Macedonian Orthodox Community Church St Petka Incorporated v Metropolitan Petar [2013] NSWCA 223

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Macedonian Orthodox Community Church St Petka Incorporated v Metropolitan Petar [2013] NSWCA 223 Hearing dates: 20, 21, 22, 23 and 27 May 2013 Decision date: 18 July 2013 Before: Beazley P at [1] Macfarlan JA at [2] Emmett JA at [235] Decision: (1) Grant leave to the appellants to appeal. (2) Direct that within seven days of the date of this judgment, the appellants file and serve a Notice of Appeal in the form appearing under Tab 6 of the Appeal Papers. (3) Grant leave to Metropolitan Petar (otherwise known as Bishop Petar) and to Father Mitrev to appeal and cross-appeal. (4) Direct that within seven days of the date of this judgment, Bishop Petar and Father Mitrev file and serve Notices of Appeal and Cross-Appeal in the forms provided to the Court on 27 May 2013. (5) Dismiss the Association's appeal except to the extent that it challenged Brereton J's refusal to grant relief under s 85 of the Trustee Act. (6) Set aside Brereton J's order refusing relief to the Association under s 85 of the Trustee Act. (7) Order under s 85 of the Trustee Act that the Association be relieved from personal liability for its breaches of trust constituted by its payment of emoluments to Fathers Dzeparovski and Despotoski. (8) Allow the appeals of the Council Member appellants against order (1) made by Brereton J on 21 December 2012 in relation to the liability of the Council Members other than Mr Minovski as accessories to the Association's breaches of trust. (9) Set aside order (1) made on 21 December 2012. (10) Enter judgment for the Council Member defendants on Bishop Petar and Father Mitrev's claim that they are liable to account as accessories in relation to the Association's breaches of trust. (11) Otherwise dismiss the Council Member appellants' appeal. (12) Dismiss the Bishop and Father Mitrev's appeal and cross-appeal. (13) Direct that the parties file, in accordance with the following timetable, submissions concerning the costs orders made at first instance that should be set aside, the orders that should be made in respect of costs incurred at first instance and the costs orders that should be made concerning the applications for leave to appeal and cross-appeal and the appeals and cross-appeal: (a) The appellants to file and serve their submissions within seven days of the date of this judgment; (b) The respondents (including the Attorney-General) to file and serve their submissions within a further seven days; and (c) The appellants to file any submissions in reply within a further seven days. (14) Direct that none of the submissions so ordered exceed 10 pages in length and that the issue of what further orders should be made be determined by the Court on the basis of the written submissions directed to be filed. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: EQUITY - trusts and trustees - unincorporated association formed to purchase a site for a Macedonian Orthodox Church - association later incorporated under the Associations Incorporation Act 1984 - further property acquired by the association both before and after incorporation - whether the trust applicable to the church site and other property was one to permit it to be used by the association for a church and the promotion of the Macedonian Orthodox Religion - whether trust varied after its creation - whether trust extinguished on incorporation of the association - whether association breached trust by excluding bishop and his appointed priest, by itself appointing priests, by limiting membership of association and by other conduct - whether members of the association's council accessorially liable for the association's breaches of trust in paying emoluments to priests it appointed - whether association should be excused from breaches of trust under s 85 Trustee Act 1925