Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar Diocesan Bishop of Macedonian Orthodox Diocese of

[2008] HCA 42
(2008) 82 ALJR 1425
(2008) 249 ALR 250
(2008) 1 ASTLR 1
(2008) 237 CLR 66

Macedonian Orthodox Community Church St Petka Inc
vHis Eminence Petar Diocesan Bishop of Macedonian Orthodox Diocese of

Court:
High Court of Australia

Judges: Gummow ACJ
Kirby J
Hayne J
Heydon J
Kiefel J

Legislative References:
Law of Property Amendment Act 1859 (UK) - s 30
Law of Property Amendment Act 1860 (UK) - s 9
Trustee Act 1898 (NSW) - s 20
Supreme Court Procedure Act 1900 - s 10-12; Sched r 2
Charitable Trusts Act 1853 (UK) - s 16
Charitable Trusts Act 1993 (NSW) - s 6(1)(b)
Evidence Act 1995 (NSW) - Pt 3.10, Div 1
Trustee Act 1925 (NSW) - s 63

Hearing date:
Judgment date: 7 August 2008

Order

1. Appeal allowed.

2. Respondents to pay the appellant's costs of the appeal.

3. Set aside O 1 of the orders made by the Court of Appeal of the Supreme Court of New South Wales on 22 June 2007 and, in its place, order that the application for leave to appeal to that Court be dismissed with costs.

4. Application for special leave to cross-appeal dismissed with costs.

5. Set aside Os 1, 2, 3 and 5 of the orders made by the Court of Appeal of the Supreme Court of New South Wales on 23 October 2007 and, in their place, order that the appellant be entitled to be reimbursed out of the Schedule A Property for the balance of its costs, charges and expenses incurred in conducting the proceedings in the Court of Appeal to the extent to which they are not paid by the respondents.

6. Order that the appellant be entitled to be reimbursed out of the Schedule A Property for the balance of its costs, charges and expenses incurred in conducting the proceedings in this Court to the extent to which they are not paid by the respondents.

[1]
There is no seventh defendant.

[2]
Some of the allegations are set out in more detail below: [145]-[146].

[3]
Application of Macedonian Orthodox Community Church St Petka Inc (No 3 ) [2006] NSWSC 1247 .

[4]
Application of Macedonian Orthodox Community Church St Petka Inc (No 4 ) [2007] NSWSC 254 .

[5]
See [11]-[13] below.

[6]
His Eminence Metropolitan Petar, Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand v The Macedonian Orthodox Community Church St Petka Inc [2007] NSWCA 150 .

[7]
Application of Macedonian Orthodox Community Church St Petka Inc [2004] NSWSC 388 .

[8]
Application of Macedonian Orthodox Community Church St Petka Inc (No 2 ) (2005) 63 NSWLR 441 .

[9]
Palmer J compared the litigation to the Sargasso Sea: Application of Macedonian Orthodox Community Church St Petka Inc (No 3 ) [2006] NSWSC 1247 at [39]. He saw it as characterised by "the constant shifts and manoeuvrings of the parties": Application of Macedonian Orthodox Community Church St Petka Inc (No 4 ) [2007] NSWSC 254 at [5]. At [7] he spoke of "each twist and turn in the path on the way to a final hearing". At [9] he indicated a fear of "yet another protracted and expensive piece of litigation as a spin-off to the Main Proceedings."

[10]
Metropolitan Petar v Mitreski [2005] NSWSC 330 . Section 6(1), (2) and (2A) of the Charitable Trusts Act provide:

(1)
Charitable trust proceedings are not to be commenced in the Court unless:

(a)
the Attorney General has authorised the bringing of the proceedings, or
(b)
leave to bring the proceedings is obtained from the Court.

(2)
The Court is not to give such leave unless satisfied that the Attorney General has been given an opportunity to consider whether to authorise the proceedings or that the referral of the matter to the Attorney General is not appropriate because of the urgency of the matter or other good cause.
(2A) Any such authority or leave may also be given after charitable trust proceedings have been brought so as to enable the continuation of those proceedings.

[11]
Metropolitan Petar v Mitreski [2008] NSWSC 293 at [54]. Lest silence be taken as approval of the delay since the Main Proceedings began, it must be said that it is most unsatisfactory. It was not suggested that any criticism for this delay is to be directed at the courts.

[12]
Metropolitan Petar v Mitreski [2003] NSWSC 262 at [102].

[13]
Application of Macedonian Orthodox Community Church St Petka Inc [2004] NSWSC 388 at [22], [24] and [27].

[14]
The plaintiffs had, within time, filed a notice of appeal; but after a debate which took place when the Court of Appeal drew attention at the hearing on 8 December 2004 to the question of whether the appeal was competent without leave being granted, the plaintiffs ceased to press the appeal, invited the Court of Appeal to dismiss it as incompetent, and did not apply for leave.

[15]
Application of Macedonian Orthodox Community Church St Petka Inc (No 2 ) (2005) 63 NSWLR 441 at 448 [84].

[16]
Application of Macedonian Orthodox Community Church St Petka Inc (No 3 ) [2006] NSWSC 1247 .

[17]
Application of Macedonian Orthodox Community Church St Petka Inc (No 4 ) [2007] NSWSC 254 . See above at [5]. A slip in the orders was corrected on 4 May 2007 .

[18]
His Eminence Metropolitan Petar, Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand v The Macedonian Orthodox Community Church St Petka Inc [2006] NSWCA 277 .

[19]
Application of Macedonian Orthodox Community Church St Petka Inc [2004] NSWSC 388 at [19].

[20]
Application of Macedonian Orthodox Community Church St Petka Inc (No 2 ) [2005] NSWSC 558 at [54].

[21]
Application of Macedonian Orthodox Community Church St Petka Inc (No 3 ) [2006] NSWSC 1247 at [53] and [65].

[22]
Application of Macedonian Orthodox Community Church St Petka Inc (No 3 ) [2006] NSWSC 1247 at [50].

[23]
Application of Macedonian Orthodox Community Church St Petka Inc (No 2 ) [2005] NSWSC 558 at [56].

[24]
Application of Macedonian Orthodox Community Church St Petka Inc (No 3 ) [2006] NSWSC 1247 at [50].

[25]
Application of Macedonian Orthodox Community Church St Petka Inc (No 3 ) [2006] NSWSC 1247 at [51].

[26]
Application of Macedonian Orthodox Community Church St Petka Inc (No 3 ) [2006] NSWSC 1247 at [52].

[27]
His Eminence Metropolitan Petar, the Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand v The Macedonian Orthodox Community Church St Petka Inc [2007] NSWCA 150 at [94] and [116].

[28]
The passages are quoted at [162]-[163] below.

[29]
Application of Macedonian Orthodox Community Church St Petka Inc (No 4 ) [2007] NSWSC 254 at [9]-[10].

[30]
Application of Macedonian Orthodox Community Church St Petka Inc (No 3 ) [2006] NSWSC 1247 at [40].

[31]
Application of Macedonian Orthodox Community Church St Petka Inc (No 4 ) [2007] NSWSC 254 at [6].

[32]
His Eminence Metropolitan Petar, Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand v The Macedonian Orthodox Community Church St Petka Inc [2007] NSWCA 150 at [77] per Ipp JA (Hodgson JA agreeing at [5]). The contrary indications are at [63] and [112]: see below at [28] and [75]. Giles JA said (at [3]) that the Association's application was "foreign to the non-adversarial nature of s 63 proceedings" and this made giving advice "inappropriate". Whether he disagreed with the majority depends on the meaning of "foreign" and "inappropriate".

[33]
(1936) 55 CLR 499 at 504-505; [1936] HCA 40 . There Dixon, Evatt and McTiernan JJ said:
See also Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360 ; [1949] HCA 26 .

[34]
His Eminence Metropolitan Petar, Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand v The Macedonian Orthodox Community Church St Petka Inc [2007] NSWCA 150 at [82]-[96].

[35]
His Eminence Metropolitan Petar, Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand v The Macedonian Orthodox Community Church St Petka Inc [2007] NSWCA 150 at [97].

[36]
Quoted below at [89].

[37]
His Eminence Metropolitan Petar, Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand v The Macedonian Orthodox Community Church St Petka Inc [2007] NSWCA 150 at [112].

[38]
His Eminence Metropolitan Petar, Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand v The Macedonian Orthodox Community Church St Petka Inc [2007] NSWCA 150 at [117].

[39]
For the purpose of this appeal the question how far there is jurisdiction to give judicial advice by reason of the inherent jurisdiction of a court of equity, or by reason of the Supreme Court Act 1970 (NSW), s 22 or s 23, need not be considered.

[40]
Subsections (5)-(7) were repealed in 1972. They created restrictions on the powers of Judges and Masters, and powers in relation to costs, which are immaterial to the construction of the remaining parts of s 63. There are provisions similar to s 63 in Queensland (Trusts Act 1973, ss 96 and 97 ), South Australia (Trustee Act 1936, s 91 and the Administration and Probate Act 1919, s 69), Western Australia (Trustees Act 1962, ss 92 and 95 ) and the Australian Capital Territory (Trustee Act 1925, s 63). In Victoria the powers given by r 54.02 and r 54.03 of the Supreme Court (General Civil Procedure) Rules 2005 are not derived directly from the United Kingdom source of s 63, but from the Rules of the Supreme Court 1883 (UK) ("RSC"), O 55 r 3 , discussed below at [41]-[49].

[41]
United Kingdom, House of Lords, Parliamentary Debates (Hansard), series 3, vol 145, 11 June 1857 , col 1552; vol 147, 28 July 1857 , col 550 and 18 August 1857, col 1774.

[42]
The origin of s 85 lies in the Judicial Trustees Act 1896 (UK), s 3, enacted in New South Wales in the Trustee Act Amendment Act 1902, s 9. See Maguire v Makaronis (1997) 188 CLR 449 at 473-474 ; [1997] HCA 23 ; Youyang Pty Ltd v Minter Ellison Morris Fletcher (2003) 212 CLR 484 at 498 [33]; [2003] HCA 15 .

[43]
See Re G B Nathan & Co Pty Ltd (in liq ) (1991) 24 NSWLR 674 at 677-679.

[44]
See below at [61]-[63].

[45]
Harvey J had doubted whether one existed: In re J S Mitchell, dec'd (1913) 30 WN (NSW) 137 at 138. Sir William Page Wood V-C had denied that one did: In re Mockett's Trusts (1860) 6(1) Jur (NS) 142 at 143: see also Daniell, Chancery Practice, 5th ed (1871) vol 2 at 1944.

[46]
Page 100. H S Nicholas served as a judge of the Supreme Court of New South Wales from 1935 to 1946 (in the last 7 years as Chief Judge in Equity) and he was editor of Underhill's Trusts and Trustees : Special Australasian Edition , 7th ed (1913).

[47]
Stuckey and Irwin (eds), Parker's Practice in Equity , 2nd ed (1949) at 757, n 61. See also the first edition of Parker, The Practice in Equity , (1930) at 651.

[48]
See, for example, Weiss v R (2005) 224 CLR 300 ; [2005] HCA 81 .

[49]
cf His Eminence Metropolitan Petar, Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand v The Macedonian Orthodox Community Church St Petka Inc [2007] NSWCA 150 at [59].

[50]
[1893] 1 Ch 547 .

[51]
[1982] 1 WLR 756 ; [1982] 3 All ER 118 .

[52]
[1986] 1 WLR 101 ; [1985] 3 All ER 289 .

[53]
His Eminence Metropolitan Petar, Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand v The Macedonian Orthodox Community Church St Petka Inc [2007] NSWCA 150 at [59].

[54]
[1893] 1 Ch 547 (footnote added).

[55]
[1893] 1 Ch 547 at 557. See also Bowen LJ at 562 and 564.

[56]
See [43] above.

[57]
[1982] 1 WLR 756 ; [1982] 3 All ER 118 .

[58]
His Eminence Metropolitan Petar, Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand v The Macedonian Orthodox Community Church St Petka Inc [2007] NSWCA 150 at [107].

[59]
[1982] 1 WLR 756 at 758; [1982] 3 All ER 118 at 120.

[60]
[1986] 1 WLR 101 ; [1985] 3 All ER 289 .

[61]
Application of Macedonian Orthodox Community Church St Petka Inc (No 3 ) [2006] NSWSC 1247 at [55]-[76].

[62]
Metropolitan Local Aboriginal Land Council v Metropolitan Aboriginal Assoc [2003] NSWSC 104 .

[63]
At [56]-[58].

[64]
[1986] 1 WLR 101 at 106; [1985] 3 All ER 289 at 292.

[65]
See [167]-[177].

[66]
See eg Victorian WorkCover Authority v Esso Australia Ltd (2001) 207 CLR 520 at 526 [11], 545 [63]; [2001] HCA 53 ; The Commonwealth v Yarmirr (2001) 208 CLR 1 at 37-39 [11]-[15], 111-112 [249]; [2001] HCA 56 ; Western Australia v Ward (2002) 213 CLR 1 at 60 [2], 65-66 [16], 69 [25], 249-250 [588]; [2002] HCA 28 ; Weiss v R (2005) 224 CLR 300 at 312-313 [31].

[67]
(1994) 181 CLR 404 at 421; [1994] HCA 54 : see the cases referred to in Hillpalm Pty Ltd v Heaven's Door Pty Ltd (2004) 220 CLR 472 at 488-489 [47] n 28, cf at 500 [84] n 67; [2004] HCA 59 .

[68]
See above at [25].

[69]
So far as there is authority suggesting that it is beyond the power of the court to give advice to be used for "adversarial purposes" or to decide a matter in issue between parties (eg Re Mary Hooper (1861) 29 Beav 656 [ 54 ER 782 ]), it dates from a time before the additional words were inserted into what is now s 63(1) and before s 63(8)-(10) were inserted -- in the case of New South Wales, in 1925.

[70]
Klein v Domus Pty Ltd (1963) 109 CLR 467 at 473 ; [1963] HCA 54 ; De L v Director-General, NSW Department of Community Services (1996) 187 CLR 640 at 661 ; [1996] HCA 5 .

[71]
See below, n 108.

[72]
Application of Macedonian Orthodox Community Church St Petka Inc (No 2 ) (2005) 63 NSWLR 441 at 445 [20].

[73]
United Kingdom, House of Lords, Parliamentary Debates (Hansard), series 3, vol 145, 11 June 1857 , col 1557.

[74]
Application of Macedonian Orthodox Community Church St Petka Inc (No 2 ) (2005) 63 NSWLR 441 at 445 [23] per Palmer J, approved in Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar, the Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand (2006) 66 NSWLR 112 at 122 [40] per Beazley and Giles JJA.

[75]
Cameron v Hogan (1934) 51 CLR 358 at 370- 371 and 377 -378; [1934] HCA 24 ; Ermogenous v Greek Orthodox Community (2002) 209 CLR 95 at 108 [32], 118-119 [65]; [2002] HCA 8 .

[76]
Bray v Ford [1896] AC 44 at 51 per Lord Herschell.

[77]
In re Grimthorpe [1958] Ch 615 at 623.

[78]
See below, n 155.

[79]
His Eminence Metropolitan Petar, Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand v The Macedonian Orthodox Community Church St Petka Inc [2007] NSWCA 150 at [63].

[80]
See [18] above.

[81]
Application of Macedonian Orthodox Community Church St Petka Inc (No 3 ) [2006] NSWSC 1247 at [69].

[82]
Application of Macedonian Orthodox Community Church St Petka Inc (No 4 ) [2007] NSWSC 254 at [9].

[83]
Application of Macedonian Orthodox Community Church St Petka Inc (No 3 ) [2006] NSWSC 1247 at [62]. This analysis was cited with approval in Mowbray et al, Lewin on Trusts , 18th ed (2008) at 749-750 [21-115].

[84]
Application of Macedonian Orthodox Community Church St Petka Inc (No 3 ) [2006] NSWSC 1247 at [65].

[85]
His Eminence Metropolitan Petar, Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand v The Macedonian Orthodox Community Church St Petka Inc [2007] NSWCA 150 at [116].

[86]
[1982] 1 WLR 756 ; [1982] 3 All ER 118 .

[87]
His Eminence Metropolitan Petar, Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand v The Macedonian Orthodox Community Church St Petka Inc [2007] NSWCA 150 at [108].

[88]
His Eminence Metropolitan Petar, Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand v The Macedonian Orthodox Community Church St Petka Inc [2007] NSWCA 150 at [111].

[89]
[1982] 1 WLR 756 at 761-762; [1982] 3 All ER 118 at 123.

[90]
Application of Macedonian Orthodox Community Church St Petka Inc (No 3 ) [2006] NSWSC 1247 at [74].

[91]
Application of Macedonian Orthodox Community Church St Petka Inc (No 3 ) [2006] NSWSC 1247 at [75].

[92]
His Eminence Metropolitan Petar, Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand v The Macedonian Orthodox Community Church St Petka Inc [2007] NSWCA 150 at [111].

[93]
His Eminence Metropolitan Petar, Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand v The Macedonian Orthodox Community Church St Petka Inc [2007] NSWCA 150 at [82].

[94]
In an earlier decision the Court of Appeal had drawn the same distinction: Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar, the Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand (2006) 66 NSWLR 112 .

[95]
The plaintiffs contended to the Court of Appeal that, in dealing with a judicial advice application, the court should not be drawn into resolving a disputed issue, and in such circumstances may and "should usually" refuse the application.

[96]
(2006) 66 NSWLR 112 at 123 [42].

[97]
(1992) 29 NSWLR 405 at 440. Cf at 417-418 (point 5).

[98]
[1976] 1 NSWLR 42 at 45.

[99]
[1976] 1 NSWLR 42 at 46.

[100]
His Eminence Metropolitan Petar, the Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand v Macedonian Orthodox Community Church St Petka Inc [2007] NSWCA 150 at [84]. The reference to Hodgson JA is a reference to Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar, the Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand (2006) 66 NSWLR 112 at 128 [67], where Hodgson JA (dissenting) said: "the judicial advice would affect the rights of the trustee and the rights of the plaintiffs to a very substantial degree."

[101]
See n 10 above.

[102]
Set out at [5] above.

[103]
[1991] 3 All ER 198 at 201.

[104]
His Eminence Metropolitan Petar, Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand v The Macedonian Orthodox Community Church St Petka Inc [2007] NSWCA 150 at [90].

[105]
Application of Macedonian Orthodox Community Church St Petka Inc (No 3 ) [2006] NSWSC 1247 at [41].

[106]
Citing MTM Funds Management Ltd v Cavalane Holdings Pty Ltd (2000) 35 ACSR 440 at 445 [17].

[107]
His Eminence Metropolitan Petar, Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand v The Macedonian Orthodox Community Church St Petka Inc [2007] NSWCA 150 at [91].

[108]
It is true that in the first case, Re the Trusts of the Will of Gilchrist (1867) 6 SCR (NSW) Eq 74 at 78, Hargrave J cited Re Mary Hooper (1861) 29 Beav 656 [ 54 ER 782 ] as authority for the proposition that the Trust Property Act of 1862 (NSW), s 30, should not be used to construe trust instruments, but since 1925 the second limb of s 63(1) permits this course. The other cases ( Re J S Mitchell, dec'd (1913) 30 WN (NSW) 137; Alcock v The Public Trustee (1936) 53 WN (NSW) 192 and Re Sinnamon [1940] QWN 41 ) do not support the proposition.

[109]
[2002] 3 NZLR 826 at 833-835.

[110]
[1976] 1 NSWLR 42 at 44-45.

[111]
[1991] 3 All ER 198 at 201.

[112]
See [104]-[107].

[113]
(2006) 60 ACSR 625 at 632 [25].

[114]
(2006) 60 ACSR 625 at 631 [23].

[115]
Application of Macedonian Orthodox Community Church St Petka Inc (No 2 ) (2005) 63 NSWLR 441 at 445-446 [23].

[116]
Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar, the Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand (2006) 66 NSWLR 112 at 122 [40].

[117]
Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar, the Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand (2006) 66 NSWLR 112 at 122 [40]; Hartigan Nominees Pty Ltd v Rydge (1992) 29 NSWLR 405 at 440. See also Harrison v Mills [1976] 1 NSWLR 42 .

[118]
See [74].

[119]
His Eminence Metropolitan Petar, Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand v The Macedonian Orthodox Community Church St Petka Inc [2007] NSWCA 150 at [79]-[96].

[120]
His Eminence Metropolitan Petar, Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand v The Macedonian Orthodox Community Church St Petka Inc [2007] NSWCA 150 at [96].

[121]
His Eminence Metropolitan Petar, Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand v The Macedonian Orthodox Community Church St Petka Inc (No 2 ) [2007] NSWCA 287 at [38].

[122]
See [137]-[166] below.

[123]
[1991] 3 All ER 198 : the plaintiffs drew particular attention to 201d-h.

[124]
See [104].

[125]
Those discussed above at [99] and [108]-[110], particularly Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar, the Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand (2006) 66 NSWLR 112 at 123 [42] and 127-128 [65]-[68] (a decision admittedly handed down only nine days before the first of the plaintiff's written submissions to Palmer J).

[126]
See [118].

[127]
[1991] 3 All ER 198 at 201.

[128]
Application of Macedonian Orthodox Community Church St Petka Inc (No 3 ) [2006] NSWSC 1247 at [27] and [44].

[129]
Application of Macedonian Orthodox Community Church St Petka Inc (No 3 ) [2006] NSWSC 1247 at [51].

[130]
Application of Macedonian Orthodox Community Church St Petka Inc (No 3 ) [2006] NSWSC 1247 at [50].

[131]
Application of Macedonian Orthodox Community Church St Petka Inc (No 3 ) [2006] NSWSC 1247 at [44].

[132]
Application of Macedonian Orthodox Community Church St Petka Inc (No 3 ) [2006] NSWSC 1247 at [45].

[133]
Application of Macedonian Orthodox Community Church St Petka Inc (No 3 ) [2006] NSWSC 1247 at [46].

[134]
Application of Macedonian Orthodox Community Church St Petka Inc (No 3 ) [2006] NSWSC 1247 at [49].

[135]
His Eminence Metropolitan Petar, Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand v The Macedonian Orthodox Community Church St Petka Inc [2007] NSWCA 150 at [79].

[136]
His Eminence Metropolitan Petar, Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand v The Macedonian Orthodox Community Church St Petka Inc [2007] NSWCA 150 at [7].

[137]
His Eminence Metropolitan Petar, Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand v The Macedonian Orthodox Community Church St Petka Inc [2007] NSWCA 150 at [8].

[138]
Discussed below at [137]-[166].

[139]
Application of Macedonian Orthodox Community Church St Petka Inc (No 3 ) [2006] NSWSC 1247 at [4], [6], [17], [22]-[23], [26], [28], [31]-[34], [40] and [65].

[140]
Application of Macedonian Orthodox Community Church St Petka Inc (No 3 ) [2006] NSWSC 1247 at [48]-[49]: see above at [128].

[141]
Application of Macedonian Orthodox Community Church St Petka Inc (No 3 ) [2006] NSWSC 1247 at [2].

[142]
Application of Macedonian Orthodox Community Church St Petka Inc [2004] NSWSC 388 at [2]-[3], [9], [15] and [20]; Application of Macedonian Orthodox Community Church St Petka Inc (No 2 ) (2005) 63 NSWLR 441 at 443 [7], 447 [33]-[34] (and [2005] NSWSC 558 at [48], [52], [55] and [56]).

[143]
Application of Macedonian Orthodox Community Church St Petka Inc (No 3 ) [2006] NSWSC 1247 at [6].

[144]
For example, Application of Macedonian Orthodox Community Church St Petka Inc (No 2 ) [2005] NSWSC 558 at [55]-[56].

[145]
House v R (1936) 55 CLR 499 at 504-505: quoted above at n 33.

[146]
See Dwyer v Calco Timbers Pty Ltd (2008) 82 ALJR 669 at 676-677 [37]-[40]; 244 ALR 257 at 266-267; [2008] HCA 13 .

[147]
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 .

[148]
His Eminence Metropolitan Petar, Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand v The Macedonian Orthodox Community Church St Petka Inc [2007] NSWCA 150 at [98]. Hodgson JA applied to the loss the expression "a very substantial proportion": at [7](c) (quoted at [130] above).

[149]
Application of Macedonian Orthodox Community Church St Petka Inc (No 3 ) [2006] NSWSC 1247 at [34], [37], [40], [88] and [91].

[150]
Application of Macedonian Orthodox Community Church St Petka Inc (No 4 ) [2007] NSWSC 254 at [9]-[10], [13] and [15].

[151]
See [18] above.

[152]
His Eminence Metropolitan Petar, Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand v The Macedonian Orthodox Community Church St Petka Inc [2007] NSWCA 150 at [98].

[153]
His Eminence Metropolitan Petar, Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand v The Macedonian Orthodox Community Church St Petka Inc [2007] NSWCA 150 at [48]-[53] and [56].

[154]
Unlike the written submissions, the plaintiffs' notice of appeal to the Court of Appeal did not contain any material specifically directed to a failure to conduct a balancing exercise.

[155]
It provides:

[A]
trustee may reimburse himself or herself, or pay or discharge out of the trust property all expenses incurred in or about execution of the trustee's trusts or powers.

[156]
Similar questions have recently caused difficulty, and a measure of disagreement, in relation to s 59(4) and in relation to rights of indemnity of trustees under the general law, which is similar to that under s 59(4), in Gatsios Holdings Pty Ltd v Nick Kritharas Holdings Pty Ltd (In Liq ) [2002] ATPR 41 -864 and Nolan v Collie (2003) 7 VR 287 .

[157]
Metropolitan Petar v Mitreski [2003] NSWSC 262 .

[158]
It provides:
"In any proceedings with respect to the management or administration of any property subject to a trust or forming part of the estate of a testator or intestate, or with respect to the interpretation of the trust instrument, the Court may, if it thinks fit, order any costs to be paid out of such part of the property as in the opinion of the Court is the real subject matter of the proceedings."

[159]
(1905) 22 WN (NSW) 107.

[160]
(1998) 143 FLR 467 at 483-484.

[161]
His Eminence Metropolitan Petar, Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand v The Macedonian Orthodox Community Church St Petka Inc [2007] NSWCA 150 at [54].

[162]
(1998) 143 FLR 467 at 484.

[163]
Attorney-General v Murdoch (1856) 2 K & J 571 [ 69 ER 910 ]; Palairet v Carew (1863) 32 Beav 564 [ 55 ER 222 ].

[164]
Application of Macedonian Orthodox Community Church St Petka Inc (No 3 ) [2006] NSWSC 1247 at [80]-[81].

[165]
House v R (1936) 55 CLR 499 at 505 per Dixon, Evatt and McTiernan JJ.

[166]
Application of Macedonian Orthodox Community Church St Petka Inc (No 3 ) [2006] NSWSC 1247 at [82].

[167]
Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar, the Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand (2006) 66 NSWLR 112 .

[168]
Application of Macedonian Orthodox Community Church St Petka Inc (No 3 ) [2006] NSWSC 1247 at [80].

[169]
Application of Macedonian Orthodox Community Church St Petka Inc (No 3 ) [2006] NSWSC 1247 at [81].

[170]
Application of Macedonian Orthodox Community Church St Petka Inc (No 3 ) [2006] NSWSC 1247 at [62]: see above at [84].

[171]
A different complaint about the absence of a defence by the plaintiffs is considered below: [174]-[177].

[172]
Trustee Act 1925 (NSW), s 63(2).

[173]
See [67]-[68] and [73].

[174]
(2006) 66 NSWLR 112 .

[175]
Application of Macedonian Orthodox Community Church St Petka Inc (No 3 ) [2006] NSWSC 1247 at [21].

[176]
See [178]-[184].

[177]
[1965] AC 201 at 219 and 234 and 238.

[178]
Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar, the Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand (2006) 66 NSWLR 112 .

[179]
See [14].

[180]
See [15].

[181]
Application of Macedonian Orthodox Community Church St Petka Inc (No 4 ) [2007] NSWSC 254 at [14].

[182]
His Eminence Metropolitan Petar, Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand v The Macedonian Orthodox Community Church St Petka Inc [2007] NSWCA 150 at [125]-[126].

[183]
(1936) 55 CLR 499 at 505.

[184]
cf Singer v Berghouse (1994) 181 CLR 201 at 212 per Mason CJ, Deane and McHugh JJ applying Golosky v Golosky unreported, NSW Court of Appeal, 5 October 1993 at 13-14 per Kirby P; [1994] HCA 40 .

[185]
As to orders 5 and 6 , see Nissen v Grunden (1912) 14 CLR 297 at 321 ; [1912] HCA 35 .

[186]
Giles, Hodgson and Ipp JJA in His Eminence Metropolitan Petar, Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand v The Macedonian Orthodox Community Church St Petka Inc [2007] NSWCA 150 .

[187]
Application of Macedonian Orthodox Community Church St Petka Inc (No 3 ) [2006] NSWSC 1247 ; Application of Macedonian Orthodox Community Church St Petka Inc (No 4 ) [2007] NSWSC 254 .

[188]
At [25]-[27].

[189]
Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar, the Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand (2006) 66 NSWLR 112 at 123 [42], 125-126 [54]-[56] per Beazley and Giles JJA.

[190]
His Eminence Metropolitan Petar, Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand v The Macedonian Orthodox Community Church St Petka Inc [2007] NSWCA 150 at [2] per Giles JA, [7] per Hodgson JA, [81] per Ipp JA.

[191]
[2007] NSWCA 150 at [78].

[192]
[2007] NSWCA 150 at [2].

[193]
[2007] NSWCA 150 at [82]; and see at [2] per Giles JA.

[194]
The term used in the plurality judgment.

[195]
[2007] NSWCA 150 at [85].

[196]
[2007] NSWCA 150 at [7]; and see at [82] per Ipp JA.

[197]
See Australian Broadcasting Commission v O'Neill (2006) 227 CLR 57 at 78-81 [54]-[64] per Gummow and Hayne JJ; [2006] HCA 46 .

[198]
[2007] NSWCA 150 at [78] per Ipp JA, [7] per Hodgson JA.

[199]
Application of Macedonian Orthodox Community Church St Petka Inc (No 2 ) (2005) 63 NSWLR 441 at 445 [23].

[200]
At [106].

[201]
See Trustee Act, s 85(1) and (2).

[202]
Application of Macedonian Orthodox Community Church St Petka Inc (No 3 ) [2006] NSWSC 1247 at [50].

[203]
Reasons of Gummow ACJ, Kirby, Hayne and Heydon JJ at [89]-[96].

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