Bishop Irinej Dobrijevic & Anor v Free Serbian Orthodox Church, Diocese for Australia & New Zealand Property Trust & Ors (No. 2) [2015] NSWSC 1976

Supreme Court New South Wales

Medium Neutral Citation: Bishop Irinej Dobrijevic & Anor v Free Serbian Orthodox Church, Diocese for Australia & New Zealand Property Trust & Ors (No. 2) [2015] NSWSC 1976 Hearing dates: 1 September 2015; 16 December 2015 Decision date: 24 December 2015 Jurisdiction: Equity Before: White J Decision: Refer to para [109] of judgment. Catchwords: TRUSTS – CHARITIES – CHURCHES AND RELIGIOUS ORGANISATIONS – settling terms of cy-près scheme for administration of charitable trust – competing schemes proposed by plaintiffs and defendants – whether proposed terms accord with, and give effect to, earlier reasons for judgment – whether proposed terms would be productive of conflict

TRUSTS – CHARITIES – indemnity out of trust assets for costs properly incurred – whether trustee should be deprived of its right of indemnity – trustee had obtained judicial advice that it would be justified in defending proceedings – trustee's conduct of its defence was not open to criticism – where trustee had been found to have committed a breach of trust, but that finding did not affect the resolution of the real issues in dispute – held that there was no reason to deprive the trustee of its right of indemnity

PRACTICE AND PROCEDURE – costs – whether defendants unreasonably declined to accept plaintiffs' open offer of compromise – whether plaintiffs bettered their offer – issues at trial were distinct but not severable in terms of evidence – large measure of plaintiffs' success was due to Attorney-General's submissions

PRACTICE AND PROCEDURE – application for a stay of orders pending an appeal – where orders will divest control of a monastery to a different religious organisation pursuant to a cy-près scheme –appeal raises arguable issues, and strong discretionary factors exist in favour of a stay – current religious organisation would suffer prejudice which would not be remedied by a successful appeal – whether the public interest in the administration of charitable trusts outweighs prejudice to the current religious organisation – stay granted Legislation Cited: Charitable Trusts Act 1993 (NSW) Trustee Act 1925 (NSW) Cases Cited: Bishop Irinej Dobrijevic & Anor v Free Serbian Orthodox Church, Diocese for Australia & New Zealand Property Trust & Ors [2015] NSWSC 637 Bunnings Forest Products Pty Ltd v Bullen (1994) 54 FCR 342 Kalifair Pty Ltd v Digi-Tech (Australia) Limited [2002] NSWCA 383; (2002) 55 NSWLR 737 Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of Macedonian Orthodox Diocese Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66 Radmanovich v Nedeljkovic [2001] NSWSC 492; (2001) 52 NSWLR 641 Roosters Club Inc v Northern Tavern Pty Ltd (No 2) [2003] SASC 143 Category: Procedural and other rulings Parties: Bishop Irinej Dobrijevic (1st Plaintiff) Serbian Orthodox Church in Australia and New Zealand Properties Ltd (2nd Plaintiff) Free Serbian Orthodox Church, Diocese for Australia & New Zealand Property Trust (1st Defendant) Branko Rupar (2nd Defendant) Ratomir Nesic (3rd Defendant) Ilija Cubrilo (4th Defendant) Petar Mandic (5th Defendant) Attorney-General of New South Wales (6th Defendant) Representation: Counsel: S A Glacken QC with P Herzfeld (Plaintiffs) G O Blake SC with W A D Edwards (1st-5th Defendants) N L Sharp with A Hochroth (6th Defendant)