Metropolitan Petar v Mitreski [2008] NSWSC 1021

Metropolitan Petar v Mitreski [2008] NSWSC 1021

The challenged defence paragraphs were struck out because, to the extent they pleaded that post-trust Church practice construed or changed the Church Trust, they conflicted with established principles that the terms of a charitable trust are fixed by the founding instrument unless varied in accordance with its own mechanism and that subsequent conduct cannot be used to construe the deed. To the extent they relied on acquiescence and estoppel, estoppel could not be used in this case to defeat or alter the proprietary terms of a charitable trust or to bind Metropolitan Petar as the same legal person as earlier Metropolitans.

Jurisdiction
Australia
Judgment Date
30 September 2008
Procedural Posture
Motion to Strike Out Paragraphs of the Defence in Equity Division Proceedings Concerning a Church Charitable Trust / Plaintiffs' Motion Dated 18 August 2008 Under Pt 14 R 28 of the Uniform Civil Procedure Rules 2005
Outcome
Motion granted with costs; challenged paragraphs of the defence of the 1st to 6th and 8th defendants struck out, with conditional liberty to replead.
Legal Topics
['strike Out of Pleadings' 'construction and Variation of Charitable Trust Deed' 'subsequent Practice in Church Administration' 'estoppel Against Trust Terms' 'successors in Ecclesiastical Office']
['equity' 'trusts' 'charitable Trusts' 'churches and Religious Associations' 'civil Procedure'] ['strike Out of Pleadings' 'construction and Variation of Charitable Trust Deed' 'subsequent Practice in Church Administration' 'estoppel Against Trust Terms' 'successors in Ecclesiastical Office']

Case Brief

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Procedural Posture

Motion to Strike Out Paragraphs of the Defence in Equity Division Proceedings Concerning a Church Charitable Trust / Plaintiffs' Motion Dated 18 August 2008 Under Pt 14 R 28 of the Uniform Civil Procedure Rules 2005

Legal Issues

  1. 1 ["Whether Church practice arising after 8 March 1977 could form part of, construe, alter or vary the Church Trust except through the trust deed's variation mechanism." "Whether previous Metropolitans' acquiescence could estop the plaintiffs or bind a successor Metropolitan in relation to the terms of a charitable trust." "Whether the challenged paragraphs of the 1st to 6th and 8th defendants' defence were liable to be struck out under Pt 14 r 28 of the Uniform Civil Procedure Rules 2005."]

Ratio Decidendi

The challenged defence paragraphs were struck out because, to the extent they pleaded that post-trust Church practice construed or changed the Church Trust, they conflicted with established principles that the terms of a charitable trust are fixed by the founding instrument unless varied in accordance with its own mechanism and that subsequent conduct cannot be used to construe the deed. To the extent they relied on acquiescence and estoppel, estoppel could not be used in this case to defeat or alter the proprietary terms of a charitable trust or to bind Metropolitan Petar as the same legal person as earlier Metropolitans.

Court Disposition

Motion granted with costs; challenged paragraphs of the defence of the 1st to 6th and 8th defendants struck out, with conditional liberty to replead.

Orders

  • ['Paragraphs 7A.2, 7A.11 to 7A.14, 7A.26 to 7A.41, 7A.45 to 7A.60 and 7A.67 to 7A.75 of the defence of the 1st to 6th and 8th defendants to the statement of claim (version 9), and all other paragraphs relying upon, repeating or otherwise incorporating those paragraphs, are struck out.' 'Liberty to replead is granted...