Smolonogov v Our Lady of Kazan Russian Community of Lidcombe Inc [2020] NSWSC 1484

Supreme Court New South Wales

Medium Neutral Citation: Smolonogov v Our Lady of Kazan Russian Community of Lidcombe Inc [2020] NSWSC 1484 Hearing dates: 18 August 2020 Date of orders: 30 September 2020 Decision date: 30 September 2020 Jurisdiction: Equity Before: Rein J Decision: See [28]-[29] Catchwords: CHARITIES AND NOT-FOR-PROFITS – Charitable gifts and trusts – Cy-près scheme – Trust property – Dispute between two rival factions within the Russian Orthodox Church over use of charitable trust property; the church administering the trust property was originally controlled by the plaintiffs' faction, but the church later came under the control of the defendants' faction; the statement of claim and cross claim were substantially resolved at mediation but the Court was required to consider whether to approve a cy-près scheme which would allow the trust property to be administered by the church under the control of the new faction – Where it was agreed before the Court that the trust was a charitable trust – Where the need for a cy-près scheme was agreed between the parties, including the Attorney-General, and where the text of the cy-près scheme had been agreed – Where the Court was satisfied that the trust was charitable and that a cy-près scheme was justified given that the original purposes of the trust had ceased to provide a suitable and effective method of using the trust property, having regard to the spirit of the trust – Where the Court required some amendments to be made to the cy-près scheme to make it more workable. CHARITIES AND NOT-FOR-PROFITS – Administration and control by the court – Attorney-General's role as protector of charities – Joinder – Where the parties agreed that the trust was charitable and that the Attorney-General should be joined. Legislation Cited: Charitable Trusts Act 1993 (NSW) Cases Cited: Attorney General for New South Wales v Fred Fulham [2002] NSWSC 629 Estate of Polykarpou; Re a Charity [2016] NSWSC 409; (2016) 16 ASTLR 400 Forrest v Attorney-General (Vic) [1986] VR 187 Free Serbian Orthodox Church Diocese for Australia and New Zealand Property Trust v Bishop Irinej Dobrijevic [2017] NSWCA 28; (2017) 94 NSWLR 340 Income Tax Special Purposes Commissioners v Pemsel [1891] AC 531 National Anti-Vivisection Society v Inland Revenue Commissioners [1948] AC 31 Perpetual Trustee Company Ltd v Attorney General for the State of New South Wales (The Will of the Hon George Nesbitt) [2018] NSWSC 1456; (2018) 17 ASTLR 126 Re Lepton's Charity [1972] Ch 276 Roman Catholic Archbishop of Melbourne v Lawlor [1934] HCA 14; (1934) 51 CLR 1 Ubiparipovic v Vucicevic [2018] NSWSC 1583 Texts Cited: Nil Category: Principal judgment Parties: Mark Smolonogov (First Plaintiff / First Cross-Defendant) Father Sergii Medetskyi (Second Plaintiff) Archbishop Tikhon Pasechnik (Second Cross-Defendant) Our Lady of Kazan Russian Community of Lidcombe Incorporated (Inc 9892165) (First Defendant / First Cross-Claimant) Vladimir Leschev (Second Defendant) Nonna Yachmennikov (Third Defendant) Alexis Olson (Fifth Defendant / Second Cross-Claimant) Elisabeth Leschev (Sixth Defendant / Third Cross-Claimant) Vera Shulgin (Seventh Defendant / Fourth Cross-Claimant) Representation: Counsel: Dr G. O'Shea (Plaintiffs) Mr S. Y. Reuben (Defendants) Mr H. El-Hage (NSW Attorney-General)