Free Serbian Orthodox Church Diocese for Australia and New Zealand Property Trust v Bishop Irinej Dobrijevic [2017] NSWCA 28

Free Serbian Orthodox Church Diocese for Australia and New Zealand Property Trust v Bishop Irinej Dobrijevic [2017] NSWCA 28

The Court dismissed the appeal, finding no error in the primary judge's evaluative findings that the original trust purposes and the spirit of the trust included a Serbian Orthodox character and hope of reunification with the Serbian Orthodox Church, and that due to changes in the diocese's character, affiliation with the OCOCG-HSIR, and a diminished membership, the original purposes had ceased to provide a suitable and effective method for use of the monastery. The cy-près scheme applying the property for the SOC-ANZ Metropolitanate, with provisions for continued limited use by Free ANZ Diocese members, was appropriately ordered. Leave to amend the notice of appeal was properly refused...

Jurisdiction
Australia
Judgment Date
07 March 2017
Procedural Posture
Appeal / Court of Appeal Decision
Outcome
Appeal dismissed; leave to file amended notice of appeal refused; directions made for costs submissions.
Legal Topics
['cy Près Doctrine' 'charitable Trusts' 'amendment of Notices of Appeal' 'identification of Trust Purposes' 'spirit of the Trust' 'church Property' 'practice and Procedure']
['charities' 'trusts' 'equity' 'civil Procedure'] ['cy Près Doctrine' 'charitable Trusts' 'amendment of Notices of Appeal' 'identification of Trust Purposes' 'spirit of the Trust' 'church Property' 'practice and Procedure']

Case Brief

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Procedural Posture

Appeal / Court of Appeal Decision

Legal Issues

  1. 1 ['Application of s 9 of the Charitable Trusts Act 1993 (NSW) to vary trust purposes cy-près for a Serbian Orthodox monastery property, having regard to the spirit of the trust' 'Whether the primary judge erred in his findings regarding the original purposes and the spirit of the trust' 'Whether leave to amend the notice of appeal should have been granted']

Ratio Decidendi

The Court dismissed the appeal, finding no error in the primary judge's evaluative findings that the original trust purposes and the spirit of the trust included a Serbian Orthodox character and hope of reunification with the Serbian Orthodox Church, and that due to changes in the diocese's character, affiliation with the OCOCG-HSIR, and a diminished membership, the original purposes had ceased to provide a suitable and effective method for use of the monastery. The cy-près scheme applying the property for the SOC-ANZ Metropolitanate, with provisions for continued limited use by Free ANZ Diocese members, was appropriately ordered. Leave to amend the notice of appeal was properly refused...

Court Disposition

Appeal dismissed; leave to file amended notice of appeal refused; directions made for costs submissions.

Orders

  • ['Leave to file an amended notice of appeal is refused.' 'Appeal dismissed.' 'Within 14 days of the publication of the judgment the respondents to file and serve costs/indemnification submissions (max 20 pages).' 'Within 21 days of publication the appellants to file and serve costs/indemnification submissions (max...