His Eminence Metropolitan Petar, Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand & Anor v The Macedonian Orthodox Community Church St Petka Incorporated & Anor (No 2) [2007] NSWCA 142

His Eminence Metropolitan Petar, Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand & Anor v The Macedonian Orthodox Community Church St Petka Incorporated & Anor (No 2) [2007] NSWCA 142

Because the appellants succeeded on the appeal and the respondent's resistance at first instance was misplaced, the proper exercise of discretion required that the costs at first instance be the plaintiffs’ costs in the proceedings, and the first respondent pay the appellants’ costs of the appeal. The Suitors’ Fund certificate should be available if so entitled. Limitations on costs to the amount of the certificate were refused, and postponement of the costs payment was unnecessary as r 42.7 UCPR already governs enforceability. The trial judge should determine whether costs can be paid out of trust property at the conclusion of proceedings.

Parties
First Appellant: His Eminence Metropolitan Petar, Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand; Second Appellant: Very Reverend Father Mitko Mitrev; First Respondent: Macedonian Orthodox Community Church St Petka Inc; Second Respondent: Attorney-General for the State of New South Wales
Jurisdiction
Australia
Judgment Date
19 June 2007
Procedural Posture
Appeal / Costs Determination Following Success of Appellants in Interlocutory Appeal
Outcome
Appeal allowed; costs orders as set out in orders 1–4.
Legal Topics
Costs, Interlocutory Injunctions, Suitors' Fund Certificates
Civil Procedure Costs Interlocutory Injunctions Suitors' Fund Certificates

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 4 Authorities cited 13 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

His Eminence Metropolitan Petar, Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand

First Appellant

Very Reverend Father Mitko Mitrev

Second Appellant

Macedonian Orthodox Community Church St Petka Inc

First Respondent

Attorney-General for the State of New South Wales

Second Respondent

Procedural Posture

Appeal / Costs Determination Following Success of Appellants in Interlocutory Appeal

Legal Issues

  1. 1 Appropriate orders as to costs following appeal of interlocutory injunction
  2. 2 Whether costs of hearing at first instance should be plaintiffs' costs in the proceedings
  3. 3 Whether costs of appeal should be entire or apportioned to issues

Ratio Decidendi

Because the appellants succeeded on the appeal and the respondent's resistance at first instance was misplaced, the proper exercise of discretion required that the costs at first instance be the plaintiffs’ costs in the proceedings, and the first respondent pay the appellants’ costs of the appeal. The Suitors’ Fund certificate should be available if so entitled. Limitations on costs to the amount of the certificate were refused, and postponement of the costs payment was unnecessary as r 42.7 UCPR already governs enforceability. The trial judge should determine whether costs can be paid out of trust property at the conclusion of proceedings.

Court Disposition

Appeal allowed; costs orders as set out in orders 1–4.

Orders

  • The costs of the hearing at first instance are to be the plaintiffs' costs in the proceedings.
  • The first respondent is to pay the appellants' costs of the appeal.