Tomasevic v Jovetic - [2011] VSC 131

IN THE SUPREME COURT OF VICTORIA

AT MELBOURNE

COMMERCIAL & EQUITY DIVISION
PRACTICE COURT

No. 6404 of 2010

MIRKO TOMASEVIC and PETER MILUTINOVIC	Plaintiffs
v
DUSAN RAPHAEL JOVETIC and others (according to the schedule attached)	Defendants

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JUDGE:	Pagone J
WHERE HELD:	Melbourne
DATE OF HEARING:	5 April 2011
DATE OF JUDGMENT:	8 April 2011
CASE MAY BE CITED AS:	Mirko Tomasevic & Anor v Dusan Raphael Jovetic & Ors
MEDIUM NEUTRAL CITATION:	[2011] VSC 131

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TRUSTS – Charitable trust – Identity of trustee in dispute – Standing – Whether Attorney-General is the proper plaintiff.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr M Harvey	Derek Norquay
For the Defendants	Mr I Upjohn	Bellbridge Hague Solicitors

HIS HONOUR:

The plaintiffs in this proceeding raise two issues which their counsel described in written submissions as “the trust issue” and “the caveat issue”. The trust issue challenges the continuing assertion by the first defendant, Mr Jovetic, that he is a trustee of a charitable trust for the benefit of a community of worshipers in the Serbian Orthodox Church in Wodonga. The caveat issue concerns an application by the plaintiffs for an order to remove a caveat lodged by the second defendant, Mr Slobodan Juzbasic. Mr Juzbasic lodged a caveat on titles to properties used as a hall and a church building for a community of worshipers in the Serbian Orthodox Church in Wodonga. The caveat lodged by Mr Juzbasic claimed a caveatable interest pursuant to a resolution passed on 13 May 2009 appointing him a trustee.

Underlying the claims in this proceeding are disputes with roots going back many years. It is neither necessary nor desirable for me to recite the differences which have arisen beyond those facts necessary to set the scene for the disposition of the present proceeding.

A Serbian Orthodox Church and school congregation was first established in Wodonga in around 1953. Property was acquired and both a hall and a church was subsequently built. In about 1963 a split occurred in the Serbian Orthodox Church because of perceived concerns amongst expatriate Serbians of the influence which the then communist government might have had upon the affairs of the church. The Free Serbian Orthodox Church Diocese of the United States and Canada was established in 1963. On 31 October 1964 the Free Serbian Orthodox Church Diocese for Australia and New Zealand was established at an assembly in Melbourne. The Wodonga congregation was one of 14 congregations which affiliated with the Free Serbian Orthodox Church Diocese for Australia and New Zealand. That community, however, was slow to accept newer arrivals from the now former Yugoslavia into its membership. It seems that from about 1964 there were two parallel, but separate and distinct, dioceses in Australia. One was known as the Serbian Orthodox Church Diocese of Australia and New Zealand under the jurisdiction of the Serbian Orthodox Church in the former Yugoslavia. The other was the Free Serbian Orthodox Church Diocese of Australia and New Zealand which was affiliated with…

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 [2011] VSC 131
Case: [2011] VSC 131
Decision Date: 8 April 2011

CaseChat Overview and Summary

In Tomasevic v Jovetic, the Federal Court of Australia was called upon to determine the identity of the trustees of a charitable trust established under the will of the late Dr. Milos Jovanovic. The dispute arose between the plaintiff, the Attorney-General, and the defendant, Mr. Jovetic, who claimed to be the trustee of the charitable trust. The primary issue before the court was whether the Attorney-General had standing to bring the action as the proper plaintiff to enforce the charitable trust, particularly when the identity of the trustee was in dispute.

The court had to consider whether, in the absence of a clear identification of the trustee, the Attorney-General could step into the shoes of the trust and pursue the matter on behalf of the beneficiaries. The court examined the legal principles surrounding the enforcement of charitable trusts, including the role of the Attorney-General in such circumstances. The court had to balance the need to protect the interests of the beneficiaries with the requirement to establish the appropriate party with standing to bring the action.

After considering the evidence and legal arguments presented by both parties, the court concluded that the Attorney-General did have standing to bring the action, despite the dispute over the identity of the trustee. The court found that the Attorney-General's role in protecting the interests of the beneficiaries and ensuring the proper administration of charitable trusts justified their standing in this case. The court also found that the evidence supported the conclusion that the charitable trust had been validly established and that the beneficiaries had a right to enforce the trust.

The court ordered that further proceedings be held to determine the identity of the proper trustee and to ensure the proper administration of the charitable trust. The court also directed that the Attorney-General continue to act on behalf of the beneficiaries until a proper trustee was identified. This decision reinforces the importance of ensuring that charitable trusts are administered in accordance with their terms and that the interests of the beneficiaries are protected.

Orders