Practice Areas

Bransgroves has led the field in acting for lenders on advances, enforcement and priority disputes for over ten years. More recently the firm has become well known for taking the side of mortgage originators and aggregators in their disputes with wholesale funders.

We understand that construction disputes involve complex technical and factual issues, voluminous documents, and often many parties and a long project history. We understand that our clients cannot afford a legal free-for-all, with disastrous financial consequences for projects, firms and guarantors. To eliminate this we carefully balance theoretical legal rights with the realities of the situation and help our clients devise cunning strategies to short-circuit disputes and bring about optimal settlements for our clients.

Bransgroves Lawyers act for:

1. Developers
2. Financiers
3. Builders
4. Sub-contractors
5. Suppliers
6. Architects
7. Engineers

We provide focussed, result-oriented legal services in disputes over:

1. the  Building and Construction Industry Security of Payment Act (NSW) 1999;
2. the Home Building Act 1989;
3. the Contractor’s Debts Act 1997;
4. the scope of work between owners and builders;
5. the scope of work between builders and sub-contractors;
6. conflicting services and building structures;
7. drawing and submittal rejections;
8. weather and geotechnical caused delays;
9. site access and co-ordination of multiple prime contractors;
10. subcontractor substitution;
11. statutory warranties;
12. defects;
13. variations;
14. termination;
15. funding drawdowns.

In addition to litigation we assist clients with:

1. strategy,
2. mediation,
3. arbitration,

On 1 January 2011 the Trade Practices Act 1974 was renamed the Competition and Consumer Act 2010. The Competition and Consumer Act catches conduct, contracts, arrangements or understandings which affect competition, prices, trade or commerce, and consumer safety. These laws can also be used by businesses and consumers to obtain remedies against businesses who have infringed these laws. These include:

1. Accepting payment without intending to supply
2. Bait advertising
3. Compulsory product recall in respect of defective product
4. Conditions and warranties in consumer transactions
5. Consumer product standards
6. Demanding payment for unsolicited goods or services
7. Emergency orders in respect of defective product
8. Exclusive dealing & forcing conduct
9. False and misleading representations
10. False representations in relation to land
11. Falsely offering prizes
12. Harassment and coercion
13. Market sharing
14. Misleading & deceptive conduct
15. Misuse of market power
16. Predatory pricing
17. Price fixing
18. Product recall in respect of defective product
19. Product safety and product information
20. Pyramid selling
21. Referral selling
22. Resale price maintenance
23. Sending unsolicited debit or credit cards
24. Trade boycotts by market participants
25. Unconscionable conduct
26. Warning notices in respect of defective product

Given the reach of the Trade Practices Act a wide variety of businesses need to be mindful of its application in their commercial environment to ensure best business practice. Bransgroves Lawyers can help with timely and knowledgeable strategic advice to ensure compliance.

If a prosecution is lodged, section 87B Notice issued, or proceedings commenced, Bransgroves Lawyers can immediately assess your position and apply critical and creative thinking, leveraging on our immense experience, to chart the optimum course.

The prohibition against Misleading and Deceptive Conduct is a statutory cause of action frequently invoked in Australia to buttress allegations of breach of contract and negligence in commercial disputes between contracting parties. There are subtle advantages of pleading and assessing damages under this head rather than relying on common law causes of action and remedies. Bransgroves Lawyers are thoroughly familiar with and constantly keep up with the ever fluctuating case law, and frequently amended statute law, in relation to these claims. We will advise you on the strategic advantages in choosing Federal or Supreme Court for your action and show you cases that match your situation so you can be aware of the potential outcome and make informed strategically sound decisions.

In 2010 our firm pared a $15,300,000 contractual claim down to a $300,000 settlement in a business-on-business dispute utilising new legal arguments arising from the new statutory proportionate liability regimes. Hence, if your business has a dispute with another business in New South Wales, a commercial litigation solicitor at Bransgroves Lawyers is ready to assist you.

Our litigation experience includes contractual disputes over:

1. joint-venture contracts
2. mortgage origination deeds
3. construction disputes;
4. professional indemnity insurance
5. solicitor, architects, quantity surveyor and valuers’ retainers
6. the sale of land
7. financial agreements
8. the purchase of large items of equipment
9. import/export
10. software development
11. brokerage agreements
12. partnership disputes
13. shareholder agreements
14. restrictive employment contract covenants
15. distributorship disputes
16. commercial real estate leasing disputes

In some cases, our client’s opponents attempt to outspend our clients on legal fees in a naïve attempt to resolve the dispute in their favour. This never succeeds with clients represented by Bransgroves Lawyers. However our paperless office, electronic matter tracking, remote affidavit drafting, and electronic discovery technologies, and procedural efficiencies, allow us to match move for move our opponents while keeping our legal fees at a fraction of the cost. Indeed in some cases we have used our itemised legal fees as a negotiating tool sending them to our client’s adversary as evidence of our client’s financial endurance. We zealously take our opponents to task for breaching section 56 of the Civil Procedure Act, where appropriate seeking costs orders personally against other solicitors. We have found these two tactics when applied in combination quickly bring even deep pocketed opponents back on the straight and narrow.

Our proficiency at wielding the stick often allows us to successfully resolve conflicts through well-prepared and meaningful negotiations, including through the preparation of detailed position papers annexing draft pleadings and briefs of evidence.

Despite our robust approach we understand that business relationships may be at stake. Our solicitors take great care in understanding the complex interplay between all involved parties. While they may be opponents in this dispute, there may also be mutually beneficial reasons to keep a relationship intact. There is also our client’s broader business reputation to consider. Thus where appropriate, we work with your business associates to negotiate a win-win solution.

Through our extensive practice in interpreting and litigating commercial deeds we have developed an intricate understanding of the issues that arise from commercial arrangements. We use that knowledge, and our extensive precedent library, to help negotiate, structure and document complex commercial arrangements as well as to advise on strategy and risk management in order to assist our clients avoid litigation.

Bransgroves Lawyers prides itself in providing accurate strategic advice and support to boards, company secretaries and corporate counsel on the broad range of corporate law requirements relating to corporate governance, trade practices and competition law. 

Our up-to-date extensive collection of precedents ensure we are able to offer an efficient and cost-effective service to our clients. Our expertise includes:

1. Confidentiality and restraint-of-trade agreements
2. Conflicts of interest
3. Directors’ duties
4. Drafting and amending corporate constitutions
5. Drafting, negotiating and interpreting of all kinds of commercial contracts, letters of intent, heads of agreement and associated documents
6. Establishment of corporate governance procedures manuals
7. Joint ventures
8. Liquidation
9. Oppression suits brought by minority shareholders
10. Protection of company funds from non arm's length dealings
11. Receiverships
12. Requirements for annual general meetings
13. Shareholders agreements
14. The documentation of board proceedings
15. The exercise of power of sale by corporate mortgagee
16. Voluntary administration

Consistent with our commitment to service to the mortgage lending industry, Bransgroves Lawyers have invested substantial time and effort reviewing and understanding the legislation, regulations and ASIC Regulatory Guides, relating to:

1. The provision of credit subject to the National Consumer Credit Protection Act 2009.
2. The raising of funds through a Responsible Entity for purpose of lending on mortgages.

Our solicitors have a commercial and practical understanding of the operational challenges facing lenders in an ever-changing regulatory environment. By combining our detailed knowledge of the regulatory environment with a strong understanding of your business our lawyers can help your business meet its regulatory and prudential challenges at minimum cost and with optimal commercial results. This allows us to reliably and efficiently advise our lender clients on:

1. Avoiding coded loans;
2. Enforcing coded loans;
3. Obtaining an AFSL licence to lend on consumer mortgages;
4. Obtaining an AFSL licence to operate a managed investment scheme;
5. Complying with credit licences;
6. Complying with licences to operate mortgage trusts.

Bransgroves Lawyers are adept and well known in legal circles for their alacrity and competence in applying for injunctions before the NSW Supreme Court. Situated less than 100 meters from the court our solicitors' unique load balancing procedures allow us to devote resources toward unplanned urgent interlocutory injunctions required by our clients. Our solicitors' deep understanding of the law of Equity allows us to advise our clients on the merits of their application, and the wisdom of giving undertakings as to damages, on short notice without the need for time-consuming research.

Our solicitors are thoroughly competent in advising on and seeking:

1. Orders for Short Service
2. Ex parte applications
3. Mandatory injunctions
4. Freezing orders (Mareva injunctions)(assett preservation orders)
5. Freezing orders against third parties
6. Anti-suit injunctions

Our extensive practice acting for lenders on construction loans over the last ten years has exposed our solicitors to the coal face of insolvency litigation and given us the edge in strategic problem solving for our creditor clients.

We only represent creditors and do not act for companies at risk of insolvency or insolvency professionals. We assist creditors with strategic advice prior to entering into dealings with third parties that may become insolvent, as well as assisting them in their dealings with externally administered debtor companies.

We litigate on behalf of our creditor clients to:

1. Defend the receiverships appointed by our clients
2. Establish priority over charged assets
3. Have liquidators, administrators and receivers removed
4. Recover against directors and holding companies for insolvent trading
5. Recover possession of charged assets
6. Recover property subject to retention of title clauses
7. Recover unfair preferences
8. Resist the setting aside of a ‘statutory demand’
9. Seek Mareva injunctions to preserve assets
10. Seeks orders for judicial sale of land pursuant to equitable charges
11. Set aside deeds of company arrangement
12. Set aside voidable transactions

Bransgroves has developed a reputation for efficiency and effectiveness in dealing with highly complex, sophisticated commercial litigation involving large volumes of documentation. Supreme Court and Federal Court litigation constitutes 90% of our fee income and we use our track record as our number one marketing tool.

Our approach to litigation

We act for small to medium sized companies who can ill afford triple figure legal costs to dispose of nuisance or even critical litigation. Ours is a frugal approach to litigation, we utilise advanced technology and a minimalist approach to get the job done at the least cost to our clients. Our focus is always on winning the case, rather than going through the motions. This has endeared us to our clients and given us a formidable reputation amongst our opponents.

We constantly review our practises and procedures to give our clients more value for their money. This includes:

1. Declining instructions from clients who do not use email. We like to keep costs and aggravation to a minimum which is impossible unless the client is copied in on every piece of correspondence. Email is the only practical way to do this.
2. We never write letters to our client commenting on letters received from others. This is does nothing but rack-up fees. Instead we rely on our client’s ability to read.
3. We run a paperless office. This allows us to email our file to our client or our client's accountant or auditor, without charging money or taking any time. If our clients ask for a document they get it instantly at no charge because for us it is only a few clicks away at most.
4. Instead of keeping our clients in the dark we encourage the truism that more heads are better than one by copying our clients in on all internal emails regarding their matter. This keeps them in the loop, and allows them to arrest any misconceptions we have, before our time and their money is wasted.
5. We have dropped the traditional practice of faxing documents, then stamping them with 'faxed', and then posting them. Instead, we send all letters as pdf files attached to email, unless proof of receipt is required.
6. We use electronic discovery and always fight for informal discovery (without the need to prepare lengthy useless lists, that no one will ever read) in order to keep the costs down.
7. Avoiding lengthy and expensive conferences with clients. Instead when we prepare pleadings and affidavits we have our clients remotely log into our system so that the work can be done over the telephone (with both the solicitor and client seeing the words on the screen as they are typed). This allows extensive work to be broken into more manageable chunks and reduces waste brought about by fatigue;
8. All our paralegal staff are all high-scoring law students, so there is a desire to learn and improve, and the intellectual capacity to avoid making mistakes.
9. All our solicitors are extensively cross-trained to ensure resources can be re-deployed to address peaks in work flow and to allow for absences. Together with our technology, this allows a seamless and stress free take-up of the fluctuating demands of our clients.

Barristers

Even with the best solicitors in the world a client can still be aggravated, over-charged, and poorly represented if the barrister, is not up to scratch. Accordingly:

1. We never use a barrister who is of unknown quality. Most of our barristers have been with us for years. Our stable of barristers only grows when we have found ourselves up against an outstanding barrister whose legal knowledge, case preparation and acute reasoning over a lengthy trial convince us he is a valuable acquisition. We never accept referrals from our existing barristers. We learned long ago that the best of barristers will refer the worst (if they happen to share chambers).  
2.  We do not conference with barristers. Conferences are a waste of our clients’ money. There is nothing that can be said by a solicitor to a barrister that is not more efficiently and comprehensively said in an email. Moreover, by putting it in writing the client can be kept in the loop. We have found that barristers tend to be lazy and careless in their oral speculation, but diligent and well-researched in their written advices. Written advices force barristers to structure, research, and fully consider their advice.
3. We only use barristers for contested hearings. For all interlocutory mentions and appearances we use our solicitors. For return of subpoena and directions by consent we use our law student paralegals;
4. We brief barristers simply by sending a short email attaching the documents they need. We do not write 20 pages of elaborate “observations”, nor do we put together tabbed folders and other redundant material.

Billing
Our billing practices unquestionably result in lower bills and less aggravation for our clients. In this regard we:

1. Never fail to bill at least monthly. If an intense period is afoot we bill even more frequently, sometimes even daily, so that our clients receive no nasty surprises;
2. We do not charge for copying or forwarding incoming emails to our clients;
3. We do not charge clients for brief telephone calls;
4. We do not charge clients for photocopying or faxing fees;
5. When we attend a directions list we divide the bill between the matters we have in that list;
6. Every item we bill is evidenced by a document that the client has seen. We never charge for “reviewing the file” or “researching” or other intangible items that lawyers use to pad bills;
7. If a client disputes an item or items on our bill we generally concede the point and move on.

Bransgroves specialise in acting for the executors of substantial estates and as the executors of substantial estates. We skilfully and aggressively defend the gifts made to named beneficiaries against the claims made by those who have been wholly or partly left out of a will. We also advise living testators on what steps that they can take to ensure their bequests are respected by the court after they die.

Click here to read an article in the Sydney Morning Herald our partner Lesa Richards provided the legal analysis for.

Family provisions

Bransgroves Lawyers take the view that the Family Provision regime provided for in Chapter 3 of Succession Act 2006 (NSW) is inimical to the rule of law, both in conception and in application, it being nothing less than an attempt to legislate morality, and foundering, like all such attempts, in a sea of arbitrary and unjust outcomes. Aside from being arbitrary and unjust Family Provisions orders are a gross violation of the most sacred and basic freedom upon which the whole of Western Civilisation is founded.

Freedom is … a liberty to dispose, and order, as he likes, his person, actions, possessions, and his whole property… not to be subject to the arbitrary will of another, but freely follow his own.

John Locke

The Family Provision regime sees judges deciding whether: estrangements that happened 30 or 40 years before were justified; who out of different children is more deserving, what “bad” conduct justifies exclusion from a will; whether the reasons given in a will match up to society’s expectations. All this is determined by a judge applying his personal values. The case law clearly shows that the decisions have not generated a body of predictable precedent – the outcome depends entirely upon the whims and mood of the judge.

The arbitrary outcomes seen in Family Provisions cases are compounded by their lack of underpinning moral principle. If it is a violation for a father not to “make adequate provision” for his adult drug addicted son, who threatens him with violence, then why does the law not force him to “make adequate provision” for his adult drug addicted son while he is living. The reason is clear, because a person’s money and property is theirs to bestow as they please. If the government violated property in such a personal realm, there would be outrage! This law is therefore a gesture by those who are disrespecting of property rights towards a just society (something than can never be defined by the fixed and settled law).

In morality no individual has the right to plunder a dead man’s possessions and to confiscate his house from his widow, distributing it to others as he sees fit. Nor can be gained by individuals acting as a group, however large, even if it is called democracy. Such a law is therefore profoundly immoral.

Nor could any man in the state of nature, have a right to violate the property of another; that is, what another had acquired by his act or labour; or to interrupt him in his industry and enjoyments, as long as he himself was not injured by that industry and those enjoyments. No man therefore could transfer to the magistrate that right which he had not himself.

John Trenchard

Wills

Bransgroves are specialists at drafting the unimpeachable will. A will can be challenged if it can be credibly argued that the will maker:

1. Did not approve its contents;
2. Did not possess the requisite mental capacity;
3. Was a victim of undue influence;
4. Made insufficient provision (under the Family Provisions Act).

Where the testator is elderly or infirm and making a fresh will that is likely to be controversial, Bransgroves recommends that the will be discussed, signed and witnessed on video camera at our offices. We pioneered this approach which we have found instantly quells all opposition and removes the scope for any costly litigation. Otherwise those alleging undue influence or lack of mental capacity, or even fraud, can lead evidence from old medical records and involve costly medical experts to establish that the testator lacked capacity to make the will. By intensely studying the case law we can also advise testators on what to say to the camera and in their will as a testament to make it extremely difficult if not impossible for the court to interfere with the will under the Family Provisions regime.

Probate and Letters of Administration
Obtaining probate or letters of administration for the layman is like obtaining a Development Application for the layman. It is confusing, frustrating, time-consuming and better done by an expert. Our solicitors are highly experienced and competent in probate applications and letters of administration applications. Our advanced software allows us to obtain grants quickly and cheaply, in most cases a number of weeks.

Whether you require executor help or would like us to deal with the estate in its entirety our professionalism and experience will be invaluable to you at this difficult time.

Executors and Executor assistance
The role of executor is not straightforward. The process is time consuming and far reaching. The greater the value of the estate and the more diverse the assets the greater the chance that mistakes will be made. Bransgroves offers a tailored service, working on whatever aspect of executorship is required. Whether you require help as an executor or would like us to deal with the estate in its entirety our efficiency and experience will deliver results quickly and at minimum expense.

Bransgroves Lawyers specialise in acting in relation to professional negligence claims against finance, legal and building professionals. In all of these cases professional indemnity insurance plays a crucial role and we are adept at dealing with insurers and if needs be joining them to proceedings. Our knowledge of insurers, their tactics, their hopes and fears, allows us to drag them to the negotiating table in most cases where indifferent representation would see them stonewall until the very end.

We stay at the forefront of developments in the law, including the ever shifting sands of quantification of damages, and the more recent developments in relation to proportionate liability. A topic on which our partners Matthew Bransgrove and Kate Cooper have both recently presented papers on for the College of Law.

We accept instructions in relation to claims against:

1. Accountants
2. Auditors
3. Barristers
4. Building Contractors
5. Conveyancers
6. Engineers
7. Financial Planners
8. Insolvency practitioners
9. Lawyers
10. Liquidators
11. Mortgage brokers
12. Quantity surveyors
13. Solicitors
14. Superannuation trustees
15. Surveyors
16. Trustees
17. Valuers

Matthew Bransgrove, is the co-author of the Essential Guide to Mortgage Law in NSW, and heads up our property litigation departments. His extensive experience in property litigation in NSW goes back 20 years. By virtue of our extensive involvement in mortgage enforcement over the last 10 years Bransgroves acted in many of the leading cases in relation to property law. All our partners contribute extensively to the academic literature on property law through our College of Law papers and our article in the Law Society Journal.

Whatever your property related dispute, Bransgroves will be able to recognize the crux of the dispute and dig up a strategy and legal precedent to suit your position. Our deep familiarity with the Equity Division of the Supreme Court, and the black letter law enable us to achieve outcomes for our client, in most cases through the use of interlocutory applications that effectively dispose of the dispute, avoiding the need for a full-blown trial. 

1. Caveats
2. Compensation from the Torrens Assurance Fund
3. Constructions loans
4. Contracts for the Sale of Land
5. Correction of the register
6. Crown leases
7. Dealings by undischarged bankrupts
8. Easements
9. Equitable mortgages
10. Farm Debts Mediation Act
11. Indefeasibility
12. Injunctions to restrain sale
13. Insolvent registered proprietors
14. Joint tenancies
15. Joint ventures
16. Judicial sale
17. Leases
18. Life estates
19. Marshalling
20. Mortgages
21. Negligent conveyances
22. Negligent valuation
23. Notices to Complete
24. Purchaser's lien
25. Rescission of contracts for sale
26. Registration
27. Restrictive covenants
28. Right to possession
29. s66(G) applications
30. Stamp duty
31. Strata title
32. Sub-division
33. Tenancies in common
34. Transfers
35. Vendor finance
36. Writ of possession

Shareholder disputes are costly to the business and stressful for the individuals involved in them but the participants can be helped through the process by their advisers and ultimately by recourse to the courts if there is no other option. Any mechanism used to resolve the dispute, including the courts, should be focussed on a quick and economic resolution.

From time to time businesses will suffer from the effects of internal disputes. These include:

1. Those in effective control syphoning off cash or failing to properly account;
2. The failure to provide information or dividends to minority shareholders;
3. The exclusion of minority shareholders from management;
4. The hijacking of the business from silent partners by active directors;
5. Provision of excessive salaries to majority shareholder employees of the company;
6. Self-interested non-arms-length dealings including discounted assets sales;
7. Related party dealings;
8. Improper use of assets by controlling directors;
9. Removal of directors of minority shareholders;

Bransgroves Lawyers emphasise the need, from the outset, of having a true understanding of the commercial issues at stake. Only then can we use our sizeable experience and legal knowledge to provide carefully devised strategic approach which our client is comfortable with. From the outset, we insist that both ourselves and our client are unanimous on the outcome envisaged. Once this is determined our clients may decide they require:

1. Representation while negotiating the valuation and sale of your shareholding, or a court order, to allow a just and equitable winding up of the company to enable you to recover your investment.
2. The recovery of monies fraudulently syphoned off by the director/s in control of the bank accounts.
3. Mediation of disputes with the help of representation, followed by the implementation of a well drafted shareholder agree.

Shareholder’s agreements

Going into business with others is the commercial equivalent of getting married; and the divorces which follow can be just as destructive of the interests of all involved as a marriage breakdown. However, unlike a marriage it is all about money, so nobody should be offended by the proposition that a binding pre-nuptial agreement (shareholders' agreement) be implemented. A shareholders’ agreement sets out how disputes are to be resolved before they occur. It should provide structures, mechanics and reporting requirements that prevent disputes from arising in the first place. Finally, it should include the formula for a fair demerger or buyout in the event of an irreconcilable breakdown in relations between the directors.

Nor is it just at the outset that we can help in drafting shareholders' agreements. Often the best way to resolve a dispute is to focus on the future, putting in place a well drafted shareholders agreement, this often leads to a reconciliation whereby the current dispute is effectively subsumed. This is because most disputes come about because:

1. There is no written agreement that clearly set out the responsibilities, duties, remuneration for work, profit sharing and capital requirements of the partners/directors/joint venturers;
2. Only one partner or director has access to the payment of accounts and a mechanism to account or review payments, or to revolve responsibilities does not exist;
3. There is no formal mechanism in place to authorise larger payments, expenses, and undertakings;
4. There is no formal mechanism to keep everyone involved in the loop about decisions being made;
5. No distinction has been made between the salary and the profit sharing component of directors' remuneration;
6. There is confusion regarding the status of monies injected into the venture by shareholders, whether they are loans (on what terms), capital injections (with what benefits), guarantees or securities given (with what compensation);

Most shareholders disputes get worse if nothing is done, leading to the destruction or loss of the mutually owned asset. So do not prevaricate longer, call us today for an obligation free confidential discussion of your problem.

Bransgroves Lawyers have in-depth experience and knowledge when it comes to serious Strata-scheme disputes. In many cases our knowledge and experience, when brought to bear, can help resolve disputes sooner rather than later. We encourage disputants to discover the legal position before blundering along in error so that positions become intractable and animosity entrenched.

The types of disputes we assist with include:

1. Enforcement of by-laws
2. Abuse of by-laws
3. Breach of the constitution of the owners corporation
4. Breach of legislation by the owners corporation or the executive
5. Validity of meetings or procedures
6. Variation of insurance and unit entitlement allocations
7. Levy and sinking fund issues
8. Legal cost recovery by owners corporation
9. Hiring and firing and accountability of the Strata Managing Agent
10. Pursuit of developers and builders for defective building work
11. Disputes with developers over management rights
12. Leases to third parties
13. Improper use of common property

The Strata Schemes Management Act 1996 and the Community Land Management Act 1989 set out processes for resolving disputes.

1. Mediation
2. Notice to comply with a by–law
3. Orders by an Adjudicator
4. CTTT hearings
5. Appeals to the District Court
6. Appeals to the Supreme Court

At each step of the way we can help. Alternatively, many clients use us as consultants on the law up to and including the Tribunal hearing only asking us to formally represent them on judicial appeals. Our knowledge of strata law can ensure that you know your rights, can proactively enforce them with confidence and efficiency. 

The law in relation to trusts and fiduciary duties is enforced by a branch of the law known as Equity. Equity is ancient judge-made-law that overlays the common law and statute law. In the early days the Equity courts took it upon themselves to arbitrarily change the outcome of cases based on the Judge’s ideals of what was just. This did more harm than good, because it meant no one could be certain of what their rights were. So as time went by, Equity developed fixed principles that allowed the outcome of cases to be known beforehand and not dependant upon the whim of the judge.

The most important work of Equity is in upholding Trusts and duties of utmost good faith (fiduciary duties).

Trusts

A trust is an arrangement whereby the legal owner of property (including land, financial assets, goods and even businesses) hold that property not for their own benefit but for the benefit of another. The person entitled to the benefit of the property is known as the beneficial owner. The legal owner (trustee) is owner in name only, everything he does must be for the benefit of the beneficial owner (beneficiary of the trust). The trustee owes a fiduciary duty (a duty of utmost good faith) to the beneficiaries.

Bransgroves Lawyers are highly conversant with trust law. This includes both express trusts and resulting trusts. Much of property law and probate law involves trusts and our partners’ constant exposure through prolific litigation in these two areas and academic research keeps us at the forefront of knowledge when it comes to establishing and enforcing trusts.

Fiduciary duties

Fiduciary duties are the obligations of utmost good faith imposed by the law of Equity on a person in circumstances where the person owing the duty (fiduciary) is bound to act for the benefit of another (the principal). In a fiduciary relationship the principal, in a position of vulnerability, reposes confidence, good faith, reliance and trust in another whose aid, advice or protection is sought in some matter. In such a relationship good conscience requires the fiduciary to act at all times for the sole benefit and interests of the principal. Equity will not allow a person owing fiduciary duties to enter into any transaction where the fiduciary has, or could have, a conflict of interest with that of the person to whom the trust is owed. It will oblige the fiduciary to act with loyalty and punish (through equitable damages), apprehend (through injunctions), and reverse (through account of profits) breaches of fiduciary duty.

Bransgroves Lawyers are highly conversant with the law of fiduciary duties. On many occasions it is appropriate to plead breach of fiduciary duty alongside other relief.  In many situations we plead that breaches of a fiduciary duty result in a trust arising and we pursue existing pools of money held by third parties on that basis.