New South Wales Supreme Court CITATION : Metropolitan Petar v Mitreski [2005] NSWSC 332 HEARING DATE(S) : 1 April 2005 JUDGMENT DATE : 1 April 2005 JURISDICTION : Equity JUDGMENT OF : Hamilton J DECISION : Restraint of payment of costs from trust fund revised. CATCHWORDS : EQUITY [172] - Trusts and trustees - Powers, duties, rights and liabilities of trustees - Indemnity, lien and reimbursement- In respect of legal costs and commission - Trustee defending proceedings for removal proposes to resort to trust assets for costs - Application to revise restraint of use of trust funds. His Grace Metropolitan Petar, the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand (P1) The Very Reverend Father Mitko Mitrev (P2) Lambe Mitreski (D1) Pero Damceski (D2) Boris Minovski (D3) PARTIES : Eftim Eftimov (D4) Mile Marcevski (D5) Macedonian Orthodox Community Church St Petka Incorporated (D6) Naum Despotovski (D8) Attorney General for State of NSW (D9) FILE NUMBER(S) : SC 3369/97 T G R Parker and R E Steele (Ps) COUNSEL : G O Blake SC (D1 - 6 & D8) V Colaluce (Solicitor) (D9) Sachs Gerace Lawyers (Ps) McConnell Jaffray (D1 - 6 & 8) SOLICITORS : I V Knight, Crown Solicitor (D9) LOWER COURT JURISDICTION : IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION HAMILTON J FRIDAY, 1 APRIL 2005 3369/97 HIS EMINENCE PETAR THE DIOCESAN BISHOP OF THE MACEDONIAN ORTHODOX DIOCESE OF AUSTRALIA & NEW ZEALAND & ORS v LAMBE MITRESKI & ORS JUDGMENT 1 HIS HONOUR: The point that has been made before me is a narrow one. The defendants have applied today by notice of motion for leave to add an additional exception (c) to order 1 made by me yesterday, 31 March 2005. As formulated in the notice of motion, that exception is of "reasonable legal costs of and incidental to opposing the relief claimed by the plaintiffs in their notice of motion filed on 14 March 2005 and any appeal therefrom". 2 The plaintiffs do not oppose a variation of the injunction in that form, but ask that I postpone the effect of the variation until 5 pm on Monday, 4 April 2005 - which is the next business day after today. That postponement is opposed by the defendants, who say that there is no reason why the order should not take effect at once, if Ms Colaluce on behalf of the Attorney General informs me that the Attorney General does not wish to make any submissions about that matter. I am informed that the Attorney General does not make any such submission. 3 It is said by Mr T G R Parker, of counsel for the plaintiffs, that the purpose of the delay is to permit communication to be made by his clients to the Bank, and that that will somehow improve chances of recovery of moneys if that is sought at a later time. It is put by Mr Blake, of Senior Counsel for the defendants, that it is important to have certainty and clarity at once, because it is intended to do work on this matter at the weekend which he and the solicitors are unwilling to do unless the injunction is varied in the manner which is sought. 4 Taking those matters into account, my decision is that I should make an order now varying the injunction as sought, and that I should decline to delay the operation of that order. 5 The order of the Court will be that order 1 of the Court made on 31 March 2005 be varied by the addition of a paragraph (c). Legal costs "of and incidental to" are now unknown to the law. The terms in which the variation will be made are that the paragraph (c) to be added should read "reasonable legal costs of opposing the relief claimed by the plaintiffs in their notice of motion filed on 14 March 2005 and any appeal therefrom." 6 Mr Parker asks that it be recorded that the plaintiffs did not intend by not opposing the variation to give up any rights they have in relation to any breach of trust constituted by any of the payments involved. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.