CAVEAT SERIES ARTICLE 15: EXTENSION OF CAVEAT APPLICATIONS IN NSW (PART 1)

This article will form part of a sub-series in my caveat series dealing with extension of caveat applications in NSW.

In Part 1, we will consider the issue of time regarding making the application. In Parts 2 and 3 we will consider the application itself.

When faced with a lapsing notice in NSW, the caveator has 21 days from the day of service to bring an application to extend the caveat. Practitioners should note the methods of service under s 74N of the Real Property Act 1900 (NSW).

There are two issues that are usually the cause of the most grief regarding the issue of time.

A common, albeit unfortunate, mistake made by those unfamiliar to the area is to treat the 21-day period as being 21 business days instead of 21 days. Don’t fall into this trap.

Another common mistake is forgetting what is said in Practice Note SC Eq 8, which states that:

4. Any applications for extensions of Caveats that are to be made to the Duty Judge should be made no less than 5 days before the expiration of the Lapsing Notice in respect of the Caveat, unless exceptional circumstances exist. It is expected that parties will only apply for such extensions if it is impossible to reach an interim agreement to facilitate the substantive matter being heard promptly.

If one does bring an application within the last 5 days before the expiration of the relevant lapsing notice, one should turn their mind to adducing evidence addressing the delay.

The expectation of the Court is that parties who file a caveat should be prepared to defend the caveat at short notice.

Whether one is making the application by way of summons or notice of motion, one should also consider whether short service is required.

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