Many legal transactions involve property, and disputes between parties often involve property. Therefore, property law disputes occur regularly and often involve a party’s real property, or a party’s interests in land. Ownership of real property and access to business premises may be critical to a party’s business relationships and the conduct of a party’s business.
Property disputes in Australia
Australian property law disputes can be very complex and involve competing interests in the same land, or a challenge to the indefeasibility of a registered interest. The consequences of a property dispute may be very serious to a party’s interest. For example, a party may be at risk of being excluded from its business premises because of an alleged breach of the terms of a lease, or a mortgagee may have entered into possession of a property in order to sell the property even though the mortgagor does not want to lose the property.
Australian property law disputes do not only involve registered interests in land such as freehold title, mortgages and leases, but also interests described as equitable interests or the rights of beneficiaries of land held on trust.
Bill Morgan recently acted in a dispute between a lender and a borrower in which our client, the borrower, sought to prevent the lender from taking possession of the property over which the lender had a mortgage. Our client alleged that the lender had acted unconscionably under the Australian Investments and Securities Commission Act. Borrowers should consider the availability of a statutory unconscionability defence or claim if they believe the bank has acted against conscience in their dealings with them.
Beneficiary under a fixed trust
If you are a beneficiary under a fixed trust, a unit trust or a discretionary trust and you believe that the trustee is not acting in your best interests, you should seek legal advice about your rights.
There are circumstances in which a party may contribute and advance monies to acquire or improve a property registered in another party’s name and not their own name, or a party may invest monies for a specific purpose but the purpose is not fulfilled and a property ends up being purchased in another party’s name and not the first party’s name. If you find yourself in such circumstances, whether or not the property was registered in the other party’s name by consent or behind your back you may have rights in respect of the property and remedies available to you in Court. If you face such circumstances, then we have the experience to assist you to enforce your rights.
It is not unreasonable for you to be concerned in situations where property purchased in another party’s name using your money could then be sold or mortgaged, putting at risk your rights over the property. You may need to take urgent action to lodge a caveat or obtain an order from the Court preventing any further dealings in the property until the Court makes final orders about your rights.
Disputes between landlords and lessees
Bill Morgan, our commercial litigation and property dispute specialist, has acted in a number of disputes between landlords and lessees, mortgagors and mortgagees, co-owners of land, and sellers and buyers of land. He has acted for clients who invested monies in property registered in another party’s name and in matters involving a breach of trust. He has acted in major commercial litigation I which his client obtained a freezing order to freeze dealings in a property in which his client invested a very large sum of money but which was registered in another party’s name.