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Caveats Series Part 11: Service of notices on caveators by registered post

Blog Post
Vikram Misra, Barrister at Clarence Chambers continues his series into caveats as he discusses how service of notices, such as lapsing notices, can be effected on caveators under the Real Property Act 1900 (NSW). To hear more from Vikram, follow his series here.   Section 74N of the Real Property Act 1900 (NSW) (“the Act”) prescribes the methods in which service of notices, such as lapsing notices, can be effected on caveators. One method is by sending the notice by registered post to the address required to be included in the caveat, pursuant to s 74F(5)(b)(viii) of the Act. Where the... read more →

Caveats Series Part 10: Caveats and the Property (Relationships) Act 1984 (NSW)

Blog Post
Vikram Misra, Barrister at Clarence Chambers continues his series into caveats as he discusses the lodgment of caveats for contributions made to property and the Property (Relationships) Act 1984 (NSW). To hear more from Vikram, follow his series here.   A claim to an estate or interest under the Property (Relationships) Act 1984 (NSW) (“the Act”) is not itself a caveatable interest. This is because a caveat "cannot be lodged to protect what is merely a claim to exercise a cause of action".[1] Practitioners should therefore look for other valid basis to lodge the caveat, or perhaps seek an injunction... read more →

Caveats Series Part 9: Caveat Clauses in Residential Building Contracts

Blog Post
Vikram Misra, Barrister at Clarence Chambers continues his series into caveats as he discusses how caveat clauses should be drafted in residential building contracts, in accordance to s 7D of the Home Building Act 1989 (NSW). To hear more from Vikram, follow his series here.   Terms in residential building contracts that purport to grant a builder an interest in the owner’s land and also a right to lodge a caveat over the owner’s land, must accord with section 7D of the Home Building Act 1989 (NSW) (“the Act”). It is therefore vital that practitioners have a thorough understanding of... read more →

Caveats Series Part 8: Withdrawal of Caveats and Postponing Conduct

Blog Post
Vikram Misra, Barrister at Clarence Chambers continues his series into caveats as he explores the withdrawal of caveats and postponing conduct by exploring judgments in a variety of cases. To hear more from Vikram, follow his series here.   In my previous article I considered the impact of caveats on the priority of unregistered interests, specifically in situations of a failure to caveat. It will be recalled that in some circumstances a failure to caveat will contribute to a finding of postponing conduct, displacing the ordinary rule - qui prior est tempore potior est jure.  That article can be viewed... read more →

Caveats Series Part 7: Consequences of lodging a caveat without reasonable cause – s 74P of the Real Property Act 1900 (NSW)

Blog Post
Vikram Misra, Barrister at Clarence Chambers continues his series into caveats as he examines the consequences of lodging a caveat without a reasonable cause. He shares the key takeaways by looking into the history of s 74P of the Real Property Act 1900 (NSW) and by analysing the "without reasonable cause" test. To hear more from Vikram, follow his series here.   Section 74P of the Real Property Act 1900 (NSW) (“the Act”) deals with the consequences of lodging a caveat without reasonable cause. It provides a mechanism for compensation to be paid to any person who sustains pecuniary loss that is... read more →

Caveats Series Part 6: Does the Right to the Proceeds of Sale of Real Property Create a Caveatable Interest?

Blog Post
Vikram Misra, Barrister at Clarence Chambers continues his series into caveats as he debates whether the right to the proceeds of sale of real property create a caveatable interest. To hear more from Vikram, follow his series here.   A practitioner will usually face this question in two situations where one’s client has an entitlement to proceeds of the sale of real property: where orders are made as to the sale of property in Family Court proceedings; and where trustees are appointed for the sale of land pursuant to s 66G Conveyancing Act 1919 (NSW). In Powell v Stone [2014]... read more →

Caveats Series Part 5: The Intersection Between Caveats and the Duties Act 1997 (NSW)

Blog Post
Vikram Misra, Barrister at Clarence Chambers continues his series into caveats as he examines the intersection between caveats and the Duties Act 1997 (NSW), in particular, the application of the act on the validity of a caveat. To hear more from Vikram, follow his series here.   An often overlooked issue is the application of the Duties Act 1997 (NSW) (‘the Act’) on the validity of a caveat supported by virtue of an equitable interest in the form of a mortgage or charge. Although mortgage duty has been abolished from 1 July 2016, duty still applies to those mortgages/instruments of... read more →

Caveats Series Part 4: But my Caveat is First! The Impact of Caveats on Priority of Unregistered Interests

Blog Post
Vikram Misra, Barrister at Clarence Chambers continues his series into caveats as he provides a comprehensive look into the impact of caveats on priority of unregistered interests. To hear more from Vikram, follow his series here.   While there is no obligation on an unregistered interest holder to lodge a caveat to preserve that interest’s priority, failing to caveat can, in some circumstances, result in the loss of priority. To understand the role that a caveat plays in priority disputes, one must understand its purpose and effect. The purpose of a caveat is not to serve as notice to the... read more →

Caveats Series Part 3: Restrictions on Lodgment of Further Caveats if Earlier Caveat Lapses or is Withdrawn

Blog Post
Vikram Misra, Barrister at Clarence Chambers continues his series into caveats as he provides a comprehensive look into restrictions on the lodgment of further caveats when earlier caveat lapses or is withdrawn. To hear more from Vikram, follow his series here.   Introduction Section 74O of the Real Property Act 1900 (NSW) (‘the Act’) applies in situations where, a caveat lodged in respect of any particular estate or interest in land subsequently lapses or is withdrawn under specified circumstances (‘the Earlier Caveat’) and the same caveator lodges a further caveat in respect of the same estate or interest, purporting to... read more →

Caveats Series Part 2: Can a Mere Contractual Right to Lodge a Caveat Support a Caveatable Interest?

Blog Post
Vikram Misra, Barrister at Clarence Chambers continues his series into caveats as he examines the ability of a contractual right to lodge a caveat support a caveatable interest. For more on his series, read Part 1 here. The mere contractual right of one party to an agreement to lodge a caveat over another’s real property does not itself support a caveatable interest in land. As such, this is another ground of attacking a caveat on the basis that the caveator does not hold a valid caveatable interest: Murphy v Wright (1992) 5 BPR 11,734. These problems often arise in situations... read more →
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