Plaintiff v Defendant

1 In this proceeding, the supreme head of the Syrian (or Syriac) Orthodox Church of Antioch (the Syrian Orthodox Church),[1] His Holiness Moran Mor Ignatius, Patriarch of Antioch and all the East, Supreme Head of the Universal Syrian Orthodox Church of Bab Toma Damascus Syria (the Patriarch), seeks judicial advice under Order 54 of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) (the Rules) that it would be appropriate to defend a proceeding brought against him in this Court and to prosecute a counterclaim in that proceeding.

2 The Patriarch is the registered proprietor of 17 hectares of land located at 75 Whites Lane, Mickleham (the Mickleham land). Situated on the land are church buildings[2] used by a parish of the Syrian Orthodox Church known as the Saint Yacoub Syrian Orthodox Church Community (the Saint Yacoub Church Community).[3] Father Aphrem Afram is the parish priest at the Saint Yacoub Church Community.

3 In July 2023, the Patriarch entered into a contract of sale in relation to the Mickleham land (the contract of sale). The contract provides for the subdivision of the Mickleham land into four lots, with two to be sold and subdivided, and the remainder to be retained and developed for the use of the Syrian Orthodox Church community. The sale price for the two lots to be sold is $31.2 million. The contract of sale provides for a deposit of $3.12m to be advanced as an interest free purchaser loan to be repaid on settlement upon completion of the subdivision (the purchaser loan).

4 On 20 May 2024, the Patriarch entered into a contract to purchase land at 155 Bulla-Diggers Rest Road, Bulla (the Bulla land) to meet the future needs of the Syrian Orthodox Community. The purchase price of the Bulla land was $2.52 million.

5 On 30 August 2023, a member of the Saint Yacoub Church Community, Marcel Haddo, lodged a caveat on the Mickleham land (the caveat).

6 On 13 November 2023, Mr Haddo commenced a proceeding in the Court against the Patriarch in relation to the Mickleham land (the Trust Proceeding).[4]

7 On 1 May 2024, the Patriarch commenced a proceeding in the Court seeking orders for the removal of the caveat (the Caveat Proceeding).[5]

8 At the hearing of the Caveat Proceeding on 3 July 2024, upon Mr Haddo giving an undertaking as to damages and an undertaking to conduct the Trust Proceeding with all reasonable diligence, orders were made for the removal of the caveat and for the net proceeds of sale of the Mickleham land (which, it was common ground, does not include the purchaser loan) not to be disbursed without written agreement or further order, and for those funds to be held in the Patriarch's solicitor's trust account.

9 The purchase of the Bulla Land was completed on 17 February 2025. The purchase price[6] was paid by a loan of $450,000 from the Australia and New Zealand Archdiocese of the Syrian Orthodox Church; a loan of $1,000,000 from Samuel Issa, a member of the Syrian Orthodox Church; and $1,356,246.39 drawn from the bank account of the Saint Yacoub Church Community (which includes funds sourced from the purchaser loan).

10 Completion of the contract of sale in relation to the Mickleham land has been delayed. On 10 October 2025, the parties to the contract entered into a deed of variation extending the time for completion of the contract to 48 months from the day of sale, and for payment to the Patriarch by 24 October 2025 of a further advance of $2,500,000 as a further interest free loan.

11 The Trust Proceeding is fixed for trial on 17 February 2026 on an estimate of 4-12 days. The Patriarch seeks judicial advice that he would be justified in defending that proceeding (as well as prosecuting a counterclaim), and in paying his costs of that proceeding out of funds comprising the balance of the purchaser loan and income of the Saint Yacoub Church Community. The Patriarch relied upon a substantial body of affidavit material in support of his application.[7]

12 In the Trust Proceeding, Mr Haddo seeks, amongst other things, a declaration that the Mickleham land is held pursuant to a charitable trust (styled the 'Whites Lane trust'):

(a) on terms stated in a trust deed executed on 11 September 1979 (the 1979 trust deed) in connection with the administration of the Mar-Yacoub Syrian Orthodox Benevolent Society (the Society), a society formed in 1979 for the administration of the Saint Yacoub Church Community; or, alternatively,

(b) for the purposes of benefitting the Society and the Saint Yacoub Church Community.

13 It is necessary to provide some further background and limited elaboration as to how these claims are pleaded by Mr Haddo. Mr Haddo alleges that:

(a) in 1986, he, John Elia (a parishioner of the Saint Yacoub Church Community) and two others acquired land in Westmeadows (the Westmeadows land) as charitable trustees on the terms stated in the 1979 trust deed, or otherwise for the purpose of benefiting the Society and the Saint Yacoub Church Community;

(b) in 1992, the above trustees were replaced or reconstituted by Mr Haddo, John Elia and Father Afram as trustees of the said trust and, in 1993, they sold the Westmeadows land;

(c) in 1993, Mr Haddo, John Elia and Father Afram sold the Westmeadows land and then acquired the Mickleham land as charitable trustees for the Whites Lane Trust;

(d) the Mickleham land was acquired:

(i) using the proceeds of sale of the Westmeadows land, a loan from a bank secured by a mortgage over the Mickleham land, and from fundraising and donations from the Society and the Saint Yacoub Church Community;

(ii) without any monies from the broader Syrian Orthodox Church or the Previous Patriarch referred to below;

(e) in 1995 Mr Haddo, John Elia and Father Afram executed a transfer of land (the 1995 transfer) which conveyed the Mickleham land to Patriarch Mor Ignatius Zakka I, who held the office of Patriarch between 1980 and 2014 (the Previous Patriarch);

(f) upon the registration of the above transfer of land, the Previous Patriarch acquired the legal title to the Mickleham land subject to the Whites Lane Trust and did not acquire beneficial ownership; and

(g) upon the Patriarch assuming office on 29 May 2014 following the death of the Previous Patriarch, the Patriarch acquired the legal title to the Mickleham land subject to the Whites Lane Trust and did not acquire beneficial ownership.

14 In addition to relief declaring that the Mickleham land is held pursuant to the Whites Lane trust, Mr Haddo also seeks an order removing the Patriarch as trustee, insofar as he is trustee of the Whites Lane trust, and an order vesting the assets of the White Lane trust in him, John Elia and Father Afram. He also seeks declaratory relief that moneys paid and payable under the contract of sale are held pursuant to the Whites Lane trust.

15 In addition to the Patriarch, the other defendants to the Trust Proceeding are Father Aphrem Afram and the estate of John Elia (deceased).[8]

16 A Defence has been filed by the Patriarch and Father Afram. As is presently relevant, it is sufficient to note that they plead that the 1995 transfer was:[9]

... to the corporation sole, office or entity of the Patriarch of the Syrian Orthodox Church and was not a transfer to the individual person enthroned as Patriarch at that time, as is reflected in the terms of the registration of the Patriarch as proprietor.

17 The Patriarch also brings a counterclaim in the Trust Proceeding in which he seeks, amongst other things, a declaration that the Mickleham land is held by him as registered proprietor of a charitable trust having as its object the maintenance and propagation of the Christian faith through the Syrian Orthodox Church. The Patriarch alleges that these objects are to be implied from the usage of the Mickleham land.

18 In the counterclaim, the Patriarch also pleads his intention to take steps under the Religious and Successory Trusts Act 1958 for registration as the head of the Syrian Orthodox Church and for registration of the religious charitable trust on which the Mickleham land is held.[10] He seeks orders securing the purposes of the religious charitable trust by the making of a suitable administrative scheme and the registration of the trust under the Religious and Successory Trusts Act 1958. I was informed that the administrative scheme proposed by the Patriarch is in the form of that advanced by the Patriarch in an open offer of settlement made to Mr Haddo in May 2025.

19 The Patriarch has joined the Attorney-General of Victoria as a defendant to the counterclaim 'as a necessary party to the proceeding involving questions about the existence, purposes and administration of a charitable trust'.[11]

20 At the commencement of the hearing of the application for judicial advice, I heard applications for joinder brought by the Attorney-General of Victoria and by Mr Haddo.

21 As stated by John Dixon J in Sheppard v The Uniting Church in Australia Property Trust (Victoria),[12] it is well established that the Attorney-General is the proper and only competent party to protect a charitable trust, to seek to enforce the charitable purpose and to look after the interests of the public in such a trust.[13] Given that both Mr Haddo and the Patriarch contend in the Trust Proceeding that the Mickleham land is held on charitable trust, albeit for different purposes, the Court ordered that the Attorney-General of Victoria be added as a defendant to the proceeding. The Patriarch did not oppose the joinder of the Attorney-General.

22 The central contention by reference to which Mr Haddo sought leave to appear and to make submissions in the application for judicial advice was that, contrary to the Patriarch's claims, the Patriarch did not hold the Mickleham land as a charitable trustee, being the premise on which the application for advice was brought. It was submitted that the 1995 transfer rested on the incorrect assumption that the Patriarch is a corporation sole and that no attempt had been made to establish that the Patriarch was of such a character. It accordingly followed that the transfer of the Mickleham land to the Patriarch failed because the purported transfer was to an entity that had 'no existence comprehensible by the common law'. As a consequence, to the extent that the Patriarch held title to the Mickleham land, it was as a resulting trustee for the benefit of the transferors, Mr Haddo, Mr Elias and Father Afram; the Patriarch was a bare trustee of the Mickleham land and did not hold the land as a charitable trustee.

23 In circumstances where the Patriarch did not hold the Mickleham land as a charitable trustee, it was submitted that the Court should adopt what was said to be the general or usual approach whereby interested parties are given an opportunity to be heard in respect of applications by trustees for judicial advice.[14]

24 It was submitted that it was essential that this course be adopted and Mr Haddo be heard on the application for judicial advice because he would be prejudiced if he succeeded in establishing in the Trust Proceeding that the Patriarch did not hold the Mickleham Land as a charitable trustee. In that event, it may be expected that the Patriarch would lose his right of indemnity from the trust and Mr Haddo's position would be prejudiced because there was no evidence that the Patriarch had any assets in Australia from which Mr Haddo could seek to recoup his costs. More generally, the prospect of recovering funds from the Patriarch was inherently difficult because the Patriarch was domiciled in Syria.

25 Counsel for Mr Haddo acknowledged that, in applications for judicial advice, it was generally impermissible or inappropriate for the Court to determine substantive matters arising in a principal proceeding. However, it was submitted that this principle needed to be weighed against two countervailing principles.

26 First, the Patriarch had failed to put evidence before the Court to demonstrate his entitlement to raise the issues the subject of the application and, in particular, to properly plead on a reasoned evidentiary basis that he is a corporation sole. It was submitted that it was presently unnecessary for the Court to decide whether or not the Patriarch was a corporation sole and sufficient for the Court to determine that the Patriarch had failed to discharge the onus on him to provide an evidentiary basis for this critical premise on which his application for judicial advice rested. In those circumstances, it was submitted that the appropriate course was to require the Patriarch to provide further evidence on the matter, in the absence of which the application for judicial advice should be refused.

27 Secondly, counsel emphasised the importance for an applicant for judicial advice to satisfy the jurisdictional threshold under order 54 of the Rules. It was submitted that, if an applicant for advice cannot establish that they hold the charitable office that they assert, the essential jurisdictional threshold was not satisfied.

28 Mr Haddo's submissions on joinder invite the Court to depart from the established approach to be adopted in relation to applications for judicial advice. As the High Court observed in Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand[15] in relation to the analogue provisions in s 63 of the Trustee Act 1925 (NSW), proceedings for judicial advice have a 'summary character'[16] and operate as an exception to the Court's ordinary function of deciding disputes between competing litigants by affording a facility for giving 'private advice'.[17] A plaintiff in an application under Order 54 is not required to join as a party to the proceeding those persons with a beneficial interest under the trust;[18] even if notice of the application is given to other persons, they are not thereby rendered as 'parties' to the proceeding.[19] The High Court observed that the Court of Appeal of NSW was in error to treat the plaintiffs in the principal proceeding as being 'in a position of parity' with the association which had made the application for judicial advice.[20] There was:[21]

... no disharmony or lack of realism in treating the plaintiffs and the Association in the Main Proceedings as adversaries but recognising the Association, in the judicial advice proceedings, as trustee (for that it was) seeking judicial advice to which later it would be obliged to adhere.

29 The central question in relation to the Patriarch's application for judicial advice is whether, on the material available, it would be proper for the Patriarch to defend the Trust Proceeding and to prosecute the counterclaim. However, as stated by the High Court in Macedonian Church St Petka:[22]

... deciding whether it would be proper for a trustee to defend proceedings instituted about the trust is radically different from deciding the issues that are to be agitated in the principal proceeding. The two steps are not to be elided. In particular, the judicial advice proceedings are not to be treated as a trial of the issues that are to be agitated in the principal proceedings.

Mr Haddo's application for joinder is fundamentally inconsistent with this essential statement of principle.

30 It is apparent from the pleadings filed in the Trust Proceeding that it is common ground that the Mickleham land is the subject of a religious charitable trust; the central issue for determination will be to identify the specific nature and purposes of that trust. Those circumstances are far removed from applications for judicial advice brought in relation to private trusts where it may be expedient for beneficiaries to be heard. Moreover, the Attorney-General, as the protector of charities, has been joined as a defendant to the proceeding and has filed submissions in relation to the application for judicial advice. This distinguishes the present matter from Re Macedonian Orthodox Church Community 'Saint Dimitrij Solunski' Springvale Inc[23] where Derham AsJ allowed certain objectors to be heard on an application for judicial advice in relation to a charitable trust; in that case, the Attorney-General declined to assist the Court.[24]

31 I am also unpersuaded by Mr Haddo's claims of prejudice. The orders sought by the Patriarch provide that the judicial advice directions sought may be revoked or varied by an order of the trial judge, or in a subsequent order. This provides a facility for the Court to revoke any advice given, a mechanism which could be engaged following upon any findings made by the trial judge in the Trust Proceeding.

32 The Court accordingly dismissed Mr Haddo's application to be joined as a defendant in the proceeding or to be heard as an objector in the Patriarch's application for judicial advice.

33 The Patriarch sought an order that Mr Haddo pay his costs of the unsuccessful joinder application. The Court has a general discretion in respect of costs, including in relation to the administration of trusts.[25] In light of the Court's reasons for dismissing Mr Haddo's joinder application, I do not consider that he acted reasonably in bringing the application, being the principal basis upon which a costs order was resisted. Furthermore, exercising the discretion judicially, no separate ground of 'unfairness' has been demonstrated, as was submitted on his behalf. No good reason has been shown to depart from the usual rule as to costs.[26]

34 Rule 54.02 of the Rules derives from Order 55 rule 3 of the Rules of the Supreme Court 1883 (UK) and the practice of the Court of Chancery in giving directions to those entrusted with the administration of property under the control of the Court.[27] The Court may advise whether a trustee is justified in exercising powers in particular ways, without advising the trustee to do so.[28] A common instance is where a trustee seeks to prosecute or defend litigation about the trust.

35 As I have noted, r 54.02 is a summary procedure in which a trustee puts before the Court relevant circumstances and seeks a direction that, in those circumstances, the trustee would be justified in pursuing a certain course. The Court's sole purpose in giving judicial advice is to determine what ought to be done in the best interests of the trust.[29] The only jurisdictional criterion is the existence of a question in respect of the management or administration of the trust estate.[30]

36 Determining what is in the best interests of the trust will depend upon the type of trust and the circumstances of the case. In Macedonian Church St Petka, the High Court observed that, in cases involving conflict between beneficiaries and a trustee of a non-charitable private trust, it may not be correct for the Court to give a requested opinion, advice or direction.[31] That circumstance was contrasted with a charitable trust in relation in which it was observed that the same position does not necessarily apply because of the public interest involved, the fact that the parties are not making claims in relation to personal assets and where 'a crucial question is the precise terms of the purpose for which the trust exists'.[32]

37 In applications for judicial advice, as in the present case, generally two orders are sought: that the trustee is justified in instituting or defending the proceeding ('a justification order'); and that the trustee is entitled to be indemnified out of the trust for the costs incurred by the trustee in relation to the proceeding ('an indemnity order').[33] Although the considerations which bear upon the making of both types of order may overlap, it is necessary to consider each separately.[34]

38 The Attorney-General adopted a neutral position in relation to the application for judicial advice and neither consented to nor opposed the making of a justification order and an indemnity order.

39 The Patriarch seeks a direction that it would be appropriate, and that he would be justified, in defending the Trust Proceeding and prosecuting the counterclaim.

40 In determining whether to make such a direction, the Court's function is not to resolve issues in the Trust Proceeding, or to determine whether the Patriarch will likely succeed in his defence and counterclaim; the Court's task is to determine whether the defence and counterclaim are justifiable and not fruitless.[35]

41 I accept the Patriarch's submissions that he is justified in defending the Trust Proceeding and prosecuting the counterclaim. Two sets of issues are raised in the Trust Proceeding which warrant the making of the directions sought.

42 First, as I have noted,[36] Mr Haddo advances two alternative pleas in relation to the purposes of the Whites Lane Trust. Senior counsel for the Patriarch advanced various criticisms of these formulations which it is unnecessary to rehearse. It is sufficient to acknowledge that these criticisms are arguable and to recognise the conflict between those asserted purposes and the trust purposes pleaded by the Patriarch: the maintenance and propagation of the Syrian Orthodox Christian faith through the Syrian Orthodox Church, a purpose which has been recognised in previous cases dealing with different orthodox church communities.[37] In circumstances where, on the Patriarch's case, the 1979 trust deed does not express the purposes on which the Mickleham land is held, it is open for the Patriarch to contend that the trust purposes may be inferred from the use of the Mickleham land for the Syrian Orthodox faith based on the status of the Saint Yacoub Church Community as a parish of the Syrian Orthodox Church.

43 In substance then, the Trust Proceeding calls for determination as between two rival conceptions of the purposes of the charitable trust on which the Mickleham land is admittedly held: according to the terms of the 1979 trust deed or otherwise specifically for the benefit of the Saint Yacoub Church Community; or, alternatively, for the Syrian Orthodox faith more generally and the Syrian Orthodox Church. It is in the interests of the trust for these differences as to the purposes for which the trust exists to be determined; this favours the making of a direction that the Patriarch is justified in defending the trust proceeding and prosecuting the counterclaim.

44 The second set of issues concerns the relief which may be granted to best effectuate the trust. Such relief will self-evidently turn upon the resolution of the controversy as to the purposes of the trust as outlined above. The gravamen of Mr Haddo's submission is that the 1979 trust deed applies and that its provisions are essential such that the trust exists for the benefit of the Saint Yacoub Church Community. Amongst other things, Mr Haddo seeks an order that the assets of the Whites Lane trust vest in him, John Elias (who is deceased) and Father Afram (who opposes the claim) as trustees. In contrast, by his counterclaim, the Patriarch contends that the purposes of the trust may be better secured by an administrative scheme stating the trust purposes and providing the machinery to make those purposes fully effective. The Patriarch also accepts that retaining title in the name of the Patriarch as a registered proprietor of the Mickleham land as a corporation sole may not be appropriate. He proposes that a company limited by guarantee, be established as a new trustee in place of the Patriarch which would also take title subject to the administrative scheme. Just as it is in the interests of the trust for the differences in the asserted purposes of the trust to be determined, it is likewise in the interests of the trust to adjudicate between these competing claims of relief necessary to give effect to the administration of the trust.

45 I am fortified in the above conclusions by the Attorney-General's acceptance that there are serious issues that needed to be resolved in the Trust Proceeding in relation to the precise charitable purpose and terms upon which the Mickleham land is held, as well as whether the trust should be subject to an administrative scheme or similar.

46 The Court will usually be reluctant to sanction a course of action proposed by a trustee unless the trustee has taken reasonable steps necessary to form its own opinion on the matter.[38] The Patriarch has taken such steps by obtaining the advice of senior counsel.

47 Memoranda of advice from senior counsel was provided to the Court on a confidential basis pursuant to interlocutory orders made in the proceeding.[39] The Patriarch's primary submission was that it was unnecessary for the Court to consider the content of this advice because the submissions made on the application were sufficient to demonstrate that the Patriarch's claims in the Trust Proceeding were properly arguable. It was submitted that, although the practice had been for applications for trustee directions to be accompanied by an opinion from counsel, that practice had been reviewed by Edelman J in Plan B Trustees v Parker No (2)[40] who had concluded that 'the better view today may be that it should not be the practice of courts to assess the prospects of success of an action by reference to an "expert opinion" from senior counsel'.[41] This was because:[42]

First, it is no longer common for applications for directions to be made ex parte (by one side). The provision of a confidential, usually privileged, advice to the Court in proceedings inter partes (between the parties) in order to prove a required element for directions raises real questions of procedural fairness. Legal submissions can be made by counsel. Almost any matter which could be contained in an expert opinion could also be made in submissions.

Secondly, although there are constitutional and procedural anomalies in Australia arising from the historic practice of judges giving directions to a trustee, an 'expert opinion' from senior or experienced counsel on a matter of local law would not generally be admissible evidence for its content.

Thirdly, the provision of a legal opinion to the Court which is relied upon for its substantive content may raise difficult issues and real concern about waiver of legal professional privilege. The answers to those issues may be affected by the particular procedure and legislation in different States concerning trustee directions.[43]

48 The Attorney-General submitted that the confidential opinion of the Patriarch's counsel should be provided to the Court consistent with the usual practice adopted in this Court.[44] Further, it is relevant to note that the Attorney-General did not seek access to counsel's opinion.

49 I accept the submissions made on behalf of the Attorney-General on this issue. The observations by Edelman J on the practice of courts in assessing the prospects of success of an action by reference to a confidential opinion from counsel are not cast in definitive and universal terms. Plan B Trustees concerned an application for directions under s 92 of the Trustees Act 1962 (WA). In the final paragraph of the extract from his reasons for judgment referred to in [47] above, Edelman J expressly adverted to the potential relevance of different legislation and procedures concerning trustee decisions. In the footnote to that extract, his Honour referred to the judgment of the Court of Appeal of NSW in Macedonian Church St Petka (Court of Appeal) which concerned the analogous provision to Order 54 o[45]the Rules.45 In that matter, the Court of Appeal specifically referred to the 'usual practice' in proceedings for judicial advice for the court to be assisted by a le[46]l opinion.46 As Edelman J noted in the above footnote in Plan B Trustees, no application for special leave was brought from the judgment of the Court of Appeal. In related proceedings in the High Court, the Court did not consider[47]he matter.47

50 It is also significant that the first concern identified by Edelman J in Plan B Trustees in relation to procedural fairness does not arise in this matter. The only other party to the proceeding, the Attorney-General, is aware of the existence of counsel's opinion, but expressly does not seek access to it.

51 The usual practice in applications for judicial advice under Order 54 of the Rules is for the Court to be provided with a legal opinion in relation to the matter. The relevant principles and their rationale were set out by Derham AsJ in Avery v Manno[48] by reference to the judgment of Lindsay J in Re Estate Late Chow Cho-Poon; application for judicial advice,[49] which I apprehend reflects the practice adopted in New South Wales:[50]

It is the usual practice for the Court to be assisted on an application for judicial advice by being provided with a legal opinion.[51] Justice Lindsay of the Supreme Court of New South Wales has usefully stated the rationale for the provision of an opinion of counsel and the reasons for it in Re Estate Late Chow Cho-Poon; Application for judicial advice.[52] He observed that the opinion, usually from an independently-minded barrister, should be directed to the substance of each question identified for the Court's consideration.[53] But the law does not require such an opinion, nor can it be said that every application must be accompanied by such an opinion.[54] In practice, however, such an opinion is usually important because:

(a) the speed and efficiency with which an application for judicial advice can be dealt with derives from a combination of the efforts of both the legal profession and the Court;[55]

(b) a well drafted opinion provides comfort to the Court upon a consideration whether questions identified for the opinion, advice and direction of the Court are ripe for consideration;[56]

(c) the professional independence required of counsel in the analysis of a question stated for opinion, advice or direction adds value to counsel's opinion, for which he or she is professionally responsible, more than does a statement in the form of a mere submission;[57]

(d) an expression of opinion by counsel in a formal opinion may, if not the subject of legal professional privilege, provide a firm foundation upon which persons interested in the due administration of a trust may decide whether (and, if so, how) they should seek to participate in proceedings commenced as an application for judicial advice;[58]

(e) an efficient administration of the summary jurisdiction exercised by the Court is aided by the availability of a considered opinion, by competent counsel upon whose judgement the Court is entitled to rely, whether or not (upon due consideration) it decides to agree with, or differ from, counsel's conclusions;[59] and

(f) the availability of a formal opinion from counsel, prepared in anticipation of an application, may, at least in some cases, either forestall any need for an application to Court being pressed or establish parameters within which a dispute about the due administration of a trust may be litigated.[60] It might result in a consensus or crystallise questions in dispute, but if not it could provide a foundation for the trustee to 'build an estoppel' against interested parties who acquiesce in the trustee's action.[61]

52 Applying these principles, although the Court has been well assisted by fulsome submissions by senior counsel for the Patriarch, I considered it appropriate in the circumstances to consider counsel's opinion provided to the Court on a confidential basis. As referred to above, the independence of counsel and the confidential basis upon which the advice is provided lends weight and value to counsel's opinion beyond submissions made to the Court.

53 Having considered counsel's opinion, I was affirmed in my view that it is in the best interests of the trust for the controversy in relation to its precise charitable purposes of the trust to be determined, as well as determining the appropriate arrangements to give effect to the administration of the trust.

54 In conclusion, the jurisdiction of the Court being clearly enlivened, I am satisfied that there is a sufficient factual basis to justify the Patriarch in defending the Trust Proceeding and in prosecuting the counterclaim which I consider are properly arguable. Those claims concern important and complex matters pertaining to the precise charitable purposes of the trust pursuant to which the Mickleham land is held and the basis and arrangements upon which the that land will be held in the future. The following observations of the plurality in Macedonian Church St Petka apply and are apposite to the circumstances of this case:[62]

The fact that one of the purposes of proceedings for judicial advice is to protect the interests of the trust has particular importance where, as in this case, the trust concerned is a charitable purpose trust. In litigation brought by private persons having a particular view about the terms of a trust, the trustee will ordinarily be joined as a necessary and proper party to the proceedings. Unless some other party will act as contradictor, the burden of defending the suit will fall upon the trustee. If, as will often be the case with a charitable purpose trust, there is no other party that will act as contradictor, the claims made about the terms of the trust will go unanswered unless the trustee can properly resort to the trust funds to meet the costs of defending the litigation. And even if there is another party that will act as contradictor, it is almost always desirable, even necessary, for the trustee to take an active part in the proceedings so that issues are properly ventilated and argued.

55 The Court will order that the Patriarch would be justified in defending the Trust Proceeding and prosecuting the counterclaim.

56 At the hearing of the application for judicial advice, the Patriarch sought indemnification orders in the following terms:

(3) The plaintiff is directed that it would be appropriate, and the plaintiff would be justified in, paying his costs incurred in the Trust Proceeding as from 4 August 2025 out of funds representing the balance of the purchaser loan and income of the Saint Yacoub Syrian Orthodox Church (ABN 95 600 229 475) other than the further advance or net proceeds of sale payable under the contract of sale.

(3A) Until further order, the costs referred to in paragraph 3 are capped or limited in the amount of $506,875.

57 The Patriarch also proposed that the above orders (and the justification order) be explicitly subject to a further order that they are 'subject to, and may be revoked or varied by, an order of the trial judge in the Trust Proceeding or by subsequent order in this proceeding on application under liberty to apply'.

58 The following matters drawn from the submissions and evidence are to be noted in relation to the above orders sought by the Patriarch:

(a) The date of 4 August 2025, from which the indemnity is proposed to commence, corresponds with the date the application for judicial advice was filed with the Court.

(b) The balance of the purchaser loan as at 24 October 2025 (the most recent date addressed in the evidence) was $499,429.43.

(c) The 'further advance' is a reference to the further advance of $2,500,000 referred to in [10] above.

(d) For the 2024 financial year, the principal sources of income for the Saint Yacoub Church Community[63] were donations of $110,800.20 and income from a mobile phone tower for $52,867.22.[64] The draft financial report for the 2025 financial year records total income of $183,694.55.[65]

(e) The proposed 'costs cap' of $506,875.11 is based upon the evidence of the principal of the Patriarch's solicitors, Johnathon de la Hoyde. He deposed that this amount is the sum of the fees incurred from the commencement of this proceeding to 29 October 2025 ($117,308.61) and the estimated future fees from that date until the end of the trial ($389,566.50). The latter estimate was determined on the assumption that the trial will proceed for 10 days, and by reference to his estimate of his firm's professional costs and estimates provided by counsel retained for the trial.

59 As to the costs cap referred to above, mindful that the Court's present task is not to act as a taxing master or assessor in relation to the Patriarch's costs,[66] the nature and detail of the above evidence is sufficient for the Court to ascertain broadly whether the quantum of the costs appear appropriate.[67] I am satisfied that those costs are broadly appropriate having regard to the nature and complexity of the Trust Proceeding and the estimated length of the trial.

60 It was common ground that, even if a justification order is made in a Beddoe application, it may not necessarily be appropriate for a court to make an indemnity order. It may instead be appropriate to defer that question until the hearing and determination of the main proceeding by the trial judge.[68] However, in this matter, it is a matter of significance that the Attorney-General informed the Court that, in the circumstances of the case, she did not consider that deferral of the question of costs was necessary. This was because the Patriarch had proposed that the indemnity order be subject to, or revocable or variable by, an order of the trial judge in the Trust Proceeding, or by subsequent order in this proceeding, thereby negating the need for the question of costs indemnification to be deferred until the trial. I accept these submissions.

61 Although a trustee is entitled to an indemnity for costs properly incurred in the performance of their duties,[69] a trustee will not ordinarily be permitted recourse to trust assets for the purpose of defending proceedings, unless the 'expenditure from trust resources will not be futile' or 'fruitless'.[70] Given that the costs cap is only a small percentage of the value of the trust property in the form of the Mickleham land, the Court can be readily satisfied that the proposed expenditure of resources will not be futile. Furthermore, the interests of the trust are protected because the terms of the proposed indemnity order quarantine the net proceeds of sale of the Mickleham land and the further advance from being used to fund the Patriarch's defence of the Trust Proceeding and the counterclaim. It is also essential to recall that the permitted use of the identified funds under the proposed indemnity order would be for the purpose of funding legal proceedings which the Court has found the Patriarch would be justified in conducting in the best interests of the trust. The interests of the trust are also protected by the fixing of a costs cap and the inclusion within the order of the facility to allow for its revocation or variation.

62 The Court will accordingly make an indemnification order substantially in the form proposed by the Patriarch.

[1] Also known as the Universal Syrian Orthodox Church of Bab Toma Damascus Syria.

[2] The church domain occupies only around 2000 square metres of the Mickleham land.

[3] The affairs of the Saint Yacoub Church Community are reported through a registered charity, St Yacoub Syrian Orthodox Church (ABN 95 600 229 475), which is registered with the Australian Charities and Not-for-profits Commission.

[4] Proceeding S ECI 2023 05295. A writ was filed but not served on the above date. A statement of claim was subsequently on 2 September 2024.

[6] Being $2,806,246.39, with adjustments.

[7] Two affidavits of Daniel Ivers, a solicitor in the employ of the solicitors for the Patriarch, filed 4 August 2025 and 24 October 2025; an Affidavit of Johnathon de la Hoyde, director in the employ of the Patriarch's solicitors, filed 29 October 2025; an Affidavit of His Eminence Mor Malatius Malki Malki, Metropolitan Archbishop of the Australian Archdiocese of the Syriac Orthodox Church, filed 4 August 2025; and an Affidavit of Edward Dakhoul, Group General Manager of Construction Consultants, filed 4 August 2025. A confidential affidavit of Daniel Ivers was also filed on 1 October 2025: see [47]-[52] below.

[8] A grant of representation has not been made in relation to John Elia's estate.

[9] Patriarch's Amended Defence and Counterclaim dated September 2025, [16(2)].

[10] Patriarch's Amended Defence and Counterclaim dated September 2025, [50].

[11] Patriarch's Amended Defence and Counterclaim dated September 2025, [40]. The Registrar of Titles has also been joined to the proceeding to give effect to orders sought providing for the registration of the trust.

[12] [2020] VSC 12.

[13] Ibid [5], citing Bathurst City Council v PWC Properties Pty Ltd [1998] HCA 59; (1998) 195 CLR 566, 583 [39].

[14] See the discussion by Croft J in Charlesworth Nominees Pty Ltd v Charlesworth [2017] VSC 445; (2017) 54 VR 155, [6]-[9] ('Charlesworth').

[15] [2008] HCA 42; (2008) 237 CLR 66 ('Macedonian Church St Petka').

[16] Ibid [61]-[63] ('Macedonian Church St Petka').

[19] Macedonian Church St Petka (n 15) [65].

[23] [2020] VSC 274 ('Re Macedonian Orthodox Church Community 'Saint Dimitrij Solunski' Springvale').

[25] Supreme Court Act 1986, s 24.

[26] Northern Territory v Sangare [2019] HCA 19; (2019) 265 CLR 164, 173 [25].

[27] Macedonian Church St Petka (n 15) [34] fn [48]; Re Application of Macedonian Orthodox Community Church St Petka (No 2) [2005] NSWSC 558; (2005) 63 NSWLR 441, 445-446 [21]-[23] (Palmer J).

[28] J D Heydon and M J Leeming, Jacobs' Law of Trusts in Australia (Lexis Nexis, 8th ed) [21-34].

[29] Macedonian Church St Petka (n 15) [104]-[105], referring to Marley v Mutual Security Merchant Bank & Trust Co Ltd [1990] UKPC 44; [1991] 3 All ER 198, 201.

[30] Macedonian Church St Petka (n 15) [58].

[33] Hopkins v Edwards [2020] VSC 456, [192] ('Hopkins v Edwards').

[35] Application by GAV Vic Pty Ltd [2022] VSC 516, [12]-[14], citing with approval _Charlesworth (_n 14) [13].

[37] St John Prodromos [2000] VSC 12, [137], [142]; Radmanovich [2001] NSWSC 492; (2001) 52 NSWLR 641, 677-678; Bishop Rinej [2015] NSWSC 637, [522].

[38] Plan B Trustees Ltd v Parker (No 2) (2013) 11 ASTLR 242, [48] (Edelman J).

[39] Exhibit CDI-1 to the confidential affidavit of Daniel John Ivers filed 1 October 2025.

[40] Plan B Trustees Ltd v Parker (No 2) (2013) 11 ASTLR 242, [48] ('Plan B Trustees').

[42] Ibid [43]-[45] (emphasis in the original).

[43] See, in relation to different statutory provisions, Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar, the Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand & Anor [2006] NSWCA 160; (2006) 66 NSWLR 112 ('Macedonian Church St Petka (Court of Appeal)'). No application for special leave was brought and the plaintiffs failed in a later attempt, in a different stream of litigation, to challenge the decision by notice of contention or cross-appeal: Macedonian Church St Petka (n 15) 121 [169]-[170], 123-124 [178]-[184] (Gummow ACJ, Kirby, Hayne & Heydon JJ).

[44] Citing Re The Macedonian Orthodox Community 'Saint Dimitrij Solunski' Springvale (n 23), [59].

[45] Section 63 of the Trustee Act 1925 (NSW).

[46] Macedonian Church St Petka (Court of Appeal) (n 43) [53] (Beazley and Giles JJA).

[47] See Macedonian Church St Petka (n 15).

[48] (2020) 62 VR 281 ('Avery v Manno').

[49] [2013] NSWSC 844 ('Re Estate Late Chow Cho-Poon').

[51] Macedonian Church St Petka (Court of Appeal) (n 43) [53].

[52] [2013] NSWSC 844. Justice Lindsay was, before his elevation to the Bench, Senior Counsel for the successful appellant in the High Court in Macedonian Church St Petka.

[53] Re Estate Late Chow Cho-Poon (n 49) [108] (Lindsay J).

[62] Macedonian Church St Petka (n 15) [73].

[63] Which is a registered charity: see (n 3) above.

[64] The relevant profit and loss statement also refers to 'other income' of $3,120,000 being the purchaser loan.

[66] Re Application of Macedonian Orthodox Community Church St Petka Inc (No 4) [2007] NSWSC 254, [13] ('Macedonian Church St Petka (No 4)').

[68] See Re Frosthollow Pty Ltd [2015] VSC 512, [11]; Hopkins v Edwards (n 33) [196] as to the factors which may be considered in determining whether the issue of indemnification should be deferred.

[69] See s 36(2) of the Trustee Act 1958; r 63.26 of the Rules. See also Hopkins v Edwards (n 33) [218].

[70] See Re Anglican Property Trust Diocese of Bathurst [2016] NSWSC 13, [14] (Slattery J) referring to Re Application of Macedonian Orthodox Community Church St Petka Inc (No 3) at [40] (Palmer J) and _Macedonian Church St Petka (No 4) (_n 66) [6] (Palmer J).