Mr Stamos J Fafalios v Mr Costas Apodiacos
| Jurisdiction | England & Wales |
| Judge | Mr Robin Vos |
| Judgment Date | 13 May 2020 |
| Neutral Citation | [2020] EWHC 1189 (Ch) |
| Court | Chancery Division |
| Docket Number | Claim No: PT-2019-000482 |
| Date | 13 May 2020 |
[2020] EWHC 1189 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND & WALES
PROPERTY TRUSTS AND PROBATE LIST (CHD)
7 Rolls Buildings
Fetter Lane
London EC4A 1NL
Mr Robin Vos
(SITTING AS A DEPUTY JUDGE OF THE CHANCERY DIVISION)
Claim No: PT-2019-000482
Matthew Smith (instructed by Withers LLP) appeared for the Claimants
Joshua Winfield (instructed by TLT LLP) appeared for the first-sixth Defendants
The seventh Defendant did not appear and was not represented
Hearing date: 28–29 April 2020
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Background
At the heart of this claim is a dispute as to who controls the substantial funds held by the first-sixth defendants in their capacity as trustees of the Greek Cathedral Cemetery Enclosures Trust, a charitable trust made in 1860 (I shall refer to this trust as the Cemetery Trust and the trustees as the Cemetery Trustees).
The claimants are the trustees of another charitable trust, The Greek Cathedral Trust established in 1888 (which I shall refer to as the Cathedral Trust and the trustees as the Cathedral Trustees).
Both of these charities are linked to the Greek Orthodox Cathedral of the Divine Wisdom in London (also known as Aghia Sophia or St Sophia).
The Cathedral Trustees ask for a declaration that any surplus funds of the Cemetery Trust are held by the Cemetery Trustees on trust for such charitable purposes as the assembly of the Cathedral may, by a two-thirds majority, resolve. In the alternative, they ask the court to make a cy-près scheme directing that any surplus funds are held on such terms.
The Cemetery Trustees say that the assembly has no right to tell them how the surplus funds of the Cemetery Trust should be dealt with. They accept that, on their case, a cy-près scheme is needed but only to clarify who is entitled to be buried in the cemeteries which they control and not, as the Cathedral Trustees suggest, to determine how any surplus funds which they hold should be used.
The Cemetery Trust
The purpose of the Cemetery Trust is to make provision for the burial of what is described in the trust deed as “Members of the Greek Community in London”.
On 5 December 1860 a group of individuals were granted burial and associated rights in perpetuity in relation to part of what was then known as the South Metropolitan Cemetery (now known as West Norwood Cemetery). By a declaration of trust dated 31 December 1860 (“ the 1860 Declaration of Trust”), those individuals declared that they held all of the rights which had been granted to them:
“ IN TRUST only for the purposes of interment of Members of the “Greek Community in London” And that the same ground and privileges shall be henceforth held and enjoyed by them the said Trustees or other the Trustees for the time being of the said recited Indenture of the fifth day of December one thousand eight hundred and sixty (subject to the provisions terms and conditions as mentioned set forth or referred to in the said recited Indenture) UPON and for the purposes of interment but subject to such rules and regulations as the said Greek Community of London shall from time to time by order under their Seal direct.”
The only other provision contained in the 1860 Declaration of Trust related to the appointment of new trustees by the existing trustees.
Surplus funds from the sale of burial rights were used to acquire further burial rights in 1872, 1889 and 1901 in relation to additional plots of land at the South Metropolitan Cemetery. On each occasion, these rights were granted to different groups of individuals although some of the individuals in each group overlapped.
It appears that the rights acquired in 1872 were held in trust but it is not clear whether this was on the terms of the 1860 Declaration of Trust. There is no evidence that there was any declaration of trust at the time the 1889 or 1901 rights were granted either to the effect that the rights were held on the terms of the 1860 Declaration of Trust or on any other terms.
However, in 1927 a new group of trustees were appointed as trustees of the rights which had been acquired on each of the four separate occasions. As far as the rights acquired in 1860 and 1872 are concerned, it appears that there were no surviving trustees as the appointment was made by the executor of the last surviving trustee. The deed of appointment of new trustees relating to the acquisition in 1872 recited that the rights were held in trust but did not set out the terms of the trust.
The deeds appointing the new trustees of the rights which were acquired in 1889 and 1901 were made by the three surviving trustees who held those rights. These deeds of appointment specifically stated that the rights were held on trust for the interment of Members of the Greek Community in London. It appears that, at least since then (if not before), the rights acquired on each of the four occasions have been treated as being held on the terms of the 1860 Declaration of Trust.
On 13 December 1935, the trustees who had been appointed in 1927 executed a declaration (“ the 1935 Declaration”) which is central to the current dispute. The declaration recited the terms of the 1860 Declaration of Trust, the four acquisitions of burial rights in 1860, 1872, 1889 and 1901 (referred to as the First Grant, the Second Grant, the Third Grant and the Fourth Grant respectively) and the changes of trustees which took place in 1927. The declaration also contained the following recitals:
“2 The [1860 Declaration of Trust] contained no provisions with regard to any profits that might be made by the Original Trustees or the Trustees from time to time thereof but certain monies from time to time came into their hands by the sale of graves and vaults in the Cemetery and further purchases of similar rights of burial and interment and other privileges in the Cemetery belonging to the said South Metropolitan Cemetery Company were made from time to time by such Trustees.
…
3. Various Resolutions have from time to time been passed by the said Greek Community with regard to such monies arising from the sales of graves and vaults the last being passed on the 13 th June 1926 in accordance with which investments representing the funds of the Cemetery were transferred to the Trustees of the Funds of the Greek Church such Trustees placing the equivalent value of such investments to a special account at interest in the names of the Cemetery Trustees and the Cemetery Trustees hand over from time to time the balance of the proceeds of sale of the graves and interest less outgoings and such sums so handed over are placed to the credit of the said special account.”
The operative part of the 1935 Declaration is as follows:
“NOW therefore the present Trustees hereby declare that all monies which now are or which from time to time may come to their hands from whatsoever source as Trustees of the said First, Second, Third and Fourth Grants and the said declaration of trust dated 31 st December 1860 shall be held by them Upon trust to apply them in accordance with any Resolution that may be passed at a General Meeting of the Greek Community in London convened for the purpose by a clear majority of two thirds of the members present at such meeting and voting on such resolution.”
The final page of the 1935 Declaration bears the words:
“re: the community or brotherhood of the Orthodox Greek Church” “declaration of trust in respect of the Cemetery Trust”
On 18 December 2002, the Charity Commission made an order under Section 26 Charities Act 1993 authorising the amendment of the administrative provisions of the 1860 Declaration of Trust by the trustees of the Cemetery Trust. This power was exercised on 26 June 2003 by amending the circumstances in which new trustees could be appointed.
The Land and Vicarage Trust
Although it is not directly relevant to the questions before the court, in order to understand the historical background, it is worth mentioning the existence of a third trust known as the Land and Vicarage Trust which was created in 1879. The Land and Vicarage Trust owns the Cathedral and clergy accommodation. The declaration of trust recites that the land was acquired and the buildings were erected with money provided by “a Society or Community of persons known as the Greek Community in London” and provides that the land and buildings are held:
“IN TRUST for the Greek Community in London and to be disposed of as such Greek Community by its authorised officers shall from time to time direct.”
The Cathedral Trust
The Cathedral Trust was created in 1888. The recitals to the trust deed contain the following:
“Whereas at a meeting of the Greek Community resident in London held in accordance with the regulations in force for the time being of the Greek Orthodox Church in London on 23 rd day of December 1882 a resolution was passed authorising the chairman of the said meeting to invest certain monies derived from the sale of the old church belonging to the Community… and whereas at a meeting of the said Community held in accordance with the said regulations on the 15 th day of December 1883 a resolution was passed that the account of the monies derived from the sale aforesaid and from the account of the Cemetery should thenceforth be...
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Adrian Hyde
...Trustco (UK) Limited v Page [2019] EWHC 1187 [at 68–70]; Millar v Millar [2018] EWHC 1926 (CH) [at 17–23]; Fafalios v Apodiacos [2020] EWHC 1189 (Ch) [at 31–33]; and First National Trustco (UK) Limited v McQuitty [2020] EWCA Civ 107 [at 27 One point I should note at this stage is that ea......