Mir v Mir

Case [2025] NSWCA 154

Court of Appeal


Supreme Court


New South Wales

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Medium Neutral Citation: Mir v Mir [2025] NSWCA 154
Hearing dates: 6 March 2025
Date of orders: 16 July 2025
Decision date: 16 July 2025
Before: Ward P at [1]; Leeming JA at [152]; Payne JA at [158]
Decision:

In the John Appeal:

1.   Appeal dismissed with costs.

In the Leo Appeal:

1.   Grant leave to appeal.

2.   Appeal dismissed with costs.

Catchwords:

PARTNERSHIPS AND JOINT VENTURES – existence of partnership – whether primary judge erred in failing to find that there was an unwritten “overarching” partnership sitting above corporate and trust structure under which many of the properties within the Mir Group business were held – whether open to appellant to contend on appeal that the unwritten overarching agreement between the three Mir brothers (as declared by the primary judge after further hearings, having rejected the pleaded partnership claim) itself gave rise to a partnership between the three brothers

EQUITY – trusts and trustees – appointment and removal of trustees – whether House v The King error established on the part of the primary judge in declining to remove trustees notwithstanding misconduct by trustees in denying that certain property held on trust and where serious findings made against one of the trustees in relation to his conduct

Legislation Cited:

Corporations Act 2001 (Cth), s 461(1)(k)

Partnership Act 1892 (NSW), ss 1, 2(1), 5, 9, 32(c), 38

Supreme Court Act 1970 (NSW), s 67

Trustee Act 1925 (NSW), ss 70, 71

Cases Cited:

Fordyce v Ryan; Fordyce v Quinn [2016] QSC 307

Gilmore Finance Pty Ltd v Aesthete Pty Ltd [2022] NSWCA 279

Guazzini v Pateson (1918) 18 SR (NSW) 275

House v The King (1936) 55 CLR 499; [1936] HCA 40

Industrial Equity Ltd v Lyons (Supreme Court (NSW), Cohen J, 15 October 1991, unrep)

In the matter of Reserve Hotels Pty Ltd [2021] NSWSC 376

Kanjian Holdings No 1 Pty Ltd v Kanjian (No 3) (2021) 155 ACSR 230; [2021] NSWSC 839

Kennon v Spry; Spry v Kennon (2008) 238 CLR 366; [2008] HCA 56

Letterstedt v Broers (1884) 9 App Cas 371; [1881-5] All ER Rep 882

Miller v Cameron (1936) 54 CLR 572; [1936] HCA 13

Mir v Mir [2023] NSWSC 408

Mir v Mir (No 2) [2024] NSWSC 791

Mir v Mir (No 3) [2024] NSWSC 899

Mitchell v Simons (1862) 1 SCR (NSW) Eq 70

Morgan v 45 Flers Avenue Pty Ltd (1986) 10 ACLR 692

Owies v JJE Nominees Pty Ltd [2022] VSCA 142

Palermo v Palermo (No 2) [2014] WASC 6

Palermo v Palermo [2015] WASCA 49

Porteous v Rinehart (1998) 19 WAR 495

Quinton v Proctor [1998] 4 VR 469

Suttor v Gundowda (1950) 81 CLR 418; [1950] HCA 35

Titterton v Oates (1998) 143 FLR 467

United Dominions Corporation Ltd v Brian Pty Lt and others (1985) 157 CLR 1; [1985] HCA 49

Warner Capital Pty Ltd v Shazbot…

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Details
AGLC
Mir v Mir [2025] NSWCA 154
Case
[2025] NSWCA 154
Decision Date

CaseChat Overview and Summary

The appeal concerned a dispute between three brothers, the parties to the proceedings, regarding the existence and nature of a partnership within their business group, the Mir Group. The primary judge had initially rejected the appellant's claim for an unwritten overarching partnership but subsequently declared that an unwritten agreement between the brothers gave rise to a partnership. The appeal also involved issues concerning the appointment and removal of trustees, specifically whether the primary judge erred in declining to remove trustees despite their misconduct in denying trust property and serious findings made against one trustee.

The Court of Appeal was required to determine whether the primary judge erred in failing to find an unwritten overarching partnership that sat above the corporate and trust structures holding the Mir Group's properties. Further, the court had to consider whether it was open to the appellant to contend on appeal that the unwritten agreement, as declared by the primary judge, itself constituted a partnership between the three brothers. Additionally, the court was asked to assess whether the primary judge made a *House v The King* error in refusing to remove trustees, notwithstanding their misconduct.

The Court of Appeal dismissed the appeal in relation to the partnership claim, finding no error in the primary judge's determination that the unwritten agreement between the brothers gave rise to a partnership. The court also dismissed the appeal concerning the removal of trustees, concluding that the primary judge did not err in declining to remove them despite the identified misconduct. The reasoning focused on the application of partnership law and the principles governing the removal of trustees, upholding the primary judge's findings on both fronts.

Consequently, the appeal brought by John was dismissed with costs. Leave to appeal was granted in the appeal brought by Leo, which was also dismissed with costs.

Orders

Orders of the court

In the John Appeal:

1. Appeal dismissed with costs.

In the Leo Appeal:

1. Grant leave to appeal.

2. Appeal dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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