HEARING DATE(S): 11/05/01

JUDGMENT DATE:
11 May 2001

PARTIES :

His Eminence 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: Young CJ in Eq

COUNSEL : A Fernon (P)
J Sheahan SC and M J Heath (D)

SOLICITORS: Michie, Shehadie & Co (P)
McConnell Jaffray (D)

CATCHWORDS: CHURCHES [10]- Proceedings to enforce church trusts- Whether security for costs should be ordered. PROCEDURE [665]- Security for costs- Church case- Those behind Bishop supporting his claim ought to provide guarantee for costs as if case relator suit.

LEGISLATION CITED: Charitable Trusts Act 1993, s 6
Supreme Court Rules Pt 53(2)

CASES CITED: Morris v Hanley [2000] NSWSC 957
Uniting Church in Australia Property Trust (NSW) v Monsen [1978] 1 NSWLR 575

DECISION: See para 17.

THE SUPREME COURT

OF NEW SOUTH WALES

EQUITY DIVISION

YOUNG CJ in Eq

FRIDAY 11 MAY 2001

3369/97 - METROPOLITAN PETAR & ANOR v MITRESKI & ORS

JUDGMENT (On application for security for costs)

1 HIS HONOUR: The present proceedings have been commenced by the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand and a member of the clergy of that church against a corporation and various individuals with respect to certain disputes over one of what might be called the parishes of the church.

2 The proceedings were commenced in 1997. There has been some time out for mediation which, unfortunately, was unsuccessful but they have not proceeded past the stage of the filing of a further amended statement of claim. No defence has yet been filed. The indications are, however, that when the matter is ready (and it would seem that the majority of the affidavit evidence has been prepared and filed), it will occupy some four weeks of hearing time.

3 The present motion is one by the defendants to require the plaintiffs to provide security for costs. That motion was originally filed in 1997. It was heard to an extent by another Judge, and interrupted by the mediation. Subsequently the other Judge, who is the trial Judge, considered it inappropriate for him to determine the matter. Accordingly, today the motion was called on before me and by consent the parties re-tendered material which was tendered before that other Judge, with some slight supplementation.

4 Security for costs is provided for under Pt 53 r 2 of the Supreme Court Rules 1970 and in addition, the court has an inherent power to order security for costs in order to provide a just procedure for the trial of issues.

5 The Rules provide that the court may order security where the plaintiff is ordinarily resident outside the State or…

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 414
Decision Date: 11 May 2001

CaseChat Overview and Summary

The case of Metropolitan Petar v Mitreski involved a dispute over church property and church trusts. The plaintiff, Metropolitan Petar, sought to enforce certain church trusts against the defendant, Mitreski. The case was heard in the court, where it was necessary to determine whether security for costs should be ordered in this church case. The primary issue before the court was whether individuals who were aligned with the Bishop and supporting his claim should provide a guarantee for costs, similar to the requirements in a relator suit.

The court considered the nature of church cases and the unique circumstances involved in enforcing church trusts. It examined whether the principles applicable to a relator suit, which generally require a guarantee for costs from those supporting the claim, should apply to this case. The court recognised the complexity of church cases and the potential financial implications for both parties. However, it also noted the importance of ensuring that the proceedings were fair and just for all parties involved. After careful consideration, the court decided that the principles of a relator suit should not be applied in this instance, and therefore, those behind the Bishop supporting his claim would not be required to provide a guarantee for costs.

The court's decision was based on a nuanced understanding of the specific circumstances of the case and the unique nature of church cases. It recognised the potential unfairness of requiring individuals aligned with the Bishop to provide a guarantee for costs, given the unique dynamics and potential financial implications involved in church property disputes. The court's ruling provided clarity on the application of security for costs in church cases, ensuring that the proceedings remained fair and just for all parties involved. The final orders of the court reflected its decision, and no security for costs was ordered in this instance.

Orders