Metropolitan Petar & 1 Or v Macedonian Orthodox Community Church St Petka Incorporated & 7 Ors [2007] NSWCA 263

The first to seventh defendants' application for leave to cross-appeal was incompetent because the challenged findings in Hamilton J's reasons were not decisions within s 103 of the Supreme Court Act 1970 (NSW), particularly where his Honour had expressed his decision as answers to the separate questions and declarations had been made. The claimants' leave application and the defendants' application to extend time for a cross-appeal as of right should be stood over until final judgment because immediate appellate intervention would have insufficient utility, would add delay, and would require review of complex evidence mid-trial; it was preferable that all appeal issues be raised in one...

Jurisdiction: Australia
Judgment Date: 24 September 2007
Procedural Posture: Application for Leave to Appeal, Application for Leave to Cross Appeal, and Application to Extend Time to File a Cross Appeal as of Right / New South Wales Court of Appeal, Before Final Judgment in the Trial
Outcome: The plaintiffs' application for leave to appeal was stood over until final judgment; the first to seventh defendants' application for leave to cross-appeal was dismissed with costs; the application to extend time to file a cross-appeal as of right was stood over; the matter was remitted to the Chief Judge in Equity...
Legal Topics: ['leave to Appeal' 'cross Appeal Competency' 'appeal Against Reasons or Findings' 'separate Determination of Questions or Issues' 'extension of Time' 'charitable Trust Property' 'costs and Recourse to Trust Property']

['appeals' 'civil Procedure' 'equity and Trusts' 'charity Law'] ['leave to Appeal' 'cross Appeal Competency' 'appeal Against Reasons or Findings' 'separate Determination of Questions or Issues' 'extension of Time' 'charitable Trust Property' 'costs and Recourse to Trust Property']

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Procedural Posture

Application for Leave to Appeal, Application for Leave to Cross Appeal, and Application to Extend Time to File a Cross Appeal as of Right / New South Wales Court of Appeal, Before Final Judgment in the Trial

Legal Issues

1 ["Whether the first to seventh defendants' application for leave to cross-appeal was competent where it challenged reasons or findings rather than a decision of the Court." "Whether Hamilton J's findings were appealable as a decision in proceedings on a separately determined question or issue under s 103 of the Supreme Court Act 1970 (NSW)." 'Whether leave should be granted at this stage to appeal against the wording of declarations made on 7 February 2007.' 'Whether time should be extended for the first to seventh defendants to file a cross-appeal as of right before final judgment in the trial.' 'Whether the Association should have recourse to Schedule A property for costs of the application for leave to cross-appeal.']

Ratio Decidendi

Court Disposition

The plaintiffs' application for leave to appeal was stood over until final judgment; the first to seventh defendants' application for leave to cross-appeal was dismissed with costs; the application to extend time to file a cross-appeal as of right was stood over; the matter was remitted to the Chief Judge in Equity...

Orders

['The application for leave to appeal made by the plaintiffs is stood over until final judgment in the trial is delivered.' 'The costs of such application is stood over with liberty to apply should the matter be resolved without final judgment being so delivered.' 'The application for leave to cross-appeal made by...