Metropolitan Petar v Mitreski

[2005] NSWSC 384

CITATION:	Metropolitan Petar v Mitreski [2005] NSWSC 384 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	18 & 19 April 2005
JUDGMENT DATE :	19 April 2005
JURISDICTION:	Equity
JUDGMENT OF:	Hamilton J
DECISION:	Restraint of payment of costs from trust fund extended and revised.

CATCHWORDS:	EQUITY [172] - Trusts and trustees - Powers, duties, rights and liabilities of trustees - Indemnity, lien and reimbursement- In respect of legal costs and commission - Trustee defending proceedings for removal proposes to resort to trust assets for costs - Application to extend and revise restraint of use of trust funds.
PARTIES:	His Grace Metropolitan Petar, the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand (P1) The Very Reverend Father Mitko Mitrev (P2) Lambe Mitreski (D1) Pero Damceski (D2) Boris Minovski (D3) Eftim Eftimov (D4) Mile Marcevski (D5) Macedonian Orthodox Community Church St Petka Incorporated (D6) Naum Despotovski (D8) Attorney General for State of NSW (D9)
FILE NUMBER(S):	SC 3369/97
COUNSEL:	B A J Coles QC, T G R Parker and R E Steele (Ps) G O Blake SC (D1 - 6 & D8) R Lancaster (D9)
SOLICITORS:	Sachs Gerace Lawyers (Ps) McConnell Jaffray (D1 - 6 & 8) I V Knight, Crown Solicitor (D9)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

TUESDAY, 19 APRIL 2005

3369/97 HIS EMINENCE PETAR THE DIOCESAN BISHOP OF THE MACEDONIAN ORTHODOX DIOCESE OF AUSTRALIA & NEW ZEALAND & ORS v LAMBE MITRESKI & ORS

JUDGMENT

1 HIS HONOUR: This interlocutory injunction application is being fixed for hearing on further days, which are 2 and 4 May 2005. I have now to determine the form of the interlocutory relief to be in force during this comparatively short period. The form of the injunction in force up to the end of today, which was granted on 31 March 2005 and varied on 1 April 2005, forbids the payment of legal costs “out of trust funds” with certain exceptions. Mr Blake, of Senior Counsel for the defendants, consents to an extension of the restraint in those terms. Mr Coles, of Queen’s Counsel for the plaintiffs, asks that the fresh restraint be granted in terms “out of the assets of the sixth defendant (excepting the $22,030 raised by lottery as legal costs)”, followed by the exceptions as to the items of costs which may be paid out of the assets.

2 Mr Blake is not able to tell me that the defendants propose to follow differing courses as to the payment of costs depending upon which formula is adopted. He protests, as he protested when the restraint was first imposed, that no prima facie case for interlocutory relief is made out. He points out that, when a defence is filed, it will deny the characterisation of trust funds to assets acquired by the sixth defendant, other than the preowned assets which vested in it upon incorporation. However, bearing in mind the short time, the fact that upon inquiry made no particular prejudice is pointed to, in relation to the wider restraint, and the fact that in my view, for the purposes of a short time restraint, a sufficient arguable case is made out by the plaintiffs, I propose to grant the further interim restraint in the wider terms. The defendants will not be prejudiced in their conduct of this application because exception (c) to the use of funds relates to the costs of opposing the relief claimed upon the notice of motion under adjudication.

**********

12/05/2005 - Senior counsel appearing for Plaintiffs accidentally omitted from cover sheet. - Paragraph(s) No alteration to body of judgment.