His Eminence Metropolitan Petar, Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand & Anor v The Macedonian Orthodox Community Church St Petka Incorporated & Anor (No 2) [2007] NSWCA 142

New South Wales Court of Appeal

CITATION: His Eminence Metropolitan Petar, Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand & Anor v The Macedonian Orthodox Community Church St Petka Incorporated & Anor (No 2) [2007] NSWCA 142

HEARING DATE(S): 25 July 2006

JUDGMENT DATE: 19 June 2007

JUDGMENT OF: Beazley JA at 1; Giles JA at 1; Hodgson JA at 1

DECISION: 1. The costs of the hearing at first instance are to be the plaintiffs' costs in the proceedings; 2. The first respondent is to pay the appellants' costs of the appeal; 3. The respondent is to have a certificate under the Suitors' Fund Act 1951 (NSW) if so entitled; 4. The question whether the Association should be entitled to have recourse to any part of the Schedule A property and the non-Schedule A property to pay the costs as ordered is referred to the trial judge to be determined at the conclusion of the proceedings.

CATCHWORDS: COSTS – costs of appeal from interlocutory application – whether costs of appeal should be plaintiff's 'costs in the cause' - COSTS – costs of successful appellant – effect on costs of appellant withdrawing proposed paragraph from Notice of Appeal and proposing alternate orders – whether appellant should only have 90 per cent of their costs - COSTS – Rule 42.7 Uniform Civil Procedure Rules 2005 (NSW) – costs of hearing at first instance – interlocutory injunction – whether on application for interlocutory injunction costs should be 'costs in the cause' - COSTS – Suitors' Fund Act 1951 (NSW) – application for a Suitors' Fund Certificate – rationale of legislation that mistake of court system not be visited on one party – whether conduct of respondent such that it should not be entitled to a Certificate - COSTS - Suitors' Fund Act 1951 (NSW) – whether appellant's costs should be limited to maximum amount payable under a Suitors' Fund Certificate - COSTS – whether costs of appeal should not become payable until conclusion of proceedings