Macedonian Orthodox Community Church St Petka Incorporated v Metropolitan Petar [2008] NSWCA 165

New South Wales Court of Appeal

CITATION: Macedonian Orthodox Community Church St Petka Incorporated v Metropolitan Petar [2008] NSWCA 165

HEARING DATE(S): 11 July 2008

JUDGMENT DATE: 11 July 2008

JUDGMENT OF: Allsop P at 32, 38; Campbell JA at 1, 33

EX TEMPORE JUDGMENT DATE: 11 July 2008

(1) Application for leave to appeal dismissed. DECISION: (2) Applicant to pay the costs of the First and Second Respondents. (3) Reserve to the trial judge the question of whether an order should be made under UCPR 42.25 concerning the costs so ordered to be payable.

CATCHWORDS: PRACTICE AND PROCEDURE – application for leave to appeal – whether proposed appeal has sufficient prospects of success to warrant grant of leave – whether arguable case that primary judge made appealable error – costs of application for leave to appeal – where respondents seek order under r 42.25 Uniform Civil Procedure Rules that costs of application not be paid out of trust assets – where question of whether proceedings brought in proper execution of trust will depend on outcome of ultimate proceedings

LEGISLATION CITED: Charitable Trusts Act 1993

Australian Securities and Investments Commission in the matter of GDK Financial Solutions Pty Limited v GDK Financial Solutions Pty Limited (in liquidation) (No 4) [2008] FCA 858 Brimaud v Honeysett Instant Print Pty Limited (19 September 1988, unreported) CASES CITED: House v R (1936) 55 CLR 499 Metropolitan Petar v Macedonian Orthodox Community Church of St Petkar Incorporated [2006] NSWCA 277 Metropolitan Petar v Mitreski [2008] NSWSC 243