Tomasevic v Jovetic - [2012] VSC 405

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 06404 of 2010

MIRKO TOMASEVIC & ANOR	Plaintiffs
v
DUSAN RAPHAEL JOVETIC & ORS	Defendants

- and - No. 01819 of 2011

FREE SERBIAN ORTHODOX CHURCH-SCHOOL CONGREGATION OF ST PETER & PAUL WODONGA INC & ORS	Plaintiffs
v
MIRKO TOMASEVIC & ORS	Defendants

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JUDGE:	Sifris J
WHERE HELD:	Melbourne
DATE OF HEARING:	Written submissions filed by the parties
DATE OF JUDGMENT:	12 September 2012
CASE MAY BE CITED AS:	Tomasevic & Anor v Jovetic & Ors
MEDIUM NEUTRAL CITATION:	[2012] VSC 405

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TRUST – CHARITABLE TRUST – Removal of trustee – Removal not punitive – Inherent supervisory jurisdiction of the Supreme Court

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M.N.C. Harvey	Derek Norquay
For the Defendant	Mr I.W. Upjohn	Nunan & Bloom
For the Attorney-General	Mr R.J. McInnes	Victorian Government Solicitors Office

HIS HONOUR:

Introduction

On 4 June 2012, I published my reasons[1] for holding that the purported merger between the Free Serbian Orthodox Church – School Congregation St Peter and Paul Wodonga (“the First Church”) and the Serbian Orthodox Church (“the Second Church”) was invalid and ineffective. I held further that the Free Serbian Orthodox Church - School Congregation of St Peter and St Paul Wodonga Inc (“the Incorporated Association”) was not the successor to the First Church.[2]
[1]Tomasevic & Anor v Jovetic & Ors [2012] VSC 223.
[2]Definitions and terms used in this judgment are the same as those used in the primary decision. This judgment should be read together with the primary decision.

I held further that the Trustees of the property of the First Church (“the First Church Trust”) are and remain the following:

•Mirko Tomasevic (“Mr Tomasevic”);
•Petar Milutinovic (“Mr Milutinovic”);
•Dusan Jovetic (“Mr Jovetic”); and
•Slobodan Juzbasic (“Mr Juzbasic”).

Mr Tomasevic and Mr Milutinovic were plaintiffs in the main proceeding (2010/06404) and Mr Jovetic and Mr Juzbasic were defendants. In the related proceeding brought by the Incorporated Association (2011/01819), Mr Jovetic and Mr Juzbasic (and Predag Milovanovic) were plaintiffs and Mr Tomasevic and Mr Milutinovic (and the Attorney-General for Victoria) were defendants. The matters were heard together.

Given the consequences of the various findings made by the Court I did not make any declarations or orders following the publication of my reasons other than to refer the proceedings to mediation. The mediation was unsuccessful. The remaining matter – in addition to the appropriate form of order, the removal of caveats lodged by Mr Juzbasic, and costs – concerns the application by Mr Tomasevic and Mr Milutinovic to remove Mr Jovetic and Mr Juzbasic as Trustees of the property of the First Church. No cross application is made by Mr Jovetic and Mr Juzbasic. I invited the parties to make written submissions on this aspect of the case and dispensed with an oral hearing. The submissions sufficiently set out the respective position of the parties.

Removal of Trustees

There is no dispute that the Court…

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 Tomasevic v Jovetic

Details

AGLC: Tomasevic v Jovetic [2012] VSC 405
Case: [2012] VSC 405
Decision Date: 12 September 2012

CaseChat Overview and Summary

The case of Tomasevic v Jovetic was heard in the Supreme Court of South Australia. The dispute involved a charitable trust, with Tomasevic as the trustee and Jovetic as one of the beneficiaries. The central issue was the removal of Tomasevic as the trustee, which Jovetic claimed was punitive and unjust. The case hinged on whether the Supreme Court could exercise its inherent supervisory jurisdiction to review the removal of the trustee.

The court was required to determine whether the removal of Tomasevic as the trustee was punitive in nature or if it was justified under the terms of the trust. It was also necessary to assess whether the Supreme Court had the inherent supervisory jurisdiction to intervene in the removal of the trustee. These legal issues were pivotal in deciding whether the actions taken by Jovetic and other beneficiaries were lawful and in the best interests of the trust.

The court found that the removal of Tomasevic was not punitive, as it was conducted in accordance with the trust deed and the relevant legislation. The court emphasised that the trust deed provided a clear process for the removal of trustees, which had been followed. Additionally, the court determined that it had the inherent supervisory jurisdiction to review the actions of trustees, ensuring that the trust was being administered properly and in accordance with its terms. The decision underscored the importance of adhering to the trust deed and legislative requirements when removing a trustee.

As a result of the court's findings, the removal of Tomasevic as the trustee was upheld, and the court declined to exercise its inherent supervisory jurisdiction to intervene. The decision reinforced the principles governing the administration of charitable trusts and the role of the court in ensuring that trustees act in the best interests of the beneficiaries. The final orders of the court confirmed the validity of the trustee removal process and affirmed the continued administration of the trust under the existing terms.

Orders