Metropolitan Petar & 1 Or v Macedonian Orthodox Community Church St Petka Incorporated & 7 Ors [2007] NSWCA 263

New South Wales Court of Appeal

CITATION: Metropolitan Petar & 1 Or v Macedonian Orthodox Community Church St Petka Incorporated & 7 Ors [2007] NSWCA 263

HEARING DATE(S): 24/09/07 JUDGMENT OF: Beazley JA; Giles JA; Ipp JA

EX TEMPORE JUDGMENT DATE: 24 September 2007

DECISION: (1) The application for leave to appeal made by the plaintiffs is stood over until final judgment in the trial is delivered. (2) The costs of such application is stood over with liberty to apply should the matter be resolved without final judgment being so delivered. (3) The application for leave to cross-appeal made by the first to seventh defendants is dismissed with costs. (4) The sixth defendant not be permitted to have recourse to the Schedule A property in respect of any costs of the application for leave to cross-appeal. (5) The first to seventh defendants' application to extend time to file a cross-appeal as of right be stood over until final judgment is delivered. (6) The costs of such application is stood over with liberty to apply should the matter be resolved without final judgment being so delivered. (7) The matter be remitted to Young CJ in Eq to make whatever practical arrangements are deemed fit for the future conduct of the trial. (8) Parties to bring in short minutes of order with seven days of judgment reflecting the orders made by the Court.

CATCHWORDS: APPEAL – leave to appeal – application for leave to appeal against wording of various declarations made by trial judge – leave to appeal refused until after the trial has been conducted – proposed appeal would lead to further delay and would involve considering the trial judge's determinations on the evidence – costs of application also stood over with liberty to apply should matter be resolved without final judgment being delivered – application for leave to cross-appeal – competency – whether application was incompetent on the ground that the defendants sought not to appeal against a decision of the court but, rather, against reasons (or findings in the reasons) – whether various findings of the trial judge were appealable pursuant to s 103 of the Supreme Court Act 1970 (NSW) – trial judge's findings in this case did not constitute 'decisions' as that term is understood under s 103 – National Employers Mutual General Insurance Association Limited v Manufacturers Mutual Insurance Limited (1988) 17 NSWLR 223 considered – application for leave to cross-appeal dismissed with costs – no recourse to trust property by the sixth defendant – application to cross-appeal as of right – application for extension of time not granted and stood over until final judgment is delivered – costs of application reserved and also stood over with liberty to apply should the matter be resolved without final judgment being delivered . ND