Application of Macedonian Orthodox Community Church St Petka Inc

HIS HONOUR: The application before the Court is an application by the plaintiff (Association) who was a trustee of a charitable trust for an order pursuant to s 63 of the Trustee Act 1925 (NSW) (Trustee Act) that it would be justified in:

I note at the outset that I have been considerably assisted by the submissions of counsel for the Association and the solicitors. I have been able to move directly to providing advice and giving reasons for judgment with the assistance of such submissions on which I have drawn to a large extent and, in addition, on my part, other caselaw and principles to which I will refer.

Counsel for the solicitors supports the application for advice.

The materials in support of the application for advice included an Opinion given by Mr Andrew Fernon SC (Opinion). The parties have confirmed that the Opinion is not to be regarded as confidential and may be referred to in these reasons.

The solicitors are partners of the firm McConnell Jaffray and are the solicitors who formally acted for the Association from approximately March 1999 to 2014 in complex and long running proceedings between the Association and the Bishop for the Australian and New Zealand diocese of the Macedonian Orthodox Church (main proceedings).

The main proceedings were commenced in 1997. They continued for more than 20 years. Counsel has indicated that there are some 98 judgments that have been delivered in relation to the main proceedings.

One of those judgments is the landmark decision of the High Court in which the High Court reviewed the statutory power under s 63 Trustee Act to give judicial advice: Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42 (Macedonian Church Case (HCA)). The decision became, in effect, a watershed moment in which the High Court construed the statutory provision by reference to text, context and purpose, and reset the legal community’s understanding of s 63 on a proper footing untrammelled by limitations expressed in caselaw but not found in the statutory provisions.

The nature of the claims in the main proceedings was described by the High Court in the following terms at [4] (footnotes omitted):

Mr Walker summarised the primary issue in the main proceedings as being in substance the role of the Association as custodian of the property.

In 2003, the Association was held to be trustee of a charitable trust pursuant to which it held property for the use by the Macedonian Orthodox Church St Petka as a site for a church of the Macedonian Orthodox religion and for other buildings and activities associated with or ancillary to, the encouragement, practice or promotion of the Macedonian Orthodox religion: Metropolitan Petar v Mitreski [2003] NSWSC 262 (Hamilton J decision).

Throughout the course of the main proceedings, various issues arose and were debated. These included the terms and objects of the charitable trust, identification of, and questions arising out of the property held on trust and whether the Association had acted in breach of its duties as trustee of a charitable trust. Further, there were applications by the Association as noted above for judicial advice and questions as to the availability of trust assets to indemnify the Association for its costs.

Importantly, for the purposes of this application, the Hamilton J decision in April 2003 determined that the property the Association held as trustee of the charitable trust included land at Arncliffe (land or the Arncliffe property).

On 8 June 2006, the solicitors sought from the Association and were granted a mortgage over the land to secure payment of their fees for acting for the Association (mortgage).

In 2014, the solicitors had their costs of acting for the Association assessed. The assessment resulted in certification by a costs assessor which required the Association to pay approximately $985,650 to the solicitors.

The solicitors exercised the power of sale under the mortgage and transferred the land to a third party on or about 11 March 2016.

In 2018, the solicitors had further costs of acting for the Association assessed. Those costs were also certified by a costs assessor and a determination required the Association to pay an additional approximately $783,000 to the solicitors.

In 2018, the proceedings which were already complicated became more vexed.

The Association, relying upon what was said to be false evidence given in proceedings heard by Stevenson J (His Eminence Petar the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand v Kotevich [2014] NSWSC 1215), asserted that orders made in the main proceedings had been procured by fraud and ought to be set aside.

The Attorney General authorised the Association to seek judicial advice in respect of proceedings to set aside the orders made in the main proceedings on the basis of the alleged fraud. The Association obtained judicial advice that it was justified in commencing such proceedings.

In December 2018, such proceedings were commenced by a statement of claim (2018 proceedings).

Those 2018 proceedings were never determined by the Court because, in 2020, a settlement was reached which finalised the decades-long litigation (Church settlement deed).

The materials before the Court contain consent orders in a number of proceedings by which this occurred.

In the main proceedings, by consent the Court made orders (see CB 655) that the balance of the proceedings be dismissed with no further order as to costs (with the intention that all declarations and orders previously made in the proceedings and the appeal therefrom (Macedonian Orthodox Community Church St Petka Incorporated v Metropolitan Petar [2013] NSWCA 223) remained undisturbed).

The 2018 proceedings were by consent dismissed with no orders as to costs with the intention that each party pay his or its own costs of the proceedings.

In addition, proceedings in the (then) Federal Circuit Court of Australia were by consent dismissed with no order as to costs.

On 13 December 2021, orders were made by Slattery J which brought the main proceedings to an end. Notably, when making those orders, his Honour recorded that the previous orders remained undisturbed.

On 17 February 2022, these proceedings were commenced by the Association by a summons supported by an affidavit from its solicitor, Thomas Russell.

Subsequently, the Association sought authorisation from the Attorney General pursuant to the provisions of s 6 of the Charitable Trusts Act 1993 (NSW) for leave for the proceedings.

In the course of seeking the Attorney General’s approval and at the request of the Attorney General the Association prepared a statement of claim pleading its case against the solicitors.

In the proceedings the Association seeks to recover from the solicitors a sum of money which represents the amount received from the sale of land in excess of a sum approved by the Court in 2007 for payment of the Association’s legal costs. The excess sum has been calculated as being either approximately $1.442 million or $1.29 million.

The progression of the proceedings saw a draft statement of claim prepared which has never been filed.

In the draft statement of claim, the Association’s claims may be summarised as follows:

The solicitors for their part strongly opposed the proceedings being authorised by the Attorney General.

Notwithstanding that they had no at least direct opportunity to file a verified defence to a filed statement of claim (because no such claim was ever formerly filed), they provided to the Attorney General detailed submissions setting out their position supported by a chronology.

It is not necessary to go deeply into the detailed submissions which set out the chapter and verse of their opposition. However, some salient aspects of it may be summarised as follows:

By reason of the Association’s admission of breach of trust the solicitors indicated that they would, to the extent that they were held liable, seek contribution by way of cross-claim against the Association.

The solicitors also relied on other matters such as the principle that the Association was approbating and reprobating in its assertions that the claim was statute-barred and that there was a conventional estoppel and a lack of clean hands in respect of seeking equitable relief.

On 25 July 2022, the Attorney General authorised the continuation of the proceedings.

However, the Attorney General strongly recommended that the Association and its solicitors participate in a mediation at the earliest opportunity.

On 27 September 2022, the parties did attend a mediation.

At the time of a mediation between the Association and the solicitors, the solicitors claimed to have a sum of approximately $891,437 owing to them in respect of the costs assessments after accounting for the sale of the land and including accrued interest.

Whilst at that time no statement of claim or defence or cross‑claim had been filed, the position and arguments of the solicitors were well understood. The solicitors prepared a position paper for the purposes of the mediation which reflected their prior detailed submissions to the Attorney General.

It may be noted that often a position paper can set out a defence and cross-claim with more clarity than a pleading can sometimes do.

At the mediation, the Association and solicitors entered into a non‑binding heads of agreement setting out terms of settlement which were subject to Court approval and on the basis that terms of settlement would be recorded ultimately in a deed as between them.

On 3 March 2023, a deed was entered into. The deed expressly indicates that if this application is unsuccessful, it terminates and the parties are left with their rights against each other, which they would have had if the deed had never been entered into.

The settlement recorded in the deed requires the Association to pay to the solicitors the sum of $367,500 by instalments and upon orders being made by the Court justifying the settlement on the terms in the deed, these proceedings will be dismissed with no order as to costs. The deed also contains provision for mutual release as between the parties.

On 13 July 2023, I directed that notice of this application be brought to the attention of the Attorney General. That has been done. On the hearing of the matter this morning, Mr Walker adduced further evidence being an affidavit from Michael Mournehis sworn 21 July 2023 providing evidence that the Crown Solicitor’s Office has indicated that the Attorney General does not wish to be heard on the application.

In Application of Doolan [2023] NSWSC 320 (Application of Doolan), I addressed the power of the Court to give judicial advice. I stated as follows (at [287]-[308]):

I further addressed the question of the protection afforded pursuant to s 63(2) Trustee Act in Application of Doolan at [332]-[379].

I concluded regarding that protection as follows (at [380]-[388]):

The question of whether proceedings may be appropriately settled is a well-recognised category of judicial advice.

Mr Walker, in his detailed and helpful submissions, drew my attention to the decision of Sackar J in Robert Peter Campbell ATF the Joan Macpherson Trust and the Banandra Pastoral Settlement Trust [2016] NSWSC 1751.

His Honour there considered whether the trustee was justified in settling proceedings commenced by him on terms contained in a deed of settlement.

Sackar J noted that while there is a distinction between questions as to whether, on the one hand, it is in the best interests for the trust estate for litigation to be conducted and, on the other hand, whether the trustee should be entitled to indemnity out of the trust property for its reasonable costs of litigation, the two questions are interrelated: at [34].

In addressing questions regarding settlement of litigation, Sackar J drew upon the decision of Palmer J in Application of Macedonian Orthodox Community Church St Petka Inc (No 3) [2006] NSWSC 1247. Palmer J there addressed the issue as to whether a trustee was justified in proceeding with litigation.

The considerations referred to by Palmer J which were cited by his Honour included the following matters (at [35]):

Clearly, those matters and other matters are also applicable to the question of whether a trustee ought to be advised that the trustee is justified in settling litigation. I accept the submissions of Mr Walker in this regard.

Mr Walker properly in relation to the matter drew my attention to previous orders that had been made in respect of the main proceedings.

He submitted that as the orders sought in the application would justify the use by the Association of trust assets to pay the settlement sum to the solicitors and to meet its costs of the proceedings that regard should be had to the Opinion of senior counsel regarding the importance of considering the orders previously made and judgments previously given which affect the use of trust assets and the payment of the Association’s legal costs.

Mr Walker noted that Mr Fernon SC’s Opinion contained a lengthy and detailed analysis of the history of issues in judgments recorded and orders made in the main proceedings.

It is unnecessary to delve into detail regarding that history. However, Mr Walker, in particular, drew to my attention orders that had been made by Brereton J (as his Honour then was) in Metropolitan Petar v Mitreski [2012] NSWSC 167 in which his Honour made orders (Brereton J orders) as follows:

In respect of order 7 of the Brereton J orders, Brereton J noted that the question of indemnity is a complex one which would require some days of court time but may well not have to be determined: at [21].

Mr Walker, in particular, directed my attention to the provisions of the injunctive relief in order 8 of the Brereton J orders (Brereton J order 8).

Mr Walker explained the concern regarding the Brereton J orders in part by reference to comments made by Slattery J in a subsequent decision. On 29 January 2018, Slattery J, in His Eminence Petar the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand v Lambe Mitreski [2018] NSWSC 13 noted at [24] that the Association’s delay in taking steps to resolve the question of indemnity from trust assets was explained by the plaintiff in the main proceedings not having taken steps to enforce costs orders.

In particular, his Honour recorded at [27] the following:

Further, his Honour noted in substance that the Association would now be able to claim an indemnity out of trust assets. His Honour stated as follows (at [52]):

My understanding of the matter, which both counsel agreed with, is that the provisions of Brereton J order 8 constitute an interlocutory injunction. I am informed that in the history of the litigation, which was resolved, the injunction was never formally discharged or set aside.

There is some question about whether it continues to have any effect.

The nature of Brereton J order 8 was termed as being until further order or pending the determination of questions reserved.

Mr Walker noted there was a question whether Brereton J order 8 was still operative in a context in which (using the wording of the order) there was:

However, as a matter of construction, a dismissal of the proceedings, in my opinion, is a “further order” for the purposes of Brereton J order 8.

The inherent character of the injunctive relief dealt with by Brereton J is such that it was provisional and would not be a form of permanent injunction.

Sometimes, interlocutory injunctions are made early in proceedings which on the final hearing of proceedings are by orders made permanent. The injunction ordered by Brereton J is not of this character.

Whilst senior counsel, in his Opinion, was properly concerned to address the question of whether the orders of Brereton J, in particular, order 8, had a continuing effect, I am comfortably satisfied that it does not bear that character.

Senior counsel, in his Opinion, addressed a series of matters which are said to be relevant to the question of the availability of an indemnity from trust assets.

This was addressed in [114] of the advice and following. Matters senior counsel referred to included the fact that many orders had been made and advice given permitting recourse to trust property to pay legal costs and disbursements.

There are statutory provisions for indemnity and also general law provisions.

A trustee is personally liable for both debts and liabilities incurred in the administration of a trust and those incurred in its personal capacity; eg ACES Sogutlu Holdings Pty Ltd (in liq) v Commonwealth Bank of Australia (2014) 89 NSWLR 209; [2014] NSWCA 402 at [16] per Leeming JA (Beazley P – as her Excellency then was – and Macfarlan JA agreeing).

If a trustee, acting within its powers, incurs a liability to a third party in the course of the administration of the trust, although the trustee is generally personally liable to the third party, it is entitled to have recourse to trust assets by way of an indemnity; Commissioner of Stamp Duties (NSW) v Buckle (1998) 192 CLR 226; [1998] HCA 4 at [47].

A trustee’s right to indemnity was the subject of further examination by the High Court in Carter Holt Harvey Woodproducts Australia Pty Ltd v The Commonwealth (2019) 268 CLR 524; [2019] HCA 20 (CCHWA) at [40], [44] per Kiefel CJ, Keane and Edelman JJ, at [92] per Bell, Gageler and Nettle JJ and at [155], [156] per Gordon J.

It has been said that the purpose of the power of exoneration is not to exonerate the trustee’s personal state unconditionally. Rather, it is to exonerate the trustee’s estate only from authorised liabilities incurred in the course of the business or administration of the trust: CCHWA at [40] per Kiefel CJ, Keane and Edelman JJ.

Whether a trustee has incurred a liability in the performance of the trust depends upon that being the correct legal characterisation of what occurred. The characterisation cannot be determined by the label or description given to the relevant conduct by the parties to it, rather, it depends upon whether the conduct or action was, or must be taken to have been, undertaken in the proper execution of the trust: TFML Ltd v MacarthurCook Fund Management Ltd [2013] NSWCA 291; (2013) 31 ACLC 13-046 at [70] per Meagher JA (McColl and Macfarlan JJA agreeing).

In his Opinion, senior counsel referred to the provisions of r 42.25 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) addressing the costs of a trustee noting that the rule provides that unless the Court orders that a trustee’s costs not be paid, the costs are entitled to be paid. Of course, the provisions of r 42.25 are subject to the Court’s overriding discretion in relation to the question of costs.

There is an interesting question as to whether the existence of allegations against a trustee precludes the giving of advice.

There is no necessary implication that excludes a question from the ambit of the power of the Court to give advice because the subject of the question is the liability of the trustee for a breach of trust, when the potential basis for that liability is a matter of the management or administration of the trust property; Re Perpetual Trustee Company Limited as trustee for the Joseph Babington Davis Settlement [2020] NSWSC 1574 (Davis Settlement) at [89] per Robb J citing Macedonian Church Case (HCA) at [55]-[58].

Whilst it is possible to find conflicting caselaw statements regarding the issue as to whether a trustee is precluded from seeking judicial advice in circumstances where the subject of the question is the liability of the trustee for a breach of trust, it is important not to approach the provisions of s 63 with implied limitations on power: Macedonian Church Case (HCA) at [55]-[57].

In particular, the fact that the conduct allegedly constituting the breach of trust has already occurred is not a definitive answer to the question as to whether the Court ought to give advice: Davis Settlement at [85], [91].

It has been recognised that a trustee is (or may be) entitled to be paid its costs out of a trust estate in a proper case where the trustee has defended the suit for the benefit of the trust estate even though at the same time the trustee has defended his, her or its own conduct or character: Kirwan v Cresvale Far East Ltd (in liq) [2002] NSWCA 395; (2002) 44 ASCR 21 at [430] per Young CJ in Eq.

The potential for a trustee to have personal liability for a breach of trust does not mean that advice cannot be given. The trustee may be entitled to an indemnity for its costs out of trust assets if it wins and also, potentially, if it loses. That is because the trustee has accepted an onerous liability to manage and administer the trust and the circumstances of the breach might be such that the Court does not consider it sufficiently serious or blameworthy to warrant the loss of the trustee’s indemnity: Davis Settlement at [94].

There is also the possibility that a trustee may be excused under s 85 Trustee Act in cases where there has been a failure to seek judicial advice under s 63.

Until the Court makes a decision that denies to the trustee the ordinary right of indemnity, the possibility that a trustee’s costs will be paid out of the assets of the trust means that the conclusion of the suit against the trustee will not generally conclude the administration of the trust. That is so even if all that remains to be done by the trustee is to transfer the assets to beneficiaries who are entitled to those assets: Davis Settlement at [94].

Of course, in the case of charitable trusts there are no beneficiaries. Nonetheless, the general principle regarding the decision the Court makes is applicable.

Ultimately, the question as to whether a trustee is given advice permitting access to trust funds will depend upon the particular circumstances of the case and whether it is in the interests of the trust as a whole.

One approach to judicial advice is to characterise the type of the dispute before the Court and there may be nuances of approach that the Court takes depending on the type of dispute.

Where there is no challenge to a trustee’s conduct, or, in the case of what is described as a type of “third party dispute”, a trustee has a prima facie right to indemnity from the trust estate: Frost v Bovaird (2012) 203 FCR 95; [2012] FCAFC 60 (Frost v Bovaird) at [53]-[55] per Jacobson, Siopis and Nicholas JJ citing Alsop Wilkinson (a firm) v Neary [1996] 1 WLR 1220 at 1223-1224 per Lightman J.

However, where there is a challenge to a trustee’s conduct, the position is said to be different and, subject to what is noted below, it is said that there is no prima facie right to indemnity: see Frost v Bovaird at [69]-[70].

However, that does not mean that there are no circumstances where a trustee against whom this conduct is alleged will be entitled to rely upon the right of indemnity to have its legal costs paid from the estate.

In disputes where misconduct is alleged, judicial advice provides a means by which a trustee pending the determination of the claim may be able to have resort to trust funds in order to pay the legal costs incurred in defending the claim or parts of the claim without fear of being found liable for breach of trust in doing that: Frost v Bovaird at [74].

Such advice may be on terms that the orders are subject to being revoked either by subsequent advice or by the judge in the main proceedings: Macedonian Church Case (HCA) at [89].

Indeed, the Court may, in cases involving alleged misconduct, order that the trustee has a right to indemnity after the claim has been dismissed or discontinued against the trustee: Frost v Bovaird at [73] citing Armitage v Nurse [1998] Ch 241.

In Hodges v Waters (No 7) (2015) 232 FCR 97; [2015] FCA 264 (Hodges v Waters), Perram J dealt with an application for judicial advice where the trustee asked the Court to approve settlement of proceedings.

As is evident from the principles I have outlined above, his Honour noted that the discretion under s 63 is not expressed to be subject to limitations and what will be germane to its exercise will depend upon the context. His Honour noted that the sole purpose in giving judicial advice is to determine what ought to be done in the best interests of the trust estate citing Macedonian Church Case (HCA) at [105]: Hodges v Waters at [69].

His Honour noted that in cases where a trustee approaches the Court for advice regarding settlement of proceedings, there may be a number of issues, but two basic issues arise. One is whether the terms of the settlement are of such a kind that it is in the best interests of the trust to settle on those terms rather than pursuing the litigation further and two is whether the settlement is in the best interests of the trust notwithstanding (relevantly here) the issues raised in the litigation: Hodges v Waters at [69].

In particular, in giving judicial advice, the enquiry at hand is not into whether a breach of trust has occurred or would occur. The enquiry is instead into whether it would be reasonable to take a suggested step of settlement. The point made is a narrower one, namely, the Court would not give judicial advice knowing that the suggested step was a breach of trust. This is not to say that in deciding whether to grant judicial advice the Court is positively enquiring into whether there will be a breach. That is not the point of the procedure: Hodges v Waters at [78].

There are times in litigation in which difficult or hotly contested questions are never resolved even if the matter is unsettled and goes through to a contested hearing. A case might, for example, have various factual issues (A, B and C) that are contested but issues B and C are not determined at the hearing because a finding on factual issue A determines the matter.

Thus, disputed factual questions B and C remain never directly determined but there is a practical finality arising from the Court’s judgment, including principles of res judicata, which ends dispute about them.

It would be surprising and arguably detrimental to the interests of a trust if the Court were precluded from advising that trust funds could be used to settle the dispute, merely because an issue is raised regarding the trustee’s conduct. There is no requirement in providing judicial advice that questions regarding a trustee’s conduct must necessarily be litigated.

That there is a power to give advice under s 63 without making findings regarding allegations should not be surprising.

There are powers of the Court under s 63 and also under r 54.3 UCPR where the Court in other circumstances involving trusts may permit, for example, distribution of property where there are factual uncertainties or remote contingencies which impact the administration of an estate. In those circumstances, the Court permits a distribution without determining the legal or equitable rights of the potentially affected parties. Rather, it acts in the convenient administration of trusts in which the Court having addressed or assessed the competing interests makes a determination as to what is best in relation to the trust estate and, in cases where there are beneficial interests involved (different to cases involving charitable trusts), the Court may favour an early distribution of property so that those apparently entitled can enjoy the benefits of such trust rather than have the estate or trust tied up for lengthy periods: Application of Doolan at [196] citing Macrae v Walsh (1927) 27 SR (NSW) 290 at 294-295 per Long Innes J; Wilcox v Poole [1974] 2 NSWLR 693 at 697 per Mahoney J (as his Honour then was) citing Sydney Williams and Frank Guthrie-Smith, Daniell’s Chancery Practice (8th ed, 1914, Stevens & Sons Ltd) 1539-1540; Bullas v Public Trustee [1981] 1 NSWLR 641 at 643 per Kearney J; Gonzales v Claridades (2003) 58 NSWLR 188; [2003] NSWSC 508 at [75]-[76] per Campbell J (as his Honour then was), unaffected by the appeal which was dismissed in Gonzales v Claridades (2003) 58 NSWLR 211; [2003] NSWCA 227; Simpson v Trust Company Fiduciary Services Limited [2009] NSWSC 912 at [27]-[32] per Ward J (as her Honour then was).

After referring to the various orders, senior counsel noted that the costs the subject of the proposed settlement were incurred during the period between 1 February 2006 and 12 December 2014, and it seemed that such costs had the benefit of the orders arising from the 2006 judicial advice of Palmer J, the 2007 Court of Appeal proceedings and the 2008 High Court proceedings. He further noted that such costs would include the conduct of the substantive proceedings before Young CJ in Eq (as his Honour then was) and Brereton J (as his Honour then was).

Senior counsel, however, observed that it is not possible to know whether the Palmer J judicial advice is of assistance as it was subject to the proviso of the Association being satisfied that the costs permitted were sufficient to meet the costs to finality. Senior counsel observed that it would seem that if the Palmer J advice does apply then such costs were recovered by the defendants’ sale of the Arncliffe property and the recovery of costs from it.

He stated that, nevertheless, it is apparent that there was an acceptance by Palmer J in the circumstances that the Association was properly acting as trustee in defending the proceedings insofar as they related to determining the terms of the trust and that those terms were determined in the proceedings before Young CJ in Eq.

There was further doubt raised by senior counsel in the sense that it was not possible to know if the costs that had been previously permitted to be paid from trust assets (or, specifically, what in the litigation has been described as “Schedule A property”) have not already been paid, including from sale proceeds of the Arncliffe property.

The issues before Brereton J included determining the scope of the charitable trust, specifically, what further property was the subject of the trust. His Honour found that all assets of the Association were trust assets save for any funds received as part of a litigation fund.

Apart from the effect of the costs orders senior counsel addressed, there existed further factors regarding the availability of an indemnity from trust assets to meet the Association’s defence costs of the main proceedings. He set these out in [121] of his Opinion as follows:

In this case, in light of the principles that I have outlined above, I am of the view that the Court can act and can give advice which has the effect of ending disputation without findings being made over the contested issues regarding the right to indemnity.

Mr Walker submits that several factors need to be borne in mind insofar as the Association seeks orders justifying it having resort to trust assets to settle on the terms of the deed and meet its costs of the proceedings.

The factors include the following:

Mr Walker refers to the opinion expressed by senior counsel regarding considerations of settlement of the matter.

It is appropriate to set out the relevant part of senior counsel’s Opinion:

As Mr Walker observes, senior counsel expressed the opinion that the Association would be justified in settling the proceedings on terms of the settlement proposal and in having resort to trust assets in meeting its costs of the proceedings.

Mr Walker submits that the Court should give the advice under s 63 for various reasons. These included the following:

Mr Walker, in particular, notes that the issues in the proceedings are complex and provide a risk to the Association having regard to the defences the solicitors have said that they will propound and the fact that they have the benefit of costs already certified in their favour.

Mr Walker submits, and I am satisfied, that significant costs in running the proceedings to a hearing will be avoided, that the events and prior orders made in the course of the main proceedings do not prevent these orders currently sought by the Association being made and that the compromise on legal costs will give rise to a benefit to the trust in a sense that under the terms of the deed the amount required to be paid is over $500,000 less than the solicitors’ claim they are entitled to payment of.

In his Opinion, senior counsel, just prior to his concluding remarks, suggested that the application for advice should be supported by direct evidence from Bishop Petar or his replacement that no opposition was made to the application. For my part, I am not persuaded that that is necessary.

My sense of the advice is that senior counsel was concerned that Brereton J’s orders were made in the context of a substantial challenge in the main proceedings to the use of trust assets to fund litigation costs and that he may have been concerned regarding the effect of the injunction which has never formally been, at least in express terms, dissolved or set aside.

As I have noted above, in my opinion, a further order was made by the orders dismissing the proceedings.

Lastly, Mr Walker submits that it would be relieving to the parties, the public, the parishioners of the Macedonian Orthodox Church St Petka and the Court that it might be hoped for or expected that the settlement of the proceedings will finally bring to an end the decades of litigation in, and in relation to, the main proceedings.

Time will tell whether that hope is realised.

The Court orders that: