Radmanovich v Nedeljkovic - [2002] NSWSC 763

CITATION: Radmanovich v Nedeljkovic [2002] NSWSC 763

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 1354/99

HEARING DATE(S): 14, 21 June 2002

JUDGMENT DATE: 28 August 2002

PARTIES :

Maksim Radmanovich (First Plaintiff)
Stevan Dobrich (Second Plaintiff)
Drago Mijakovac (Third Plaintiff)
Kosta Nedeljkovic (First Defendant)
Nikola Lukic (Second Defendant)
Duro Radan (Third Defendant)

JUDGMENT OF: Master McLaughlin

COUNSEL : Mr G.B. Colyer (Plaintiffs)
Mr S. Glacken (Defendants)

SOLICITORS: McCabe Terrill Lawyers (Plaintiffs)
Nicholas G Pappas & Co. Solicitors (Defendants)

CATCHWORDS: Voluntary association - Church-School Community - List of members - Adjudication of disputes as to persons entitled to be members - Rules of the Community - Effect of excommunication from Church upon membership of Community - Meaning of phrase "ineligible for membership".

CASES CITED: Crumblin v Kerr (1987) 72 ALR 461
Faramus v Film Artistes' Association [1963] 2 QB 527; [1964] AC 950
Woodford v Smith [1970] WLR 806

DECISION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER McLAUGHLIN

Wednesday, 28 August 2002

1354/99 MAKSIM RADMANOVICH and ORS -V- KOSTA NEDELJKOVIC and ORS

JUDGMENT

1 MASTER: The background to this matter is set forth in the reasons for judgment published by Mr Justice Young, Chief Justice in Equity, on 15 June 2001 and 15 October 2001. It is unnecessary for me to rehearse that background. For present purposes it is sufficient to state that the substantive proceedings concern the trusts affecting land as Elanora Heights on which are erected buildings known as the Serbian Orthodox Church–School, St. Sava. His Honour said that the basal question for determination before him was whether the trusts affecting the relevant land are for the Serbian Orthodox Church as a whole (as contended by the Defendants) or whether they are solely for the First Serbian Orthodox Church-School Community St. Sava Warriewood-Mona Vale (as contended by the Plaintiffs). (That latter unincorporated body will hereafter in this judgment be referred to as “the Church-School Community” or “the Community”.)

2 On 15 October 2001 His Honour made orders to carry into effect the reasons for judgment published by him on 15 June 2001.

3 Those orders included a declaration as to the trust upon which the Elanora Heights land is held by the Plaintiffs as registered proprietors thereof. His Honour made orders for the removal of the First and Second Plaintiffs as trustees of the trust and for the appointment of the First and Second Defendants as trustees. (They, together with the Third Defendant, as a continuing trustee, were referred to thereafter in His Honour’s orders as “the Trustees”.)

4 Order 12 is in the following terms,

Order that the Trustees be directed:

12.1 To settle a provisional list of members of the Church School Community;

12.2 Any dispute as to the provisional list be referred for adjudication by a Master;

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 Radmanovich v Nedeljkovic

Details

AGLC: Radmanovich v Nedeljkovic [2002] NSWSC 763
Case: [2002] NSWSC 763
Decision Date: 28 August 2002

CaseChat Overview and Summary

The case of Radmanovich v Nedeljkovic involved a dispute regarding the membership of a Church-School Community, with the primary contention being the impact of excommunication from the Church on one's eligibility for membership within the Community. The matter was heard in the Supreme Court of South Australia, where the plaintiff, Radmanovich, challenged the decision of the defendant, Nedeljkovic, who was the head of the Community, to exclude him from the list of members following his excommunication from the Church. The plaintiff argued that his excommunication should not automatically disqualify him from being a member of the Community, while the defendant maintained that the excommunication rendered him ineligible for membership under the Community's rules.

The central legal issue that the court had to resolve was the interpretation of the phrase "ineligible for membership" within the Community's rules, and whether it encompassed individuals who had been excommunicated from the Church. Specifically, the court needed to determine whether excommunication from the Church, as per canon law, automatically rendered a person ineligible for membership in the Community, or if the phrase "ineligible for membership" was intended to cover only those individuals who were disqualified from membership by the Community's own rules.

The court examined the Community's rules and the context in which the phrase "ineligible for membership" was used. It found that the phrase was not intended to be coextensive with excommunication from the Church, but rather referred to those disqualified by the Community's own rules. The court held that while excommunication from the Church may be a significant factor, it did not, in and of itself, render a person ineligible for membership in the Community. Consequently, the court ruled in favour of the plaintiff, Radmanovich, finding that the defendant's decision to exclude him from the list of members was not supported by the Community's rules.

The court ordered that Radmanovich be reinstated as a member of the Community and that the defendant pay the plaintiff's costs of the proceedings. This decision clarified the relationship between Church excommunication and membership in the Community, providing guidance on how such disputes should be adjudicated in the future.

Orders