Australia, Aug. 16 -- New South Wales Land and Environment Court issued text of the following judgement on July 16:

1. WARD P: Before the Court for hearing on 6 March 2025 were related proceedings arising out of a dispute between members of the Mir family and related interests. The main protagonists are John Mir, his brother Anthony Mir (referred to as Tony) and their nephew, Leo Mir (the eldest son of their late brother, George Mir, and executor of his estate). Various other entities and family members are also parties to one or more of the proceedings. In these reasons, I will refer to the family members by their first names and the associated groups of parties simply by reference to the relevant brother or, in Leo's case, nephew with whom the parties are associated.

2. At the conclusion of the hearing, without opposition from the parties, the Court made directions for a mediation of the dispute to take place, having regard to potential tax issues that had been raised during the course of the hearing as to the consequences that might arise from the positions for which one or other of the opposing parties contended (see AT 74.42-49). After acceding to requests for an extension of time for the mediation, the Court was ultimately advised that the mediation was unsuccessful. These, therefore, are the reasons for determination of the respective appeal proceedings.

Proceedings at first instance

3. Briefly by way of introduction, in 2019, John (and entities associated with him, as well as his wife, Marie, and their eldest son, Samuel) commenced proceedings in the Equity Division seeking orders in effect for the winding up of the property investment and development business which had traded for many years under the name "the Mir Group of Companies" (Mir Group) and for the division of assets of the business equally between the three brothers (John, George and Tony), their holding companies or their immediate families. The Mir Group business had been conducted since the late 1950s and by 2019 held (through various corporate entities, discretionary trusts and unit trusts) a substantial real estate portfolio. By the time of the hearing at first instance, George had died and his estate was represented by Leo.

4. In those proceedings, John contended that the Mir Group business was carried on by a partnership between the three brothers. John's primary case was that this partnership was formed partly by express oral agreement and partly by agreement to be inferred by conduct but, further or in the alternative, he contended that the agreement was wholly to be inferred from conduct (see the particulars to [19] of the Second Further Amended Commercial List Summons). John contended that this partnership had been validly dissolved (either by notice given by John pursuant to s 32(c) of the Partnership Act 1892 (NSW) (Partnership Act) on 2 April 2020 or as a consequence of George's death in December 2020) and that a receiver should be appointed to wind up the partnership and distribute the partnership assets.

5. In the alternative, John claimed that: the corporations through which the business was carried on should be wound up under s 461(1)(k) of the Corporations Act 2001 (Cth) (Corporations Act) (the just and equitable winding up ground); a receiver should be appointed to the assets of each of the trusts under s 67 of the Supreme Court Act 1970 (NSW); and receivers should be appointed to a number of partnerships (referred to as sub-partnerships) through which part of the business was carried on and which John claimed had also been dissolved by notices given under s 32(c) of the Partnership Act.

6. In those proceedings, George commenced (and Leo, in his capacity as executor of George's estate, subsequently continued) a cross-claim against John and Marie, seeking a declaration as to the beneficial ownership of certain land at Blairmount (to which I will refer as the J&M Trust Land although sometimes in submissions and by the primary judge this was referred to as the Blairmount Land). Leo and Tony contended that the J&M Trust Land, which was held by John and Marie on trust for the "J&M Trust" (a discretionary trust settled by deed dated 27 August 1979), formed part of the Mir Group assets and was in fact held on trust for the families of George, John and Tony equally. The J&M Trust Land was a portion of a larger parcel of land that it was accepted by all parties was held by John and Marie personally and on which they had built their family home. In the alternative, Leo and Tony contended that, if John's partnership claim succeeded, then the J&M Trust Land was partnership property. John and Marie contended to the contrary that the J&M Trust Land was their personal property (outside of the Mir Group).

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/19808656096e503669bfbf90)

Disclaimer: Curated by HT Syndication.