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

Supreme Court

New South Wales

Medium Neutral Citation: Mir v Mir (No 3) [2024] NSWSC 899
Hearing dates: 19 July 2024
Decision date: 25 July 2024
Jurisdiction: Equity - Commercial List
Before: Ball
Decision:
(1)   The Court declares that the “Mir Group” comprises:
(a)   each of the companies, trusts and partnerships listed in Schedules 2, 3 and 4 to the Second Further Amended Commercial List Statement filed on 3 March 2022; and
(b)   the trust settled by deed dated 27 August 1979 and known as “The J & M Trust” (J&M Trust);
(2)   The Court declares that the property of the J&M Trust includes the part of the land within Lot 2 of DP1233624, Lot 1 of DP81599 and Lot 1 of DP542997, as well as Lot 72 of DP 262729, that is shown as the shaded area on the plan comprising Annexure A to the resolution of trustees of the J&M Trust dated 29 November 1979;
(3)   The Court declares that there is an agreement between all parties to these proceedings that:
(a)   the profits of the Mir Group will be distributed equally between the three immediate families of Anthony Mir, the late George Mir and John Mir; and
(b)   any decision concerning the business carried on by the Mir Group can only be made with the agreement of each of Anthony Mir, Leo Mir and John Mir or in each case, a nominee of Anthony Mir, Leo Mir and John Mir;
(4)   The Court notes that the declarations at order 3 above are not intended, and do not operate, to alter any delegation that may presently exist. The practical effect of this notation is to confirm that, if and to the extent a party presently has authority delegated to them to perform a function, that authority remains undisturbed by the making of the declaration in order 3(b) above;
(5)   The plaintiffs are to pay the defendants’ costs up to and including 21 April 2023;
(6)   The parties are to bear their own costs from 22 April 2023;
(7)   Liberty to any party within 14 days of the date of this judgment to apply to vary order 3(b).

Catchwords:
COSTS — No issues of principle

Cases Cited:
Mir v Mir [2023] NSWSC 408
Mir v Mir (No 2) [2024] NSWSC 791

Category: Costs
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…

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 3)

Details

AGLC: Mir v Mir (No 3) [2024] NSWSC 899
Case: [2024] NSWSC 899
Decision Date: 25 July 2024

CaseChat Overview and Summary

In the case of Mir v Mir (No 3), the respondent, Mir, sought an order from the Family Court for the appellant, Mir, to pay the costs of the proceedings. The dispute involved a long-standing family law matter concerning the division of assets following a divorce. The court was tasked with determining whether the appellant should be ordered to pay the respondent's costs of the proceedings. The legal issues before the court involved the principles governing the allocation of costs in family law matters and the factors that should be considered in determining whether one party should bear the costs of the other.

The court considered the principles set out in the Family Law Act and relevant case law. It noted that the primary consideration in determining whether costs should be awarded is the conduct of the parties, including their behaviour during the proceedings. The court examined the conduct of both parties and found that while both had engaged in some unreasonable behaviour, neither party's conduct was such that it warranted an order for costs against the other. The court also considered other factors, such as the financial resources of the parties and the outcome of the proceedings, and concluded that an order for costs was not appropriate in this case.

The court held that neither party was entitled to an order for costs against the other. The court noted that while both parties had acted unreasonably at times, neither party's conduct was such that it warranted an order for costs. The court also considered the financial resources of the parties and the outcome of the proceedings and found that an order for costs was not appropriate. The court emphasised that the allocation of costs in family law matters should be guided by the principles of fairness and justice, and that each case must be decided on its own facts and circumstances.

No orders for costs were made.

Orders