EQUITY and TRUST DISPUTES

Equity Disputes

A person may be able to bring a claim in a court of Equity where he or she may not have rights under laws passed in parliament, or judge made law (e.g. contract law or law relating to negligence).

Examples of claims in equity include:

1.        Where the person is the victim of fraudulent conduct of another.

2.       Where one person to an agreement (either oral or written) refuses to perform their obligations under the agreement. The “innocent” party to the agreement can go to the Supreme Court for an order to force the other person to perform the agreement (this is called an “application for specific performance of an agreement”).

3.       Where one person (the superior party) takes advantage of their position over another person (the inferior party). This is known as exercising undue influence.

4.        Where one person suffers from a special disadvantage (e.g. ignorance, inexperience, illness, impaired faculties) which effects that person’s ability to look after their own interests, and the other person takes advantage of that situation.

These are but a few examples of situations where equity may assist. There are many others.

Sometimes it is necessary to restrain (prevent) someone from doing something which effects someone else’s legal rights, e.g. to restrain someone from attempting to sell land where they have already sold that land to someone else or stop a neighbour constructing an unauthorized structure. This process is known as seeking an “injunction”.

Trust Disputes

A trust can be described as existing when the holder of an interest in certain property is bound by an equitable obligation to hold his interest in that property not for his own exclusive benefit, but for the  benefit of another person or persons or for some object or purpose permitted by law. (For instance, you may have monies deposited in a bank account in someone else’s name. That person holds those monies in “trust” for you.)

Again there are many circumstances where which may give rise to a trusteeship. If there is a breach of the terms of the trust by the trustee, then the person for whom the trustee is holding the property, may be able to go to court to seek relief.

In N.S.W. matters relating to trust and equity disputes are generally determined in the Supreme Court of N.S.W., Sydney.

Whether a barrister is required, often depends upon the seriousness of the matter, or the amount of money involved. Generally speaking (and there are exceptions) a dispute involving less than say $30,000, does not warrant the retention of a barrister, as a competent solicitor should be able to to handle it. However, if you are in doubt, check with me.

SOME EQUITY & TRUST CASES IN WHICH KIM MORRISSEY HAS APPEARED

(a)  My clients enjoyed the benefit of a covenant (binding obligation attaching to the land) on the title of their property which meant their neighbours were restricted in the alterations they could make to their property. My clients were entirely successful in proceedings in the Supreme Court of NSW, to restrain the neighbours from erecting a structure which breached the covenant.

(b)  My client, who owned valuable semi rural land, reached and oral (verbal) agreement with his adjoining land owners as to who would fence, and at whose expense, parts of the common boundary between them. My client fulfilled his part of the bargain, erecting a fence at his own expense, but was forced to bring proceedings in the Supreme Court of NSW to compel the other parties to the agreement, to fulfill their contractual obligations.

(c)  My client made an oral (verbal) agreement with a person with whom she owned a residence, to buy out that other person’s interest. My client paid the agreed sum, but the other person refused to sign the transfer of title document. After tracking the other person down in U.S.A., with the assistance of U.S. attorneys, my client commenced successful proceedings in the Supreme Court of NSW to compel the other person to sign the transfer document.

(d) My client and her husband were told by her father that if they looked after him, and made improvements and maintained his home in which they all lived, then she could live there indefinitely. The father died and left the home to his wife, from whom he was separated. Proceedings were commenced on my client’s behalf in the Supreme Court of N.S.W. at Sydney and settled on a very satisfactory basis for my client.

These pages are intended to be a resource for lawyers and laypersons. Any content on these pages is not intended to be, nor is it a substitute for, legal advice. If you have a problem, and the resources here do not direct you to where you need to go, see a lawyer. It is intended that this page will contain only resources, not legal advice of any kind