07 Aug 2018

Caveats, Lapsing Notices And Extensions

Joshua Knackstredt

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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