Metropolitan Petar v Mitreski

[2005] NSWSC 331

CITATION:	Metropolitan Petar v Mitreski [2005] NSWSC 331
HEARING DATE(S):	31 March 2005
JUDGMENT DATE :	31 March 2005
JURISDICTION:	Equity
JUDGMENT OF:	Hamilton J
DECISION:	Restraint of payment of costs out of trust fund granted for short time.

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 restrain 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:	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)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

THURSDAY, 31 MARCH 2005

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

JUDGMENT - On application for restraint of payment of costs

1 HIS HONOUR: Mr Parker, leading counsel for the plaintiffs, has applied for a restraint of the payment of costs by the defendants out of trust funds. Mr Blake, of Senior Counsel for the defendants, has said that no case whatever is established for such a restraint, even for a short period. What material there is before me in the exigencies of the conduct of proceedings this afternoon is slight and informal. However, I perceive a sufficient case that the payment of costs may be in breach of trust to justify a very short restraint of such payment.

2 The balance of convenience strongly favours the restraint, since, if moneys were raised in the short time concerned and paid away, the subject matter of the application might be lost. The inconvenience to the defendants is slight because the time is very short and it is far from certain that any funds will be available during that period in any event. The defendants say that the plaintiffs’ undertaking as to damages is valueless, but against that, bearing in mind the nature of the restraint proposed to be granted, the prospect of incurring loss of any substance during the period of the restraint is absolutely minimal.

3 The orders of the Court will be as follows:

1 On the application of the plaintiffs and on the usual undertaking as to damages of both plaintiffs given to the Court by their counsel the defendants are restrained up to and including 19 April 2005 from paying any legal costs out of trust funds other than (a) costs the payment of which is authorised under judicial advice given by Palmer J; (b) the costs of transcript and court fees.
2 Liberty to apply on 12 hours’ notice.
3 I fix 18 and 19 April 2005 for the hearing before me of an application for further injunctive relief.
4 I direct that further evidence on the application be served as follows:
plaintiffs on or before 4 April 2005
defendants on or before 15 April 2005.

5 I appoint Tuesday 12 April 2005 for the return of subpoenas and notices to produce before the Registrar.

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