Caveats, Lapsing Notices and Extensions

07 Aug 2018

 

What is a caveat?

 

1. A caveat is a statutory injunction with automatic effect preventing registration of

inconsistent dealings on title to land: Barry v Heider (1914) 19 CLR 197, 221 (Isaacs J).

A caveat is not, itself, a “dealing” in land: Real Property Act 1900 (NSW), s 3(1); J & H

Just Holdings v Bank of NSW (1971) 125 CLR 546, 558 (Windeyer J); Coplin v Al Maha

Pty Ltd [2016] NSWSC 1745 at [265] (Lindsay J)

 

2. The primary function of a caveat is protective; that is, it is designed to protect interests

in land from being adversely affected by the registration of a dealing. It is not the

primary function of a caveat to give notice to the world of a claimed interest in land,

although it can also have this effect and, in some circumstances, failure to lodge a

caveat can constitute postponing conduct: Avco Financial Services v Fishman [1993]

1 VR 90, 94 (Tadgell J); Person-to-Person Financial Services v Sharari [1984] 1 NSWLR

745, 747 (McLelland J).

 

Governing regime

 

3. Like the Torrens land system itself, caveats are a statutory creature. In New South

Wales, provision for the lodgement, effect, continuation and removal of caveats is

contained in Part 7A of the Real Property Act.2 However, there is also a considerable

body of applicable case law that has built upon these, and predecessor, provisions.

 

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Joshua Knackstredt

Solicitor 2005
Barrister 2007

02 9151 2937

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