His Eminence Petar the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand v Lambe Mitreski [2018] NSWSC 13

His Eminence Petar the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand v Lambe Mitreski [2018] NSWSC 13

The stay should not be lifted because the Court could not presently determine that the sixth defendant's proposed proceedings to set aside the challenged judgments and costs orders for fraud were bound to fail, the Court of Appeal's stay left discretion to revisit its continuation, and it was appropriate to preserve the stay while the sixth defendant expeditiously seeks judicial advice and, if so advised, brings proceedings to challenge the costs orders and seeks indemnity from trust assets. The second plaintiff's non-involvement did not prevent the first plaintiff seeking to lift the stay, but the other grounds for lifting it were not made out.

Jurisdiction
Australia
Judgment Date
29 January 2018
Procedural Posture
Charitable Trust Proceedings / First Plaintiff's Motion to Lift Stay on Enforcement of Costs Orders
Outcome
The relief sought in order (1) of the first plaintiff's motion was dismissed; the stay remained in place until further order on conditions requiring the sixth defendant to act expeditiously.
Legal Topics
['stay of Enforcement of Costs Orders' 'judicial Advice' 'proceedings to Set Aside Judgments for Fraud' 'indemnity From Trust Assets' 'joinder of Joint Creditor']
['trusts' 'charitable Trusts' 'civil Procedure' 'costs'] ['stay of Enforcement of Costs Orders' 'judicial Advice' 'proceedings to Set Aside Judgments for Fraud' 'indemnity From Trust Assets' 'joinder of Joint Creditor']

Case Brief

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Procedural Posture

Charitable Trust Proceedings / First Plaintiff's Motion to Lift Stay on Enforcement of Costs Orders

Legal Issues

  1. 1 ['Whether the stay on enforcement of costs orders made by Young CJ in Eq and Brereton J, as varied by the Court of Appeal, should be lifted.' "Whether the second plaintiff had to join in the first plaintiff's motion to lift the stay." "Whether the sixth defendant's foreshadowed proceedings to set aside judgments and costs orders on the basis of fraud were so futile that the stay should be lifted." 'Whether the original purpose of the stay had failed because the sixth defendant had not sought indemnity out of trust assets.' 'Whether the stay should remain in place for the individual executive council members.']

Ratio Decidendi

The stay should not be lifted because the Court could not presently determine that the sixth defendant's proposed proceedings to set aside the challenged judgments and costs orders for fraud were bound to fail, the Court of Appeal's stay left discretion to revisit its continuation, and it was appropriate to preserve the stay while the sixth defendant expeditiously seeks judicial advice and, if so advised, brings proceedings to challenge the costs orders and seeks indemnity from trust assets. The second plaintiff's non-involvement did not prevent the first plaintiff seeking to lift the stay, but the other grounds for lifting it were not made out.

Court Disposition

The relief sought in order (1) of the first plaintiff's motion was dismissed; the stay remained in place until further order on conditions requiring the sixth defendant to act expeditiously.

Orders

  • ["The relief sought in order (1) of the first plaintiff's motion of 21 July 2017 is dismissed." 'The stay effected by order (3) of the orders made by Brereton J on 21 December 2012 upon the orders for costs against the defendants made that same day, as varied by the orders of the Court of Appeal in March 2013 to...