Macedonian Orthodox Community Church St Petka Incorporated v Metropolitan Petar (No 2) [2013] NSWCA 385

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Macedonian Orthodox Community Church St Petka Incorporated v Metropolitan Petar (No 2) [2013] NSWCA 385 Hearing dates: On the papers Decision date: 18 November 2013 Before: Beazley P at [1] Macfarlan JA at [2] Emmett JA at [33] Decision: (1) Vary order (3) made by Brereton J on 21 December 2012 by substituting the percentage of 50 per cent for the percentage of 75 per cent and substituting the percentage of 10 per cent for the percentage of 25 per cent. (2) Set aside order made by Young CJ in Eq on 9 June 2009 insofar as it ordered that any of the Defendants pay costs to the Attorney-General of New South Wales. (3) Stay order (3) made by Brereton J on 21 December 2012, as varied, and also the costs orders made by Young CJ in Eq on 9 June 2009 against the Defendants until the earlier of the date upon which the Defendants' entitlement to indemnity from the trust assets is determined and a date appointed by a judge of the Equity Division for this stay to conclude. (4) Order the Association to pay 75 per cent of the Plaintiffs' costs of the appeal. (5) Order the Plaintiffs to pay 50 per cent of the Council Members' costs of the appeal. (6) In these orders, the term "Plaintiffs" refers to Bishop Petar and Father Mitrev and "Defendants" to the Macedonian Orthodox Community Church St Petka Incorporated and those members of its Council whom Brereton J found accessorially liable for breaches of trust. [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: COSTS - appeals and cross-appeals against a number of Equity Division judgments concerning a church trust - orders made in relation to costs incurred at first instance and on appeal Legislation Cited: Trustee Act 1925 Cases Cited: Brien v Australasian Memory Pty Ltd [2000] NSWSC 333; 34 ACSR 158 Category: Costs Parties: Macedonian Orthodox Community Church St Petka Incorporated (First Appellant) Lambe Mitreski (Second Appellant) Pero Damcevski (Third Appellant) Boris Minovski (Fourth Appellant) Eftim Eftimov (Fifth Appellant) Mile Marcevski (Sixth Appellant) Naum Despotoski (Seventh Appellant) His Eminence, Metropolitan Petar, Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand (First Respondent) Very Reverend Father Mitko Mitrev (Second Respondent) Attorney-General for the State of NSW (Third Respondent) Representation: Counsel: B W Walker SC/G E S Ng (Appellants) T G Parker SC/L Livingston (First and Second Respondents) M Izzo/T Prince (Third Respondent) Solicitors: McConnell Jaffray Lawyers (Appellants) Sachs Gerace Lawyers (First and Second Respondents) Crown Solicitor's Office (Third Respondent) File Number(s): CA 2007/265573; 2012/101767 Decision under appeal Jurisdiction: 9111 Citation: Metropolitan Petar v Mitreski [2003] NSWSC 262 - 4 April 2003 Metropolitan Petar v Mitreski [2005] NSWSC 330 - 31 March 2005 Metropolitan Petar v Mitreski [2009] NSWSC 106 - 4 March 2009 Metropolitan Petar v Mitreski [2012] NSWSC 16 - 3 February 2012 Metropolitan Petar v Mitreski [2012] NSWSC 167 - 5 March 2012 Metropolitan Petar v Mitreski [2012] NSWSC 1610 - 21 December 2012 Before: Hamilton J - 4 April 2003 and 31 March 2005 Young CJ in Eq - 4 March 2009 Brereton J - 3 February 2012; 5 March and 21 December 2012 File Number(s): SC 1997/3369; 1997/25609