The Court has before it an application for approval of the settlement of certain charitable trust proceedings. On 23 June 2016, the Attorney General authorised the continuation of these proceedings as "charitable trust proceedings" under Charitable Trusts Act 1993, s 6(2A).
These proceedings have dealt with very substantial disputes within the Serbian Christian Orthodox community of Western Sydney. After a detailed hearing about the historical origins and the current state of some of these disputes, White J gave a comprehensive judgment in related proceedings analysing the issues and setting out principles that might lead towards their resolution: Bishop Irinej Dobrijevic & Anor v Free Serbian Orthodox Church, Diocese for Australia & New Zealand Property Trust & Ors [2015] NSWSC 637 and Free Serbian Orthodox Church Diocese for Australia and New Zealand Property Trust v Bishop Irinej Dobrijevic [2017] NSWCA 28.
Partly inspired by White J's judgment, the parties then sensibly took it upon themselves to give effect to the principles White J had stated, to see if they could settle upon a cy-près scheme to resolve their disputes here.
It is well established that charitable trust proceedings may be settled by compromise. The Court has inherent jurisdiction to approve the terms of such a compromise: Permanent Trustee Co Ltd v State of New South Wales & Ors (Supreme Court (NSW), Santow J, 23 November 1995, unreported) ("Permanent Trustee"). The consent of the Attorney General is a necessary condition to the Court's approval. The Attorney General consents here.
The Court is fortunate in this case in several ways. With the assistance of their legal representatives, the parties have taken to heart the need to resolve the proceedings by a cy-près scheme. They have negotiated a scheme which appears to the Court to be detailed, rational and practical in all respects. It evidences meticulous attention to detail and shows how practical effect can be given to the principles in White J's judgment to assure the future of the two charitable bodies the subject of these proceedings.
The Court has read Exhibit A (the Court book) and the detailed joint written submissions of the parties in which the parties advanced several reasons why the Court should be satisfied that the terms of the compromise are suitable for its approval.
Those reasons, with which the Court agrees, may be briefly restated. First, these proceedings arise out of complex disputes between the parties. Secondly, these disputes concern whether valuable property should be applied to one of two charitable entities. Thirdly, if the proceedings were to continue as a contested trial, the Court would be required to determine a substantial number of factual issues. Fourthly, the settlement will avoid significant expenditure on legal costs by all parties. Fifthly, the settlement provides for the application of the trust funds or trust property not only for the advancement of the purposes of the Serbian Orthodox Church and School Community "St George" of Cabramatta, but a fund is also set aside for the Free Serbian Orthodox Church Diocese for Australia and New Zealand through a new entity, in a way that appears to be rational and proportionate, looking at the matter objectively. Sixthly, the settlement appears to the Court to be consistent with the principles in White J's judgment. Seventhly, and this is a matter in itself of very considerable importance, it is self-evident from the detail of this settlement that it has been negotiated closely and over some time by the parties with the assistance of solicitors and counsel to produce a compromise which has then been consented to by the Attorney General. That consensus is itself an important factor favouring the Court's approval.
As Santow J said in Permanent Trustee - the Court is not to be regarded as a "mere cypher" in these cases. Rather, the Court has an independent obligation to satisfy itself generally that the proposed compromise is a proper one for the Court to sanction. The Court is so satisfied and is fortified in that satisfaction by the Attorney General's consent.
The Court's approach to the exercise of this jurisdiction to approve a negotiated settlement with the assistance of counsel and solicitors is perhaps no better expressed than in the words Santow J in Permanent Trustee about the process:
"What it does however allow is for the Court to assess the evidence in the body relying upon counsel to give a fair summation of that evidence in a fair manner without descending to microscopic detail in order for the Court to be so satisfied".
As in Permanent Trustee, the Court has been well assisted through the joint written submissions of the counsel and solicitors for the parties in this case. The materials before the court adequately summarise the evidence for the Court to be satisfied of the appropriateness of the settlement for its approval.
For those reasons, the Court will approve the settlement by making orders in accordance with the short minutes of order initialled by the Court, dated today, and placed with the Court papers.
[2]
Conclusion and Orders
The Court notes:
1. The Deed of Settlement between the Plaintiffs, the First Defendant (referred to as the Defendant in the Amended Summons filed 6 June 2017) and the Second Defendant dated 11 April 2018 which forms Annexure 1 to these orders;
2. The Deed of Variation of Settlement between the Plaintiffs, the First Defendant and the Second Defendant dated 18 October 2018 which forms Annexure 1(a) to these orders;
3. The resolution of 16 December 2017 of the Diocesan Council of the Free Serbian Orthodox Church Diocese for Australia and New Zealand (Free ANZ Diocese) appointing the Second Defendant as representative of the unincorporated association of persons comprising the Free ANZ Diocese for the purpose of these proceedings, which forms Annexure 4 to these orders.
4. That leave for the continuation of these proceedings as charitable trust proceedings has been granted by the Attorney General of New South Wales pursuant to sections 6(1)(a) and (2A) of the Charitable Trusts Act 1993 (NSW).
By consent, the Court makes the following orders:
[3]
Disposition of the Amended Summons
1. Orders in accordance with orders 4-5 of the Amended Summons filed on 6 June 2017.
[4]
Cy-près scheme
1. A declaration pursuant to section 9 of the Charitable Trusts Act 1993 that, in the circumstances, the original purposes of the trusts created by the instruments listed in Annexure 2 to these orders have, since they were laid down, in part ceased to provide a suitable and effective method of using the trust property, having regard to the spirit of the trust.
2. An order that that the cy-près scheme set out in Annexure 3 to these orders (the Scheme) be approved.
3. A declaration that the following items of property be held subject to the terms of the charitable trust identified as the SGSOCC Trust in paragraphs 1-3 of Annexure 3:
1. All of the property identified in Schedule 1 of the Amended Summons.
2. With the exception of an amount of $555,000 (which is the subject of Order 5), all of the compensation money, including any interest, to be paid by the Roads and Maritime Services for the acquisition of the land identified in Schedule 2 of the Amended Summons.
3. All personal property that is currently held pursuant to Rules 3 and 4 of the Constitution of the Serbian Orthodox Church and School Community 'St George' of Cabramatta.
4. Any property delivered to the First Plaintiff pursuant to Order 4 of the Amended Summons.
1. A declaration that the amount of $555,000 be held subject to the terms of the charitable trust identified as the Free Serbian Orthodox Church Greater Western Sydney Trust in paragraphs 6-10 of Annexure 3.
2. An order pursuant to section 70 of the Trustee Act 1925 appointing the Second, Third and Fourth Plaintiffs as trustees of the SGSOCC Trust defined by the Scheme.
3. An order pursuant to section 70 of the Trustee Act 1925 appointing the Second Defendant trustee of the Free Serbian Orthodox Church Greater Western Sydney Trust defined by the Scheme.
[5]
Costs
1. An order that the Attorney General's costs be paid by the Plaintiffs on a party/party basis from the SGSOCC Trust funds which form order 4(b) of these orders.
2. No order be made with respect to the costs of the Plaintiffs, the First Defendant and the Second Defendant with the intention that each of these parties bear their own costs, noting however the payment of $45,000 (plus GST) set out in clause 3(e)(2) of the Deed of Settlement shall be paid to the First Defendant.
(ANNEXURES NOT INCLUDED - CONTAINED IN EXHIBIT A)
[6]
Amendments
23 October 2018 - case citation added to paragraph 2.
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Decision last updated: 23 October 2018