Mir v Mir [2023] NSWSC 408

Supreme Court New South Wales

Medium Neutral Citation: Mir v Mir [2023] NSWSC 408 Hearing dates: 6 to 9, 13 to 16, 20 to 22, 27 to 28 February and 1 to 2 March 2023 Decision date: 21 April 2023 Jurisdiction: Equity - Commercial List Before: Ball J Decision: (1) Direct that the parties bring in short minutes of order that give effect to these reasons for judgment, that deal with the question of costs if costs can be agreed and that set out directions to be given by the Court in relation to the resolution of any outstanding questions to be determined in these proceedings; (2) If the parties cannot agree on the form of the orders and directions referred to in (1), direct that by 22 May 2023 each separately represented party serve on the others and provide to my Associate a form of orders and directions that they seek and a short outline of written submissions in support of those orders and directions; (3) Stand the matter over for directions at 9.15 am on 29 May 2023 or such other date as agreed with my Associate. Catchwords: PARTNERSHIPS AND JOINT VENTURES — Existence of partnership — Where alleged partners conducted business using various corporate and trust entities and 'sub-partnerships'— Whether 'overarching' partnership can exist 'above' various entities used to carry on business — Where putative partners agreed to share total profits from the companies, trusts and partnerships equally — Where assets held on trust — Where terms of trust inconsistent with overarching partnership — Where overarching partnership cannot have interest in alleged sub-partnerships CORPORATIONS — Winding up — Whether group of companies should be wound up on the just and equitable ground under s 461(1)(k) of the Corporations Act 2001 (Cth)— Whether companies are in deadlock — Where breakdown in the relationship has led to a fundamental change in the way in which the group operates — Where some companies simply hold investment properties on trust EQUITY — Trusts and trustees — Express trusts — Termination — Whether receivers should be appointed to the assets of trusts — Where no evidence that trust assets are in jeopardy EQUITY — Trusts and trustees — Express trusts — Termination — Whether trusts should be dissolved on the basis that the purpose of the trusts is at an end — Where bringing forward vesting date not in interest of beneficiaries PARTNERSHIPS AND JOINT VENTURES — Existence of partnership — Whether 'sub-partnerships' exist — Where no partnership agreement — Where there is co-ownership of investment properties, equal sharing of profits and lodging of partnership tax returns — Where 'sub-partnerships' acquired properties as part of a business PARTNERSHIPS AND JOINT VENTURES — Dissolution — Whether 'sub-partnerships' may be dissolved — Where death of a partner — Where notice of dissolution issued EQUITY — Trusts and trustees — Express trusts — Declaration of trust terms — Where declaration of terms sought inconsistent with terms of trust deed Legislation Cited: Bankruptcy Act 1966 (Cth) Corporations Act 2001 (Cth) Partnership Act 1892 (NSW) Supreme Court Act 1970 (NSW) Uniform Civil Procedure Rules 2001 (NSW) Cases Cited: Baba v Sheehan [2019] NSWSC 1281 Barkeley v Reay (1842) 2 Hare 308; 67 ER 127 Basecove Pty Ltd v Dolores Lavin Management Pty Ltd [2009] NSWSC 1315 Ebrahimi v Westbourne Galleries Ltd [1973] AC 360 In the matter of Amazon Pest Control Pty Limited [2012] NSWSC 1568 In the matter of Austral Alloys Pty Ltd [2017] NSWSC 1833 In the matter of Catombal Investments Pty Ltd [2012] NSWSC 775 Johnny Oceans Restaurant Pty Ltd v Page [2003] NSWSC 952 Middleton v Dodswell (1806) 13 Ves 266; 33 ER 294 Morgan v 45 Flers Avenue Pty Ltd (1986) 10 ACLR 692 Palermo v Palermo [2015] WASCA 49 Re Austec Wagga Wagga Pty Limited (in liquidation) [2018] NSWSC 1476 Re Equititrust Ltd [2011] QSC 353; (2011) 288 ALR 800 Re Gayton [2001] NSWSC 473 Warner Capital Pty Ltd v Shazbot Pty Ltd [2020] NSWCA 121 Yunghanns v Candoora No 19 Pty Ltd (No 2) [2000] VSC 300; (2000) 35 ACSR 34 Zheng v Deng [2020] NZCA 614 Texts Cited: JD Heydon and MJ Leeming, Jacobs' Law of Trusts in Australia (8th ed, 2016, LexisNexis Butterworths) P Walton, Kerr & Hunter on Receivers and Administrators (21st ed, 2020, Sweet & Maxwell) R I Banks, Lindley & Banks on Partnership (19th ed, 2010, Sweet & Maxwell) Category: Principal judgment Parties: John Mir (First Plaintiff | First Cross Defendant on Cross-Claim) John Mir Holdings Pty Ltd (Second Plaintiff) Samuel Mir (Third Plaintiff) Acclaim (Australia) Pty Ltd (Fourth Plaintiff | Thirty Sixth Defendant) Marie Mir (Fifth Plaintiff | Second Cross Defendant on Cross-Claim) Leo Mir as executor of the Estate of the late George Mir (First Defendant | Cross Claimant) Anthony Mir (Second Defendant) Mir Bros Unit Constructions Pty Ltd (Third Defendant) Mir Bros Community Planning Pty Ltd (Fourth Defendant) Mir Bros West Side Investments Pty Ltd (Fifth Defendant) Mir Bros Residential Development Pty Ltd (Sixth Defendant) Mir Bros Rural and Urban Industries Pty Ltd (Seventh Defendant) GM Amalgamated Investments (Dulwich Hill) Pty Ltd (Eighth Defendant) JM Associated Investments (Dulwich Hill) Pty Ltd (Ninth Defendant) Demalle Corporation Pty Ltd (Tenth Defendant) Mir Bros Enterprises Pty Ltd (Eleventh Defendant) Mir Bros Constructions Pty Ltd (Twelfth Defendant) Southern Highlands Pastoral Pty Ltd (Thirteenth Defendant) Sheraton Homes Pty Ltd (Fourteenth Defendant) Mir Brothers Developments Pty Ltd (Fifteenth Defendant) Mir Bros Trading Co Pty Ltd (Sixteenth Defendant | Seventh Cross Defendant on Cross-Claim) Samuel Mir Pty Ltd (Seventeenth Defendant) Mirco Finance Pty Ltd (Eighteenth Defendant | Sixth Cross Defendant on Cross-Claim) Mir Bros (Hollywood Creations) Pty Ltd (Nineteenth Defendant | Eighth Cross Defendant on Cross-Claim) Mir Bros Holdings Pty Ltd (Twentieth Defendant) Mir Bros Properties Pty Ltd (Twenty First Defendant) Mir Bros Real Estate Pty Ltd (Twenty Second Defendant) Mir Bros Industries Pty Ltd (Twenty Third Defendant | Fifth Cross Defendant on Cross-Claim) Regot Pty Ltd (Twenty Fourth Defendant) Mir Bros High Rise Apartments Pty Ltd (Twenty Fifth Defendant | Fourth Cross Defendant on Cross-Claim) Mir Group Holding Company Pty Ltd (Twenty Sixth Defendant) Mircorp (Australia) Pty Ltd (Twenty Seventh Defendant) Mir Group of Companies Pty Ltd (Twenty Eighth Defendant) Mir Group Pty Ltd (Twenty Ninth Defendant) Glenmore Rural Pty Ltd (Thirtieth Defendant) Jedda Farm Pty Ltd (Thirty First Defendant) Leafs Gully Farm Pty Ltd (Thirty Second Defendant) Pommier Enterprises Pty Ltd (Thirty Third Defendant) Mir Bros Investments Pty Ltd (Thirty Fourth Defendant) Mirage Real Estate Pty Ltd (Thirty Fifth Defendant) George Mir Holdings Pty Ltd (Thirty Seventh Defendant) Anthony Mir Holdings Pty Ltd (Thirty Eighth Defendant) Anthony Charles Mir (Thirty Ninth Defendant | Third Cross Defendant on Cross-Claim) Sidney Mir (Fortieth Defendant) Stephen Mir (Forty First Defendant) David Mir (Forty Second Defendant) Mary Mir (Forty Third Defendant) Leo Mir (Forty Fourth Defendant) Representation: Counsel: A Leopold SC with J Hutton SC and J Pokoney (Plaintiffs | First and Second Cross Defendants) MR Elliott SC with AR Langshaw (First, Thirty Seventh and Forty Fourth Defendants | Cross-Claimant) CN Bova SC with B Michael (Second to Thirty Sixth and Thirty Eighth Defendants | Third to Eighth Cross Defendants)