Bishop Irinej Dobrijevic & Anor v Free Serbian Orthodox Church, Diocese for Australia & New Zealand Property Trust & Ors [2015] NSWSC 637

Bishop Irinej Dobrijevic & Anor v Free Serbian Orthodox Church, Diocese for Australia & New Zealand Property Trust & Ors [2015] NSWSC 637

The constitution of the Free ANZ Diocese did not permit its dissolution or merger with the Serbian Orthodox Church Diocese without unanimous consent or an explicit amendment to that effect; the resolutions to adopt a new constitution and dissolve the Free ANZ Diocese were invalid. The Property Trust Company and its directors breached the charitable trusts by excluding Bishop Irinej and permitting non-canonical services. The trust purpose had ceased to provide a suitable and effective method of using the property, due to schism and changes in the association's character. A cy-près order under s 9 of the Charitable Trusts Act should be made to vary the trust so the property is held for the...

Jurisdiction
Australia
Judgment Date
29 May 2015
Procedural Posture
Principal Judgment / Final Judgment, Post Hearing
Outcome
Declarations and orders are made as to invalidity of the constitutional amendment and merger, breaches of trust by trustee, removal of trustee, and establishment of a cy-près scheme varying the trust to benefit the Metropolitanate of the Serbian Orthodox Church (with limited rights of use for members of the Free ANZ...
Legal Topics
['constitutional Amendment of Unincorporated Religious Association' 'charitable Trust Cy Près Schemes' 'church Mergers and Property' 'breach of Trust' 'ecclesiastical Law and Justiciability' 'removal of Trustee' 'use of Church Property After Schism']
['equity' 'trusts' 'charities' 'religious Associations'] ['constitutional Amendment of Unincorporated Religious Association' 'charitable Trust Cy Près Schemes' 'church Mergers and Property' 'breach of Trust' 'ecclesiastical Law and Justiciability' 'removal of Trustee' 'use of Church Property After Schism']

Case Brief

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Procedural Posture

Principal Judgment / Final Judgment, Post Hearing

Legal Issues

  1. 1 ['Whether amendments to the constitution of an unincorporated religious association were valid and effective' 'Whether trustees breached the terms of a charitable trust' 'Whether the association had power to dissolve itself or merge with another association' 'Whether resolutions were validly passed at meetings to amend the constitution' 'Whether a cy-près scheme should be ordered under s 9 of the Charitable Trusts Act 1993 (NSW)']

Ratio Decidendi

The constitution of the Free ANZ Diocese did not permit its dissolution or merger with the Serbian Orthodox Church Diocese without unanimous consent or an explicit amendment to that effect; the resolutions to adopt a new constitution and dissolve the Free ANZ Diocese were invalid. The Property Trust Company and its directors breached the charitable trusts by excluding Bishop Irinej and permitting non-canonical services. The trust purpose had ceased to provide a suitable and effective method of using the property, due to schism and changes in the association's character. A cy-près order under s 9 of the Charitable Trusts Act should be made to vary the trust so the property is held for the...

Court Disposition

Declarations and orders are made as to invalidity of the constitutional amendment and merger, breaches of trust by trustee, removal of trustee, and establishment of a cy-près scheme varying the trust to benefit the Metropolitanate of the Serbian Orthodox Church (with limited rights of use for members of the Free ANZ...

Orders

  • ['Declaration that the monastery is held upon a charitable trust for the purposes of the Free Serbian Orthodox Church – Diocese of Australia and New Zealand as constituted from time to time.' 'Declaration that the original trust purpose has ceased to provide a suitable and effective method of using the trust...