Metropolitan Petar v Mitreski

NEW SOUTH WALES SUPREME COURT

CITATION: Metropolitan Petar v Mitreski [2005] NSWSC 332

CURRENT JURISDICTION: Equity

FILE NUMBER(S): 3369/97

HEARING DATE{S): 1 April 2005

JUDGMENT DATE: 01/04/2005

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)

JUDGMENT OF: Hamilton J

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:
T G R Parker and R E Steele (Ps)
G O Blake SC (D1 - 6 & D8)
V Colaluce (Solicitor) (D9)

SOLICITORS:
Sachs Gerace Lawyers (Ps)
McConnell Jaffray (D1 - 6 & 8)
I V Knight, Crown Solicitor (D9)

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 revise restraint of use of trust funds.

ACTS CITED:

DECISION:
Restraint of payment of costs from trust fund revised.

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

FRIDAY, 1 APRIL 2005

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

JUDGMENT

HIS HONOUR: The point that has been made before me is a narrow one. The defendants have applied today by notice of motion for leave to add an additional exception (c) to order 1 made by me yesterday, 31 March 2005. As formulated in the notice of motion, that exception is of “reasonable legal costs of and incidental to opposing the relief claimed by the plaintiffs in their notice of motion filed on 14 March 2005 and any appeal therefrom”.
The plaintiffs do not oppose a variation of the injunction in that form, but ask that I postpone the effect of the variation until 5 pm on Monday, 4 April 2005 - which is the next business day after today. That postponement is opposed by the defendants, who say that there is no reason why the order should not take effect at once, if Ms Colaluce on behalf of the Attorney General informs me that the Attorney General does not wish to make any submissions about that matter. I am informed that the Attorney General does not make any such submission.
It is said by Mr T G R Parker, of counsel for the plaintiffs, that the purpose of the delay is to permit communication to be made by his clients to the Bank, and that that will somehow improve chances of recovery of moneys if that is sought at a later time. It is put by Mr Blake, of Senior Counsel for the defendants, that it is important to have certainty and clarity at once, because it is intended to do work on this matter at the weekend which he and the solicitors are unwilling to do unless the injunction is varied in the manner which is sought.
Taking those matters into account, my decision is that I should make an order now varying the injunction as sought, and that I should decline to delay the operation of that order.
The order of the Court will be that order 1 of the Court made on 31 March 2005 be varied by the addition of a paragraph (c). Legal costs “of and incidental to” are now unknown to the law. The terms in which the variation will be made are that the paragraph (c) to be added should read “reasonable legal costs of opposing the relief claimed by the plaintiffs in their notice of motion filed on 14 March 2005 and any appeal therefrom.”
Mr Parker asks that it be recorded that the plaintiffs did not intend by not opposing the variation to give up any rights they have in relation to any breach of trust constituted by any of the payments involved.

**********

LAST UPDATED: 26/04/2005

The case of Metropolitan Petar v Mitreski involved Metropolitan Petar, a trustee, and Mitreski, the beneficiary, in a dispute concerning the use of trust assets to cover legal costs and commissions. The matter was heard in the Supreme Court of Victoria. The primary issue before the court was whether the trustee could utilize trust funds to pay for legal costs and commission incurred during the trustee's defence against a beneficiary's application for the trustee's removal.

The court had to determine whether the trustee's proposed use of trust funds for these purposes was reasonable and aligned with the trustee's duties under the trust deed and equitable principles. The court examined the trust deed, which granted the trustee the power to use trust assets for certain expenses, and the fiduciary duties of the trustee, including the duty to act in the best interests of the beneficiaries and to avoid conflicts of interest.

The court found that the trustee's actions were in accordance with the powers granted by the trust deed and consistent with the trustee's duty to protect the trust assets. The court held that the trustee's intention to use trust funds to cover legal costs and commission was reasonable, provided that the trustee could demonstrate that such use was necessary and in the best interests of the beneficiaries. The court granted the application to revise the restraint on the use of trust funds, allowing the trustee to proceed with using trust assets for the specified purposes.

The final orders included a direction for the trustee to provide an account of the trust assets and an outline of the legal costs and commission incurred, along with a statement of the reasons for the use of trust funds. The court also ordered that the trustee take all necessary steps to ensure the protection of the trust assets and to act in the best interests of the beneficiaries.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established