Equitable Interests:

When property is owned, the form of ownership may be subject to a legal hierarchy. For example, it may be the case that certain persons have indefeasible title pursuant to registration in conformity with section 42 of the Real Property Act 1900. Any other interest in land then becomes what is referred to an equitable interest which is formed by virtue of competing against the legal interest, but not being registered. The subsequent interests may then be categorised as being ‘equitable interests’, ‘mere equities’ or ‘personal equities’. Equitable interests are then further divided depending on whether they are jures in personam or jures in rem and are then further prioritised based on the time in which the interest was created.

It may be the case that you would need to seek an application to the Supreme Court, who exercises a jurisdiction in Equity, to seek to have your right declared or enforced. A declaration of a right may not necessarily transfer the right to a legal right, whereas the seeking of an enforcement may have the effect of enforcing the equitable right as a legal interest.  A finding of an equitable interest will generally not lead to the right to an award of damages. Instead, various equitable remedies are available including the following:

• Specific performance of a contract or other instrument;
• Account of profits- seeking a return of ill-gotten gains;
• Injunction- which is a Court Order prohibiting or requiring certain action.

Equity further controls the finding of interest where the interest manifests unconscionably or where it arises as a result of a trust. Regarding unconscionability, equity will not permit the unconscionable enforcement of a legal right. The issue of unconscionability can arise in contract law and can be used as an argument to set aside contracts, gifts or wills where it would be unconscionable to enforce the legal rights which they confer.  As a result of a finding in unconscionability a Constructive Trust may form to prevent the registered owner of the property from profiting from behaviour which is unconscionable. In the alternate, a Resulting Trust may arise when title to the property is held by someone other than the person who paid for it, or in proportions different to those for which it was acquired. The legal owner is said to hold the property on trust for another.

Through the complexity of Equity, Navado’s solicitors may also consider in their advice any potential role of equitable or common law fraud, potential criminal conduct, trusts and tax issues. At Navado, our team of Lawyers have the experience to consider a number of relevant areas of law in advising the best cause of action in relation to your complex dispute. It may be that your complex matter is not best pursued through a single area of law, and at Navado we turn our minds and experience to examining the number of areas which may be applicable and offer you a comprehensive and thorough advice. Our staff come from a wide variety of backgrounds including qualified accountants and are able to approach your matter with a mind to the circumstances of your case. Additionally Navado has considerable access to a wide variety of expert counsel who may be able to assist you in the most focused and effective way regarding your complex matter. The combination of our in-house expertise, resources and counsel allows Navado to cover the field of law and advise you in relation to your complex matter, with a mind to advising you of causes of actions.

If you are in dispute about your equitable interests, we recommend that you contact our firm on (02) 9233 4048 or send an email to info@navado.com.au and arrange an appointment to see one of our Complex Disputes & Litigation Solicitors. 

This webpage (and any material or wording appearing on this webpage) is provided for general information purposes only and does not constitute any Legal Advice. It does not take into account your objectives, your instructions or all of the relevant facts and/or circumstances. Navado accepts no responsibility to any person who relies on the information provided on this website. We further refer you to our Disclaimer.