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 Inc [2007] NSWCA 150

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 Inc [2007] NSWCA 150

Judicial advice under s 63 of the Trustee Act 1925 (NSW) should not be given where it would effectively determine substantive disputed rights in adversarial proceedings, particularly where a trustee seeks to use trust assets to defend an allegation of breach of trust and removal. The orders made by Palmer J were inappropriate, involved errors of discretion, and erred in making revocable orders contrary to statutory provision. The appeal is upheld, the relevant orders are set aside, and judicial advice is refused.

Jurisdiction
Australia
Judgment Date
22 June 2007
Procedural Posture
Appeal / Judgment on Appeal
Outcome
Appeal upheld as to orders two to eight of 20 March 2007; leave to appeal granted; orders set aside; Association's summons for judicial advice dismissed; leave to appeal against 7 May 2004 and 10 June 2005 orders refused; costs directions to be determined upon written submissions.
Legal Topics
['judicial Advice' 'jurisdiction' 'trustee Powers' 'interpretation of Trust Instrument' 'exercise of Discretion' 'breach of Trust' 'removal of Trustee' 'use of Trust Assets for Legal Costs']
['trusts and Trustees' 'charitable Trusts' 'religious Organizations'] ['judicial Advice' 'jurisdiction' 'trustee Powers' 'interpretation of Trust Instrument' 'exercise of Discretion' 'breach of Trust' 'removal of Trustee' 'use of Trust Assets for Legal Costs']

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Procedural Posture

Appeal / Judgment on Appeal

Legal Issues

  1. 1 ['Scope of power to give judicial advice under s 63 of the Trustee Act 1925 (NSW)' 'Whether Palmer J had power to give judicial advice in this case' 'Whether Palmer J erred in exercising discretion to give judicial advice' 'Whether judicial advice was an appropriate means to determine substantive rights in adversarial proceedings' 'Whether revocable orders can be made under s 63(2)' 'Whether the Court of Appeal should exercise the discretion afresh']

Ratio Decidendi

Judicial advice under s 63 of the Trustee Act 1925 (NSW) should not be given where it would effectively determine substantive disputed rights in adversarial proceedings, particularly where a trustee seeks to use trust assets to defend an allegation of breach of trust and removal. The orders made by Palmer J were inappropriate, involved errors of discretion, and erred in making revocable orders contrary to statutory provision. The appeal is upheld, the relevant orders are set aside, and judicial advice is refused.

Court Disposition

Appeal upheld as to orders two to eight of 20 March 2007; leave to appeal granted; orders set aside; Association's summons for judicial advice dismissed; leave to appeal against 7 May 2004 and 10 June 2005 orders refused; costs directions to be determined upon written submissions.

Orders

  • ["In relation to appeal against orders two to eight of 20 March 2007: leave to appeal is granted; appeal is upheld; the orders are set aside; the Association's summons for judicial advice is dismissed." 'Leave to appeal against the orders of 7 May 2004 and 10 June 2005 is refused.' 'Bishop Petar and Father Mitrev...