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 →

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 →

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 →

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he provides a comprehensive look into restrictions on the lodgment of further caveats when earlier caveat lapses or is withdrawn.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in situations where, a caveat lodged in respect of any particular estate or interest in land subsequently lapses or is withdrawn under specified circumstances (‘the Earlier Caveat’) and the same caveator lodges a further caveat in respect of the same estate or interest, purporting to...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 →

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 →

Vikram Misra, Barrister at Clarence Chambers begins his series into caveats as he outlines their importance for property lawyers and describing their interest in Part 1.   A caveat is a powerful weapon in a property lawyer’s arsenal to protect their client’s interest in real property. All too often however, legal practitioners lodge caveats that fail to adequately describe the interest claimed by the caveator. This places the client in a position where the caveat may be attacked and declared defective, not only prejudicing any priority of interest, but also exposing the client to a claim for damages[1]. Section 74F(5)... read more →