Smolonogov v Our Lady of Kazan Russian Community of Lidcombe Inc [2020] NSWSC 1484

Smolonogov v Our Lady of Kazan Russian Community of Lidcombe Inc [2020] NSWSC 1484

The trust property was held on a charitable trust for the advancement of religion. Because the congregation had changed denominational alignment, the entitlement of a ROCA aligned congregation to use the property was ambiguous, and the Trust Deed contained unsuitable provisions concerning the beneficiary, amendment, and administration, the original terms had ceased to provide a suitable and effective means of using the trust property. The amended Scheme accorded with the spirit of the trust by facilitating religious worship in the Russian Orthodox tradition and was therefore approved.

Jurisdiction
Australia
Judgment Date
30 September 2020
Procedural Posture
Charitable Trust Proceedings Concerning Approval of a Cy Près Scheme / Approval of Agreed Cy Près Scheme Following Mediation and Proposed Consent Orders
Outcome
The Court approved the amended cy-près scheme and made the remaining proposed consent orders.
Legal Topics
['charitable Trusts' 'cy Près Scheme' 'advancement of Religion' 'administration of Trust Property' 'attorney General as Protector of Charities' 'joinder']
['charities and Not for Profits' 'equity' 'trusts'] ['charitable Trusts' 'cy Près Scheme' 'advancement of Religion' 'administration of Trust Property' 'attorney General as Protector of Charities' 'joinder']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Charitable Trust Proceedings Concerning Approval of a Cy Près Scheme / Approval of Agreed Cy Près Scheme Following Mediation and Proposed Consent Orders

Legal Issues

  1. 1 ['Whether the trust over the Yarram St and Cooba St properties was a charitable trust for the advancement of religion.' 'Whether the original purposes and terms of the trust had ceased to provide a suitable and effective method of using the trust property, having regard to the spirit of the trust.' 'Whether the amended cy-près scheme should be approved by the Court.']

Ratio Decidendi

The trust property was held on a charitable trust for the advancement of religion. Because the congregation had changed denominational alignment, the entitlement of a ROCA aligned congregation to use the property was ambiguous, and the Trust Deed contained unsuitable provisions concerning the beneficiary, amendment, and administration, the original terms had ceased to provide a suitable and effective means of using the trust property. The amended Scheme accorded with the spirit of the trust by facilitating religious worship in the Russian Orthodox tradition and was therefore approved.

Court Disposition

The Court approved the amended cy-près scheme and made the remaining proposed consent orders.

Orders

  • ['The Attorney-General was joined to the proceedings.' 'Father Sergii Medetskyi and Archbishop Tikhon Pasechnik were formally joined to the proceedings.' "The amended cy-près scheme, including the Court's revised wording of cl 6, was approved." "The Court made the remaining orders in the parties' proposed consent...