Free Serbian Orthodox Church Diocese for Australia and New Zealand Property Trust v Bishop Irinej Dobrijevic (No 3) [2017] NSWCA 109

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Free Serbian Orthodox Church Diocese for Australia and New Zealand Property Trust v Bishop Irinej Dobrijevic (No 3) [2017] NSWCA 109 Hearing dates: On the papers Decision date: 25 May 2017 Before: Ward JA at [1]; Gleeson JA at [2]; Payne JA at [3]. Decision: (1) The Court orders under r 45.25(2) of the UCPR and s 59(4) of the Trustee Act that the Property Trust Company is not entitled to have any of its costs of the appeal paid from the trust property. The Property Trust Company is not entitled to indemnification from the trust fund in respect of its costs of appeal proceedings brought by it as trustee or in respect of any costs it is ordered to pay the respondents to the appeal;

(2) The individual appellants pay the first and second respondents' costs of the appeal up to and including 12 April 2016;

(3) The Property Trust Company pay, on an indemnity basis, the costs of the first and second respondents attributable to both the preparation of written submissions and the application to amend the notice of appeal (including the steps taken in relation to the aborted amendment proposal);

(4) The Property Trust Company pay the first and second respondents' costs of all issues in the appeal not addressed by order (3) on a party-party basis. Catchwords: APPEAL – COSTS – whether trustee entitled to indemnification out of the trust property – where appellants did not seek judicial advice before embarking on the appeal

COSTS – whether successful respondent on the appeal is entitled to costs on an indemnity basis – where appellants were refused leave to amend their notice of appeal Legislation Cited: Charitable Trusts Act 1993 (NSW) s 9 Civil Procedure Act 2005 (NSW) ss 56, 98 Supreme Court Rules 1970 (NSW) Part 52A r 42 Trustee Act 1925 (NSW) ss 59, 63 Uniform Civil Procedure Act 2005 (NSW) rr 1.5, 42.25 Cases Cited: Andrew v Andrew (No 3) [2013] NSWSC 286 Bovaird v Frost [2009] NSWSC 917 Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 801 Drummond v Drummond [1999] NSWSC 923 Free Serbian Orthodox Church Diocese for Australia and New Zealand Property Trust v Bishop Irinej Dobrijevic [2017] NSWCA 28 Free Serbian Orthodox Church Diocese for Australia and New Zealand Property Trust v Bishop Irinej Dobrijevic (No 2) [2017] NSWCA 42 House v The King (1936) 55 CLR 499 Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar the Dicoesean Bishop in Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42 Metropolitan Petar v Mitreski [2006] NSWSC 336 National Trustees Executors and Agency Company of Australasia Ltd v Barnes (1941) 64 CLR 268 Norbis v Norbis (1986) 161 CLR 513 Re Free Serbian Orthodox Church – Diocese for Australia and New Zealand Property Trust [2012] NSWSC 649 Rouse v IOOF Australia Trustees Ltd (No 3) [1999] SASC 208 State Trustees Ltd v Bedford (No 2) [2012] VSCA 319 Warton v Yeo [2015] NSWCA 115 Category: Costs Parties: Free Serbian Orthodox Church Diocese for Australia and New Zealand Property Trust (First Appellant) Branko Rupar (Second Appellant) Ratomir Nesic (Third Appellant) Ilija Cubrilo (Fourth Appellant) Petar Mandic (Fifth Appellant)