His Eminence Petar the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand v Kotevich [2014] NSWSC 1215

Supreme Court New South Wales

Medium Neutral Citation: His Eminence Petar the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand v Kotevich [2014] NSWSC 1215 Hearing dates: 19 - 23, & 26 - 30 May & 6 June 2014; written submissions 30 June, 25 July, 15, 20 & 29 August 2014 Decision date: 02 September 2014 Jurisdiction: Equity Division - Expedition List Before: Stevenson J Decision: Proceedings dismissed Catchwords: EQUITY - estoppel -whether defendant and Represented Persons are bound by decisions in earlier proceedings - whether previous declarations and orders are in rem - whether a privity of interest exists between the defendant (and the Represented Persons) and the Association (a defendant in the earlier proceedings) - whether order should be made under s 70 of the Civil Procedure Act 2005; TRUSTS AND TRUSTEES - terms of the trust - charitable trusts - proper construction of the Constitution and Diocesan Statute of the Macedonian Orthodox Church - whether it is a term of the trust declared in the 1997 proceedings that membership of the Parish Assembly, and thus the Association, depends on nomination in the parish register - whether parish register purportedly maintained by second defendant compliant with Constitution; EQUITY - whether relief should be denied on a discretionary basis - whether plaintiffs have clean hands - whether false evidence given in these proceedings and in earlier proceedings - whether false evidence directly and immediately related to equity sought Legislation Cited: Associations Incorporation Act 1984 Civil Procedure Act 2005 Evidence Act 1995 Uniform Civil Procedure Rules 2005 Cases Cited: Ajkay v Hickey & Co Pty Limited [2011] NSWSC 822 Brandling v Weir [2003] NSWSC 723 Champerslife Pty Ltd v Manojlovski & Anor [2010] NSWCA 33; (2010) 75 NSWLR 245 Clegg v Abel (1898) 14 WN(NSW) 131 Effem Foods Pty Ltd v Trawl Industries of Australia Pty Ltd (Receivers and Managers Appointed) (in liq) (1993) 43 FCR 510 Lazarus-Barlow v Regent Estates Co Ltd [1949] 2 KB 465 Macedonian Orthodox Community Church St Petka Inc v Metropolitan Petar [2013] NSWCA 223 Metropolitan Petar v Mitreski [2003] NSWSC 262 Metropolitan Petar v Mitreski [2009] NSWSC 106 Metropolitan Petar v Mitreski [2012] NSWSC 16 Metropolitan Petar v Mitreski [2012] NSWSC 167 Ramsay v Pigram (1968) 118 CLR 271 Trawl Industries of Australia Pty Ltd (In liq) v Effem Foods Pty Ltd (1992) 36 FCR 406 Texts Cited: Halsbury's Laws of England, vol 26 J D Heydon, Cross on Evidence, (8th Aust ed, 2009) J Phipson, On Evidence, (18th ed, 2013) R P Meagher, J D Heydon and M J Leeming, Meagher, Gummow & Lehane "Equity: Doctrines and Remedies" (4th ed, 2002) Spencer Bower and Handley, Res Judicata, (4th ed, 2009) Category: Principal judgment Parties: His Eminence Petar the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand (First Plaintiff) The Very Reverend Father Mitko Mitrev (Second Plaintiff) Peter Kotevich (Defendant) Representation: Counsel: T G R Parker SC with L Livingston (Plaintiffs) J Horowitz (Defendant) Solicitors: Sachs Gerace Lawyers (Plaintiffs) Horowitz & Bilinsky Pty Ltd (Defendant) File Number(s): SC 2013/378817