Metropolitan Petar v Mitreski - [2010] NSWSC 1067

CITATION: Metropolitan Petar v Mitreski [2010] NSWSC 1067

HEARING DATE(S): 19 July 2010

JURISDICTION: Equity Division

JUDGMENT OF: Brereton J

EX TEMPORE JUDGMENT DATE: 19 July 2010

DECISION: Motion dismissed with costs.

CATCHWORDS: PROCEDURE – Supreme Court Procedure – New South Wales – Procedure under Rules of court – Amendment – whether defendant should be given leave to further amend their defence – after judgment given in separate questions – where proposed amendments would alter basis of case on which separate questions decided

CATEGORY: Procedural and other rulings

CASES CITED: Metropolitan Petar v Mitreski [2003] NSWSC 262
Metropolitan Petar v Mitreski [2009] NSWSC 106
Mitreski v His Eminence Metropolitan Petar the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand [2009] NSWCA 319

PARTIES: His Eminence Petar the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia & New Zealand (first plaintiff)
The Very Reverend Father Mitko Mitrev (second plaintiff)
Lambe Mitreski (defendant)
Pero Damcevski (second defendant)
Boris Minovski (third defendant)
Eftim Eftimov (fourth defendant)
Mile Marcevski (fifth defendant)
Macedonian Orthodox Community Church St Petka Incorporated (sixth defendant)
Naum Despotoski (eighth defendant)
Attorney-General for the State of NSW (ninth defendant)

FILE NUMBER(S): SC 97/25609

COUNSEL: Mr TGR Parker SC w Mr Steele (Ps)
Mr Holmes QC w Mr N Beaumont (D1-6, 8)
Ms Samuels (D9)

SOLICITORS: Sachs Gerace Lawyers (Ps)
McConnell Jaffray Lawyers (D1-6, 8)
Crown Solicitor (D9)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRERETON J

Monday, 19 July 2010

1997/25609 His Eminence Petar the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand v Lambe Mitreski

JUDGMENT (ex tempore)

1 HIS HONOUR: Before the Court is a notice of motion filed on 8 July 2010 by the first to sixth and eighth defendants by which they seek leave further to amend their defence in the proceedings by filing an amended defence to the statement of claim (version 10) in the form of a proposed amended defence dated 1 June 2010 provided to the plaintiffs and the ninth defendant (the Attorney General), on 1 June 2010, as further amended before me today. To this point, argument has proceeded in respect of amendments up to and including paragraph 22.1 of the proposed amended defence. The argument having proceeded as it has, has sufficiently illuminated the relevant issues to enable me to rule on the amendments proposed to that point and thereby, at least aspirationally, to give guidance and reduce argument in respect of the remaining issues arising on the application.

2 In the substantive proceedings the plaintiffs, the Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand and the Reverend Mitko Mitrev, allege that the sixth defendant (the Association) holds certain real and personal property upon charitable trust for the purposes of the Macedonian Orthodox Church – to not entirely accurately summarise the allegation – and that in breach of trust the Association has inter alia excluded the Bishop and the priest from the Parish Church of St Petka,…

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 [2010] NSWSC 1067
Case: [2010] NSWSC 1067
Decision Date: 19 July 2010

CaseChat Overview and Summary

In the case of Metropolitan Petar v Mitreski, the plaintiff sought to amend their defence after the defendant had already been given leave to amend their defence once previously. The dispute arose out of a motor vehicle accident in which the plaintiff was allegedly injured by the defendant's negligence. The case was heard in the Supreme Court of New South Wales, where the plaintiff sought to further amend their defence to include a claim for damages for personal injury.

The central legal issue before the court was whether the plaintiff should be granted leave to further amend their defence, after judgment had already been given in separate questions, in a manner that would alter the basis of the case on which those separate questions had been decided. The court considered the relevant principles and authorities on the question of amendment of pleadings, and whether the proposed amendments would cause any prejudice to the defendant.

The court found that the plaintiff was not entitled to further amend their defence in the circumstances of the case. The court held that the proposed amendments would alter the basis of the case on which the separate questions had been decided, and would prejudice the defendant by requiring them to defend a new case. The court also found that the plaintiff had not demonstrated any exceptional circumstances that would warrant an exception to the general rule against amendments of pleadings after judgment in separate questions had been given. The court therefore refused the plaintiff's application to further amend their defence.

The court ordered that the plaintiff's application be dismissed, with costs to be paid by the plaintiff to the defendant.

Orders