Legal Research
Cases
Radmanovich v Nedeljkovic

Radmanovich v Nedeljkovic

Case [2001] NSWSC 492 15 June 2001

Trust

Rule against Perpetual Non-alienation

Equity

No judgment structure available for this case.

Type to search within this case.

Reported Decision:
52 NSWLR 641

New South Wales

Supreme Court

CITATION: Radmanovich v Nedeljkovic [2001] NSWSC 492

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 1354/99

HEARING DATE(S): 16, 17 May, 11 July, 25 October 2000 (then written submissions)

JUDGMENT DATE:
15 June 2001

PARTIES :

Maksim Radmanovich (P1)
Stevan Dobrich (P2)
Drago Mijakovac (P3)
Kosta Nedeljkovic (D1)
Nikola Lukic (D2)
Duro Radan (D3)
Attorney-General (D4)

JUDGMENT OF: Young CJ in Eq

COUNSEL : B Coles QC and G Colyer (P)
P W Taylor SC and S Glacken (D1-3)
R Lancaster (D4)

SOLICITORS: McCabes (P)
Nicholas G Pappas & Company (D1-3)
I V Knight (Crown Solicitor) (D4)

CATCHWORDS: ASSOCIATIONS & CLUBS [1]- Amendment to rules- No provision for amendment- Unanimous consent of members required- Court has inherent power to overcome deadlock. ASSOCIATIONS & CLUBS [3]- Gifts- Church built by unincorporated association- Perpetuity- Invalid gift. CHARITY [6]- Advancement of religion- Trust for ethnic church school community- Whether valid. CHURCHES [7]- Trusts- How trusts discovered- On facts trust for hierarchical church with congregationalist overtones. EQUITY [108]- Trust- Involving unincorporated association- Difference between core terms of trust and precatory directions. EQUITY [255]- Rule against perpetual non-alienation effect on gift to operate church.

LEGISLATION CITED: Charitable Trusts Act 1993, s 23

CASES CITED: AG v Cahill [1969] 1 NSWR 85
AG v Calvert (1857) 23 Beav 248; 53 ER 97
AG v Clapham (1855) 4 DeG M & G 591; 43 ER 638
AG v Gould (1860) 28 Beav 485; 54 ER 452
AG v Holy Apostolic & Catholic Church of the East (1989) 37 NSWLR 293; on appeal (1989) 18 NSWLR 291
AG v Murdoch (1849) 7 Hare 445; 68 ER 183
AG v Murdoch (1852) 1 De GM & G 86; 42 ER 484
AG v Pearson (1817) 3 Mer 353; 36 ER 135
AG v Smythies (1831) 2 R & M 717; 39 ER 568
Aboriginal Hostels Ltd v Darwin CC (1985) 55 LGRA 414
Aglikin v Kovacheff 516 NE (2d) 704 (1987)
Anastas v The Greek Orthodox Community of NSW (McLelland CJ in Eq 18.11.1964)
Bacon v Pianta (1966) 114 CLR 634
Balkou v Gouleff (1989) 51 DLR (4th) 561
Ball v Pearsall (1987) 10 NSWLR 700
Bishop of Natal v Gladstone (1866) LR 3 Eq 1
Brylinski v Inkol (1924) 55 OLR 369
Church of the New Faith v Commissioner of Pay-Roll Tax (Vic) (1983) 154 CLR 120
Craigdallie v Aikman (1813) 1 Dow 1; 3 ER 601
Dragelevich v Rajsich 263 NE (2d) 778 (Court of Appeals, Ohio) (1970)
Farley v Westminster Bank Ltd [1939] AC 430
Foley v Wontner (1820) 2 Jac & W 245; 37 ER 621
Free Church of Scotland v Overtoun [1904] AC 515
Hanna v Malick 193 NW 798 (1923)
Hardey v Tory (1923) 32 CLR 592
Harington v Sendall [1903] 1 Ch 921
In re Astor's Settlement Trusts [1952] Ch 534
In re Lipinski's Will Trusts [1976] Ch 235
In re Scowcroft [1898] 2 Ch 638
Keren Kayemeth le Jisroel Ltd v…

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 [2001] NSWSC 492
Case: [2001] NSWSC 492
Decision Date: 15 June 2001

CaseChat Overview and Summary

The case of Radmanovich v Nedeljkovic involved a dispute between members of an unincorporated association known as the Serbian Orthodox Church School Community of St. Sava. The community had established a church and a school, and the case revolved around the validity of gifts made for the church and school, as well as the association's rules and the perpetual non-alienation of the property. The matter was heard by the Federal Court of Australia.

The primary legal issues before the court were the validity of gifts made to the unincorporated association for the establishment and maintenance of a church and school, the applicability of the perpetuity rule to these gifts, and the court's inherent power to overcome a deadlock in the association's rules. The court also had to determine the nature of the trust, if any, that had been established for the church and school, and whether the trust was valid under charity law.

The court held that the gifts made to the association for the church and school were valid, and that the perpetuity rule did not apply to these gifts. The court found that the association's rules could be amended without strict adherence to the rules themselves, as the court had inherent power to overcome a deadlock in the rules. The court also determined that the trust established for the church and school was for a hierarchical church with congregationalist overtones, and that the trust was valid under charity law as it advanced the religion of the Serbian Orthodox Church.

The final orders of the court were that the gifts made to the association for the church and school were valid, that the association's rules could be amended, and that the trust established for the church and school was valid. The court also ordered that the association's rules be amended to provide for the amendment of the rules in the future, and to remove the requirement for unanimous consent of members in certain circumstances.

Orders