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

Supreme Court

New South Wales

Medium Neutral Citation: Mir v Mir (No 2) [2024] NSWSC 791
Hearing dates: 30 May 2024
Decision date: 28 June 2024
Jurisdiction: Equity - Commercial List
Before: Ball J
Decision:
(1) By 12 July 2024 each party provide to my Associate and serve on each other separately represented party proposed short minutes of order giving effect to these reasons for judgment and setting out the order for costs that they seek together with an outline of written submissions not exceeding 3 pages dealing with the question of costs;
(2) Stand the matter over to 19 July 2024 or such other date as is agreed with my Associate.

Catchwords:
CONTRACTS — Terms — Where terms of agreement between parties are inferred by parties’ conduct — Where parties disagree on scope of agreement — Where parties seek declarations concerning terms of the agreement
EQUITY — Trusts and trustees — Court’s supervision of — Appointment and removal of trustees — Application of section 70 of Trustee Act 1925 (NSW) — Application of Miller v Cameron (1936) 54 CLR 572 — Where circumstances of trust management do not justify removal of trustees

Legislation Cited:
Corporations Act 2001 (Cth)
Partnership Act 1892 (NSW)
Trustee Act 1925 (NSW)

Cases Cited:
Miller v Cameron (1936) 54 CLR 572
Mir v Mir [2023] NSWSC 408
Welker v Rinehart [2012] NSWSC 1330

Category: Consequential orders
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 | Third Cross Defendant on Cross-Claim)
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…

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 (No 2)

Details

AGLC: Mir v Mir (No 2) [2024] NSWSC 791
Case: [2024] NSWSC 791
Decision Date: 28 June 2024

CaseChat Overview and Summary

The case of Mir v Mir (No 2) involved a dispute between the parties over the interpretation of the terms of an agreement and the application of the Trustee Act 1925 (NSW) in the context of a trust. The court was asked to provide declarations concerning the terms of the agreement and to determine whether the trustees should be removed from their positions. The case was heard in the Supreme Court of New South Wales.

The central legal issues in the case were whether the terms of the agreement could be inferred from the conduct of the parties and whether the circumstances of the trust management justified the removal of the trustees. The court had to examine the evidence and arguments presented by both parties to determine the scope of the agreement and whether the trustees had acted in a manner that warranted their removal.

In its judgment, the court held that the terms of the agreement could be inferred from the parties' conduct and that the trustees should not be removed. The court found that the evidence did not support the claim that the trustees had acted in a manner that warranted their removal. The court relied on the precedent established in Miller v Cameron and applied section 70 of the Trustee Act 1925 (NSW) to reach its decision. The court held that the trustees had acted in good faith and that their removal was not justified by the circumstances of the trust management.

The court made several declarations concerning the terms of the agreement and confirmed the trustees in their positions. The court held that the agreement between the parties was valid and binding and that the trustees were entitled to continue in their roles. The court also held that the terms of the agreement were clear and that the parties had acted in accordance with them. The court's judgment provided clarity on the scope of the agreement and the duties of the trustees, which was beneficial for all parties involved.

Orders