Caveats

Absolute v Subject to Interest

 Unit trust — Whether beneficiary of unit trust has proprietary interest and therefore a caveatable interest — Absolute caveat — Whether justified — Whether “notice” caveat justified — Power of court to amend caveat: Binningup Nominees Pty Ltd As Trustee For the Lakewood Shores Unit Trust v Brogue Tableau Pty Ltd [2004] WASC 14

Amendment of

 Extension of caveat — Application for amendment of caveat from an absolute caveat to a subject to claim caveat — Whether court has power to make the amendment — Discretion — Balance of convenience — Undertaking as to damages: Palazzo Homes Pty Ltd v Goh [2010] WASC 407

Compensation

Real property — Caveats — Lodgement of caveat without reasonable cause — Compensation for improper lodgement: Farvet Pty Ltd v Frost [1997] 2 Qd R 39; Miller & Anor v Loel & Anor [2016] QSC 289 at [51] – [56]

Caveats — Reasonable cause — Compensation — Appeal from primary judge’s decision granting compensation for unreasonable caveat — Appellant lodged caveat to protect constructive trust claim: Edmonds v Donovan [2005] VSCA 27

Caveats — Without reasonable cause — Damages — Application for order that respondent lodged caveat without reasonable cause — No caveatable interest in land: Westpoint Corp Pty Ltd v Registrar of Titles [2005] WASC 273

Caveat — Caveatable interest existed — Absolute caveat lodged — Court ordered removal of absolute caveat — Claim for compensation — Whether caveat was lodged without reasonable cause — The “imputing” to a client of a solicitor’s absence of reasonable grounds for advice where the client, on the basis of that advice, lodges a caveat: Brogue Tableau Pty Ltd v Binningup Nominees Pty Ltd [2007] WASCA 179

Caveat – companies in liquidation sought orders against defendant for compensation under s74P Real Property Act 1900(NSW) – companies were registered proprietors of property – companies indebted to bank under loan agreements secured by mortgage over property – receivers and managers caused companies to enter contract with purchaser – defendant lodged caveat against title to property – companies sought order caveat be withdrawn – defendant withdrew caveat before return date of summons – companies claimed they suffered pecuniary loss because of lodgement of caveat and defendant’s failure to withdraw caveat when requested to do so – onus – reasonable cause – held: evidence established on balance of probabilities that, if defendant had not lodged its caveat, settlement of contract would have taken place – companies entitled to compensation: Arkbay Investments Pty Ltd (in liquidation) (receivers and managers appointed) v Tripod Funds Management Pty Ltd [2014] NSWSC 1003

Extension of

 Application to extend caveat — Whether undertaking as to costs required — Bias in favour of requiring undertaking extension costs: Australian Security Estates Pty Ltd v Bluecrest Holdings Pty Ltd [1999] NSWSC 524

Caveats — Application for extension — Existence of caveatable interest — Family dispute between mother and daughter — Claim of insufficient substance: Sullivan v McMahon [1999] WASC 84

Caveats — Operation — Extension — Application to extend operation of caveat to protect option to buy — Caveat later in time than first defendant’s mortgage: Perpetual Pty Ltd v National Australia Bank Ltd [2002] WASC 13

Caveats — Interests in land — Restrictive covenants — Application for extension of operation of caveat — Caveat based upon oral representation allegedly made by vendor to purchaser: Westpoint Corp Pty Ltd v Registrar of Titles [2004] WASC 189

Caveats — Extension of caveat — Caveatable interests — Appeal from decision of master refusing application for extension of operation of caveat — Caveat failed to identify nature of estate or interest in land: Redglove Projects Pty Ltd v Ngunnawal Local Aboriginal Land Council [2004] NSWSC 880

Caveats — Extension of operation — Discretion — Application for extension of operation of caveat — Plaintiff lodged caveat in respect of land owned by defendant: CJ Redman Construction Pty Ltd v Tarnap Pty Ltd [2005] NSWSC 1011

Caveats — Application to extend caveat — Caveatable interest — Application for order extending caveat — Defendant and father purchased property as tenants in common: Burns v Bayliss [2006] WASC 102

Caveats — Application for extension of operation of caveat — Caveator negotiated to purchase property — Gazumped by employee of real estate agent — Lodged caveat claiming beneficial interest in property: Gonsalves v Debreczini [1999] NSWSC 488

General

Whether serious question to be tried as to constructive trust – whether such interest would be defeated by laches or acquiescence — Whether order dismissing application but with ancillary order to give the caveator the security provided by its caveat was appropriate: Multan Pty Ltd v Ippoliti and Anor [2006] WASC 130

Restrictive covenant — Running of burden — Application for declaration of interest in land capable of supporting caveat — Restrictive covenant in contract for sale and subsequent deed: Midland Brick Co Pty Ltd v Welsh [2006] WASC 122

A caveat will not be extended on an ex parte application when the caveator has left bringing the application until the last minute: Satchithanantham v National Australia Bank [2010] NSWSC 1338; Wonderland Business Park Pty Ltd v Hartford Lane Pty Ltd [2001] NSWSC 86; Malouf v Donohue [2001] NSWSC 335

Withdrawn caveat – permissability of another caveat on the same ground: Re Leighton Properties [1990] 2 Qd 235

Sale of portion of land prior to subdivision – caveat lodged over entire land – whether caveatable interest: Lintel Pines PL v Nixon & Anor [1991] 1 VR 287

Whether interests of members of unincorporated assoc can be noted on register: Bacon v O’Dea 25 FCR 495

Conditional contract sustains caveat: Henderson ex Parte Harburg [1994] ANZ Conv Rep 170

Mortgagor’s entitlement to caveat against improper exercise of power of sale: Swanston Mortgage v Trepan investments [1994] ANZ Conv Rep 176

Bare trustee – equitable charge over all present and future real property – whether equitable interest in land capable of supporting a caveat: Thorpe v Bristile Ltd 16 WAR 500

Priorities as between equitable interests – unregistered mortgages – purchasers lien – caveats – relevant principles – effect of removal of caveat – 6 competing interests: Elderly Citizens Homes of SA Inc v Balnaves 72 SASR 210

Application under (WA) Transfer of Land Act 1893 s 138C — Investment in and contribution to improvement of property — Caveatable interest — Serious question to be tried: Jandric v Jandric [1999] WASC 22

Caveat by second purchaser: Yarwood v Mills [1999] ANZ Conv R 240

Caveats — Validity — Equitable interest — Unspecified — Whether supporting statutory declaration could cure defect: Cruz v Osborne [1999] WASC 8

Caveats — Application to prevent registration — Existence of caveatable interest — Dispute over tenancy arrangement agreed between parties — No arguable case for maintenance of caveat registration restraint: Kiami Pty Ltd v Peat Resources (Aust) Pty Ltd [1999] WASC 92

Caveats — Caveatable interest claimed ‘as equitable mortgagee of fee simple’ of Torrens title land — Registered first mortgage already in existence — Technical misdescription remedied by (NSW) Real Property Act 1900 s 74L — Caveatable interest as equitable mortgagee in relation to mortgagors’ equity of redemption: Windella (NSW) Pty Ltd v Hughes [1999] NSWSC 1129

Caveats — Application by one tenant in common for removal of caveat — Caveat lodged by estranged wife of other tenant in common — Interest of caveator claiming property entitlement in family law proceedings — Whether claim of spouse for an order for property adjustment may create caveatable interest: Bell v Graham [2000] VSC 142

Caveats — Removal of caveat — Caveator purchaser under contract for sale — Application by vendor for removal of caveat — Vendor purported to rescind contract: Seifert v Two Point Pty Ltd [2001] VSC 394

Caveats — Removal — Caveatable interests — Application for removal of caveat over land — Caveat lodged by spouse during matrimonial dispute and on appeal: Flagstaff Securities Ltd v Jackson [2001] VSC 450

Equitable charge — Loan agreement — Plaintiff claims declaration caveat validly secures interest of plaintiff — Whether loan agreement and caveat give rise to interest in land: Nudd v Official Trustee in Bankruptcy [2002] NSWSC 399

Caveatable interests — Unstamped instrument — Application for caveat — Caveatable interest based upon unstamped instrument: Weston v Metro Apartments Pty Ltd [2002] NSWSC 682

Clauses in contract for sale of land granting caveators rights to charges on real property — Charges to secure indemnities: Narui Gold Coast Pty Ltd v Charles Harrison Pty Ltd: [2003] NSWSC 35

Caveats — Operation — Extension — Appeal from decision of trial judge — Decision extending operation of caveat: Narui Gold Coast Pty Ltd v Charles Harrison Pty Ltd [2003] NSWCA 238

Caveatable interests — Unit trusts — Application for defendant to show cause why caveat should not be removed — Plaintiff registered proprietor of land: Binningup Nominees Pty Ltd v Brogue Tableau Pty Ltd [2004] WASC 14

Caveats — Interest in property — Consideration in loan — Application for declaration of interest in properties and recognisance of validity of caveats — Respondent sought monies to develop property: Gippsreal Ltd v Registrar of Titles and Kurek Investments Pty Ltd —[2006] VSC 115

Licences — Caveats — Family arrangements — Application for orders to establish and protect equitable interest in land — Plaintiff alleged agreement to allow plaintiff to enter and use defendant’s land and facilities: Mazzuchelli v Mazzuchelli [2006] WASC 124

Caveatable interests — Interest in land Conveyancing — Caveat — interest as beneficiary by operation of law pursuant to an obligation pursuant to a clause in a contract, alternatively as a beneficiary under a constructive trust arising from a breach of fiduciary duty to advance a joint venture agreement: Cousins Securities Pty Ltd v CEC Group Ltd — [2007] QCA 192

Land – nature of share in partnership – equitable interest in every asset in partnership – whether partner has proprietary interest in every asset including land – whether interest of partner capable of supporting a caveat: Connell v Bond Corporation (1993) 8 WAR 352

Whether sub-purchaser has a sufficient equitable interest to justify a caveat: McDonald v Isaac Construction [1995] 3 NZLR 612

Plaintiff is second unregistered mortgagee – Second Defendant is registered first mortgagee – whether caveat protecting second unregistered mortgage bad in form because prohibits “any dealing” – effect and construction of s 74H(5)(g) Real Property Act – whether caveat should be extended – discretion: Guardian Loans Pty Ltd v FTFS Holdings Pty Ltd & Ors [2009] NSWSC 1163

Whether owner in fee simple has a caveatable interest in his own land: McCourt v National Australia Bank [2010] WASC 121

Alleged improper exercise by mortgagee of power of sale — New caveats lodged after original caveats ordered to be removed: McCourt v National Australia Bank Ltd (No. 2): [2010] WASC 151

Injunction to Restrain Lodgement of Caveat

Caveats – Lapse, removal and withdrawal – test for ordering withdrawal is whether the caveator would have been granted an interlocutory injunction to protect the interest claimed in the caveat Bayblu Holdings Pty Ltd v Capital Finance Australia Limited [2011] NSWCA 39

Whether injunction may be granted to restrain the threatened lodgement of an unsustainable caveat where compensation under would be an inadequate remedy: Crown Developments Australia Pty Ltd v Ginger Development Enterprises Pty Ltd [2003] NSWSC 593

Lapse of caveat

 Caveats — application to direct Registrar-General to cancel removal of a lapsed caveat from the title PCI Equity Pty Ltd (in liq) v Lepore [2010] SASC 84

Limitation Period

Commencement of proceedings — Limitation periods — Lapse of caveat — Appeal against dismissal of application to set aside respondents’ caveat: Cousins Securities Pty Ltd v CEC Group Ltd [2007] QCA 192

Removal of

The principles to be applied in considering applications for the removal or extension of a caveat were comprehensively summarised by Beech J in Bashford v Bashford [2008] WASC 138 [42]-[57].

General principles applicable for removal of caveat: Kerabee Park Pty Ltd v Daley [1978] 2 NSWLR 222

Creation of charge upon the land – nature of a caveat and the jurisdiction to order it’s removal: DCT V Corwest Management Pty Ltd [1978] WAR 129

Caveat to protect general charge given over land to secure debt – ulterior motive – sufficient other security – removal: Porter v McDonald & The Registrar of Titles [1984] WAR 271

Proposed sale by first mortgagee — Caveat by subsequent unregistered mortgagee – A person claiming an interest in land under 3 unregistered mortgages lodged caveats claiming a prohibition of any dealing – Registered first mortgagees, who also held unregistered mortgages prior in time to those of the caveator applied for removal of the caveat so as not to frustrate a proposed mortgagee’s sale pursuant to s 77 of the Transfer of Land Act 1958 – The caveator did not offer to amend so as to claim the protection to which it was entitled – Held: ordering removal of the caveats: (i) The onus was on the caveator to justify maintenance of the caveats – (ii) The wide protection claimed by the caveator was a relevant consideration, and was likely to be prejudicial to the exercise by the applicants’ exercise of their power of sale – (iii) There was nothing in the evidence to show that the proposed sale was improper or was likely to be prejudicial to the caveator: Lewenberg Pryles v Direct Acceptance [1981] VR 344

Mortgagee as chargee of trust assets – Removal of caveat – Transfer of Land Act 1893, ss 138 – Relevance of balance of convenience: Customs Credit Corporation Ltd v Ravi Nominees Pty Ltd 8 WAR 42.

Equitable mortgagee — Application for removal of caveat: Heating & Air-conditioning Pty Ltd (in liq) v Crane Distribution Ltd [2006] VSC 76

Unregistered lease — Lessee rights — Application for removal of caveat — Applicant registered first mortgagee of property held by company: Oakland Investments (Aus) Pty Ltd v Senior Living Pty Ltd [2008] VSC 422

Caveat – plaintiff sought order against first defendant for removal of caveat over property – there was no serious question to be tried as interest of prior registered mortgagee was paramount and indefeasible against alleged subsequent interest – caveat lapsed by time matter came for hearing – plaintiff sought order that no further caveat be lodged by first defendant in relation property without leave of Court – held: first defendant was serial caveator – caveats entirely without merit in relation to matters involving plaintiff – orders made restricting first defendant from lodging any further caveats: Permanent Custodians Ltd v Bertola [2015] WASC 301