Application of Macedonian Orthodox Community Church St Petka Inc [2023] NSWSC 918

Supreme Court New South Wales

Medium Neutral Citation: Application of Macedonian Orthodox Community Church St Petka Inc [2023] NSWSC 918 Hearing dates: 27 July 2023 Date of orders: 27 July 2023 Decision date: 27 July 2023 Jurisdiction: Equity Before: Meek J Decision: Judicial advice given that applicant justified in settling the proceedings Catchwords: JUDICIAL ADVICE — Application for judicial advice pursuant to s 63 of the Trustee Act 1925 (NSW) (Trustee Act) — Association involved in long-running main proceedings and other associated litigation regarding custodianship of trust property — Solicitors acting for the Association had secured their costs by mortgage in respect of property found to be trust property — Costs were assessed and issues arose regarding the solicitors' entitlement to payment of costs in particular whether the solicitors knew at the time the mortgage was granted that the land was held by the Association as trustee of such trust and knowingly assisted the Association to breach its duties — Solicitors strongly disputed any breach or wrongdoing — Association authorised by Attorney General to commence proceedings to recover from the solicitors monies paid — Attorney General strongly recommended the parties mediate — Following mediation the parties reached a resolution — Association sought advice of the Court as to whether it was justified in settling the proceedings JUDICIAL ADVICE — Principles discussed — Discussion regarding application for advice as to settlement of proceedings ORDERS — Construction of Court orders — Issue as to whether interlocutory restraining order still operative — In giving advice the Court considers it appropriate to proceed on the basis that the proper construction of the order for dismissal of proceedings had the effect of being a "further order" bringing to an end the operation of the interlocutory restraining order TRUSTEES — Judicial advice — Discussion regarding general principles concerning indemnity and whether the existence of allegations of breach regarding trustees precludes the giving of advice — The fact that the conduct allegedly constituting the breach of trust has already occurred is not a definitive answer to the question as to whether the Court ought to give advice — There is no requirement in providing judicial advice that questions regarding a trustee's conduct must necessarily be litigated — The enquiry in an advice application is not into whether a breach of trust has occurred or would occur. The enquiry is instead narrower, namely whether it would be reasonable for the trustee to take a suggested step of settlement — Advice given that Association justified in settling proceedings, paying the settlement sum out of the assets of the charitable trust and being indemnified from the assets for its cost of the proceedings Legislation Cited: Charitable Trusts Act 1993 (NSW) Trustee Act 1925 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: ACES Sogutlu Holdings Pty Ltd (in liq) v Commonwealth Bank of Australia (2014) 89 NSWLR 209; [2014] NSWCA 402 Alsop Wilkinson (a firm) v Neary [1996] 1 WLR 1220 Application of Doolan [2023] NSWSC 320 Application of Macedonian Orthodox Community Church St Petka Inc (No 3) [2006] NSWSC 1247 Armitage v Nurse [1998] Ch 241 Barnes v Addy (1874) LR 9 Ch App 244 Bullas v Public Trustee [1981] 1 NSWLR 641 Carter Holt Harvey Woodproducts Australia Pty Ltd v The Commonwealth (2019) 268 CLR 524; [2019] HCA 20 Commissioner of Stamp Duties (NSW) v Buckle (1998) 192 CLR 226; [1998] HCA 4 Frost v Bovaird (2012) 203 FCR 95; [2012] FCAFC 60 Gonzales v Claridades (2003) 58 NSWLR 188; [2003] NSWSC 508 Gonzales v Claridades (2003) 58 NSWLR 211; [2003] NSWCA 227 His Eminence Petar the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand v Kotevich [2014] NSWSC 1215 His Eminence Petar the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand v Lambe Mitreski [2018] NSWSC 13 Hodges v Waters (No 7) (2015) 232 FCR 97; [2015] FCA 264 Kirwan v Cresvale Far East Ltd (in liq) [2002] NSWCA 395; (2002) 44 ASCR 21 Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42 Macedonian Orthodox Community Church St Petka Incorporated v Metropolitan Petar [2013] NSWCA 223 Macrae v Walsh (1927) 27 SR (NSW) 290 Metropolitan Petar v Mitreski [2003] NSWSC 262 Metropolitan Petar v Mitreski [2012] NSWSC 167 Re Perpetual Trustee Company Limited as trustee for the Joseph Babington Davis Settlement [2020] NSWSC 1574 Robert Peter Campbell ATF the Joan Macpherson Trust and the Banandra Pastoral Settlement Trust [2016] NSWSC 1751 Simpson v Trust Company Fiduciary Services Limited [2009] NSWSC 912 TFML Ltd v MacarthurCook Fund Management Ltd [2013] NSWCA 291; (2013) 31 ACLC 13-046 Wilcox v Poole [1974] 2 NSWLR 693 Texts Cited: Sydney Williams and Frank Guthrie-Smith, Daniell's Chancery Practice (8th ed, 1914, Stevens & Sons Ltd) Category: Principal judgment Parties: Macedonian Orthodox Community Church St Petka Inc (Plaintiff) Keith Stevens McConnell (First Defendant) Penelope Carolyn Jaffray (Second Defendant) Representation: Counsel: E Walker (Plaintiff) E Cowpe (Defendants)