Remove or Extend A Caveat

In order to protect your interest in land you may need to lodge a caveat / extend it to prevent dealings that may affect that interest. Alternatively, if you are the registered proprietor and someone has lodged a caveat without having a proper interest you may need to approach the court to seek the removal of that caveat.

If you need legal help to extend the operation of a caveat or need help facilitating the withdrawal of a caveat (a.k.a remove the caveat) on property then that is ordinarily done by Summons filed in the Supreme Court with an affidavit in support (assuming negotiation for it to be withdrawn and lapsing notices will not help). As caveats are a form of statutory injunction that restrains dealings in respect of the land affected it is quite likely that you will need assistance from a lawyer if alternative dispute resolution has not worked.

Potential Scenarios - Remove, Withdraw or Extend a Caveat

  • You are the registered proprietor of land, and someone lodged a caveat claiming they contributed to the price of the property and that they have a caveatable interest so that you seek to have the caveat removed to facilitate a sale;
  • You have purchased land, pursuant to a contract for the sale of land, that has not yet been registered and you need to apply for an extension of a caveat to protect your interest;
  • You have been given an option to purchase land, lodged a caveat and need to apply for an extension of the caveat;
  • A judgement creditor has "jumped out of the woodwork" arguing it has a caveatable interest and you need to have the caveat removed because there is in fact no proprietary interest;
  • You are a developer and someone has asserted an interest in a prospective lot that forms part of a subdivision;
  • The licensee of premises believes it has a caveatable interest and you consider otherwise;
  • A beneficiary under a discretionary trust asserts that a caveat can be maintained over trust property and you disagree;
  • Someone has asserted s/he is entitled to have a caveat over your property when they do not have that entitlement and you have suffered financial loss.

Important Quotes in Disputes about Caveat Withdrawal

Purpose of Caveats

"Its purpose is to act as an injunction to the Registrar-General to prevent registration of dealings with the land until notice has been given to the caveator. This enables the caveator to pursue such remedies as he may have against the person lodging the dealing for registration." - J & H Just (Holdings) Pty Ltd v Bank of New South Wales [1971] HCA 57

Removal of Caveats

"[19] Section [74MA of the Real Property Act] enables any person who is or claims to be entitled to an estate or interest in the land described in a caveat to apply to the Supreme Court for an order that the caveat be withdrawn.

[20] The primary judge correctly proceeded on the basis that on an application for an order to remove a caveat it is not necessary for the court to make a final determination as to the interest claimed by the caveator, or a final determination as to the priority that the caveator may or may not have over competing interests. Rather, the court should enquire whether the caveator would have been granted an interlocutory injunction to protect the interest that the caveator claimed in the caveat. If no such interlocutory injunction would have been granted, the caveat should be ordered to be withdrawn: Martyn v Glennan [1979] 2 NSWLR 234 at 239; Kerabee Park Pty Ltd v Daley [1978] 2 NSWLR 222; Gay v Gooden (1989) NSW ConvR ΒΆ55-445. Under currently applied principles, an interlocutory injunction is granted if the court is satisfied that there is a serious question to be tried, and that the balance of convenience favours the granting of an interlocutory injunction: Murphy v Lush (1986) 65 ALR 651 at 652; Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1 at 24. Those principles have not been challenged on the present application." - Bayblu Holdings Pty Ltd v Capital Finance Australia Limited [2011] NSWCA 39

Let Us Help You

  • Determine if the caveator has a caveatable interest;
  • Assess whether the caveator has provided the required particulars of the estate or interest claimed;
  • Apply for the extension of a caveat (assuming you have a relevant interest);
  • Apply for the removal of a caveat when the caveator does not hold a caveatable interest;
  • Seek damages against someone who lodge a caveat without there being proper grounds for doing so.

For more information read removing or extending caveats.

* Note: we do not prepare caveats or lapsing notices we only act on contested applications for their extension or removal.

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* Disclaimer:- This publication contains general information which may not suit your particular needs or circumstances. It may be summarised and include generalisations. Details that may be important in your specific circumstances might not be included. Litigant strives to ensure that the information in this publication is accurate and up-to-date, but does not represent or guarantee that it is accurate, reliable, current, complete or suitable. You should independently evaluate and verify the accuracy, reliability, currency, completeness and suitability of the information, before you rely on it. The information in this publication is not legal or other professional advice. You should obtain independent legal or professional advice that is tailored to your particular circumstances if you have concerns. To the maximum extent permitted by law, Litigant excludes liability for any loss, however caused (including by negligence), relating to or arising directly or indirectly from using or relying on any content in this publication. Litigant asserts copyright over the content of this publication.