Usefulness of causes of action in equity

Equitable causes of action might be appropriate to try to recover a client’s assets where preventive measures were not put in place or were inadequate. Note that these actions are lengthy, stressful, expensive, and hard to make out.  For these reasons, an older person may not want to pursue an action in equity (see Referring to other services). Arguing equity, however, may be useful in negotiating a settlement.

The risks of litigation are illustrated in Hamilton v Carter ([2011] NSWSC 394) where a claim that a nephew had taken advantage of his aunt’s known position of disadvantage was not made out. There was no finding of undue influence or unconscionability and the claimant had to pay costs to the defendant.

Determining what cause of action to pursue must be done on a case-by-case basis.  Running a case on grounds of unconscionability, for example, may not help where a parent has voluntarily (but ill-advisedly) transferred land or provided their son or daughter with the purchase price for a property that is then registered in their child’s name. For a property that has significantly increased in value, a constructive trust is a more favourable remedy than a lien (Barkehall-Thomas 2008).