His Eminence Petar the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia And New Zealand v Lambe Mitreski [2013] NSWSC 1240

His Eminence Petar the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia And New Zealand v Lambe Mitreski [2013] NSWSC 1240

The stay should not continue because the Court of Appeal had dismissed the appeal from order 4(d), the outstanding reserved issues did not justify allowing an improperly constituted sixth defendant to continue contesting matters that a properly constituted sixth defendant might choose not to litigate, and the only identified grounds for special leave concerning the Associations Incorporation legislation had already been rejected by Hamilton J, Brereton J and a unanimous Court of Appeal, leaving prospects of special leave too slight to justify a stay. A short 14-day period before termination was allowed.

Jurisdiction
Australia
Judgment Date
20 August 2013
Procedural Posture
Application for Discharge of Stay / Consequential Orders After Court of Appeal Dismissed Appeal and Before Possible Application for Special Leave
Outcome
Stay discharged with effect from 4 September 2013; sixth defendant ordered to pay the plaintiffs' costs of the application.
Legal Topics
['discharge of Stay' 'stay Pending Application for Special Leave' 'charitable Trust' 'association Membership' 'right of Indemnity Out of Trust Assets']
['practice and Procedure' 'equity' 'trusts' 'associations'] ['discharge of Stay' 'stay Pending Application for Special Leave' 'charitable Trust' 'association Membership' 'right of Indemnity Out of Trust Assets']

Case Brief

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Procedural Posture

Application for Discharge of Stay / Consequential Orders After Court of Appeal Dismissed Appeal and Before Possible Application for Special Leave

Legal Issues

  1. 1 ['Whether the stay of order 4(d) made on 5 March 2012 should continue after the Court of Appeal dismissed the appeal from that order.' "Whether outstanding reserved issues about the sixth defendant's indemnity and use of trust property justified continuing the stay." 'Whether the prospect of an application for special leave to appeal justified continuing the stay.']

Ratio Decidendi

The stay should not continue because the Court of Appeal had dismissed the appeal from order 4(d), the outstanding reserved issues did not justify allowing an improperly constituted sixth defendant to continue contesting matters that a properly constituted sixth defendant might choose not to litigate, and the only identified grounds for special leave concerning the Associations Incorporation legislation had already been rejected by Hamilton J, Brereton J and a unanimous Court of Appeal, leaving prospects of special leave too slight to justify a stay. A short 14-day period before termination was allowed.

Court Disposition

Stay discharged with effect from 4 September 2013; sixth defendant ordered to pay the plaintiffs' costs of the application.

Orders

  • ['The stay granted on 5 March 2012 of order 4(d) made on that date terminate with effect from 4 September 2013.' "The sixth defendant pay the plaintiff's costs of the application for a stay."]