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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mir v Mir

Details

AGLC: Mir v Mir [2023] NSWSC 408
Case: [2023] NSWSC 408
Decision Date: 21 April 2023

CaseChat Overview and Summary

In the matter of Mir v Mir, the parties were a brother and sister, who had been involved in various business dealings over many years. The court was tasked with determining whether an overarching partnership existed between the siblings and, if so, the implications of this on their shared business arrangements. The dispute centred around the existence of an overarching partnership above various corporate and trust entities used to carry on their business, and whether the terms of these entities were consistent with such a partnership.

The legal issues before the court involved whether an overarching partnership could exist in the context of the various entities used by the siblings. The court was also required to decide if the group of companies should be wound up under the Corporations Act 2001, and whether the trusts should be dissolved or have receivers appointed. Additionally, the court examined the existence of 'sub-partnerships' and the implications of a partner's death on these entities.

The court concluded that an overarching partnership existed between the siblings, despite the complexity of their business arrangements. The court held that the terms of the trusts were inconsistent with an overarching partnership, and therefore, the partnership could not have an interest in the sub-partnerships. The court found that the group of companies should not be wound up, as they were not in deadlock and the fundamental change in their operations did not warrant such action. Furthermore, the court decided that there was no need for receivers to be appointed to the assets of the trusts, as there was no evidence that they were in jeopardy. Finally, the court determined that the trusts should not be dissolved, as bringing forward the vesting date was not in the interest of the beneficiaries.

The court's final orders were that the overarching partnership between the siblings was recognised, but the terms of the trusts were inconsistent with this partnership. The group of companies would not be wound up, and receivers would not be appointed to the trust assets. The trusts would not be dissolved, and the sub-partnerships would remain in place.

Orders