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 Inc (No 2) [2007] NSWCA 287

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 Inc (No 2) [2007] NSWCA 287 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): On written submissions

JUDGMENT DATE: 23 October 2007

JUDGMENT OF: Giles JA at 1; Hodgson JA at 17; Ipp JA at 18

DECISION: (1) The Association is required to pay the costs of Bishop Petar and Father Mitrev in relation to the appeal. (2) The Association is entitled to be reimbursed out of the Schedule A property for the balance of its costs incurred in conducting the appeal (being those it is required to pay Bishop Petar and Father Mitrev and those it incurred itself) after taking into account any monies that may be paid to it under the Suitors' Fund Act 1951 (NSW). (3) The Association is entitled to a certificate under the Suitors' Fund Act 1951 (NSW) if otherwise qualified. (4) Bishop Petar and Father Mitrev are required to pay the Association's costs of the application for leave to appeal against the orders made on 7 May 2004 and 10 June 2005. (5) The matter is remitted to the trial judge to determine the costs of the trial and any other related costs that might be affected by this Court's judgment in [2007] NSWCA 150.

CATCHWORDS: COSTS – appeal – costs of appeal of appellants – whether the unsuccessful trustee (the Association) is entitled to be indemnified out of trust assets or must pay the successful appellants' costs of the appeal personally – costs of appeal of Association – whether the Association is entitled to be indemnified out of trust assets in respect of its own costs of the appeal – question as to whether ss 93(2) and (3) of the Trustee Act 1925 (NSW) apply to the question of a trustee's indemnification for costs out of trust assets or whether that issue is governed by s 59(4) of the Trustee Act and Pt 42 r 25 of the Uniform Civil Procedure Rules 2005 (NSW) – s 59(4) is a provision of general application, does not concern the costs to be awarded in litigation involving trustees and is usually relied upon in declaratory proceedings – ss 93(2) and (3) of the Trustee Act concern costs to be awarded in litigation involving trustees and govern the Court's power to order costs of the kind now in issue – whether ss 93(2) and (3) are limited by Pt 42 r 25 of the Uniform Civil Procedure Rules – whether, assuming Pt 42 r 25 applies, the Association acted unreasonably in seeking judicial advice, or acted for its own benefit rather than for the benefit of the trust - COSTS – costs of trial – issues remitted to the trial judge for determination. D