3015LAW Lecture Notes - Lecture 6: Unic, Fee Simple, Consideration
1. CAVETS AND REMEDIES
Nature and purpose of caveat
oAs an interim measure to allow an unregistered interest to become registered. In
these circumstances a court would remove the caveat unless the caveator is
willing to give effect to registration.
oLodgement of a caveat is designed to freeze the relative positions pending
litigation. This means that a caveat would be removed if litigation did not
proceed (freeze registrar so parties can resolve dispute)
oLodgement of the caveat is a mechanism designed to prevent the RP from
dealing with land in a manner inconsistent with the rights of the caveator.
Caveator = party benefiting from caveat – preserve status quo
Lodgement and removal of caveat
Land Title Act
SECTION DETAILS
S 121 Formalities
2) signature;
3) interest claimed by caveator must be identified; and
4) grounds on which interest is claimed.
Agent can lodge on behalf of principle
S 123 Once lodged, Registrar obligation to advise all affected parties (written)
S 125 Removal of caveat = caveator may withdraw
S 126 Removal of caveat = automatic lapse after 90 days (where not lodged by RP
or lodged without consent of RP) (non lapsing)
s 127 Removal of caveat = caveatee obtains order from Supreme Court for
removal of caveat
Written notice = creates possibility of party going to court
S 128 Removal of caveat = cancelled by registrar
S 122(1)(a) A caveat may be lodged, inter alia, by ‘a person claiming an interest in the
lot’
- Possibility of bringing injunction in equity to restrain = option possible
- But prefer caveat as it is quicker and more cost effective – lodge caveat
- Cost of caveat goes up depending on the situation – more effected parties then more
cost
- Highly inconvenient for affected parties as they cant use it the way they wish
- With consent = nonlapsing caveat
Caveatable interest
- Interest = ‘(a) a legal or equitable estate in the land; or (b) a right, power or privilege
over, or in relation to, land’: s 36 Acts Interpretation Act 1954 (Qld). (no definition in title
act)
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o(b) extends range – mortgages and leases
- Must have good grounds – otherwise might be liable to claim for compensation
- Genuine belief they have caveat interest
Is interest of purchaser unde conditional contract of sale a caveatable interest?
- NO
oBuilding land interest purely for purpose of building land
- YES
oDefinition of interest wide enough to include conditional purchaser
oOption over land
oMortgagees
Re Henderson
Confirms an interest under conditional contract of sale can be caveabtable
Will for henderson who died, with large portion of land not subdivded, went into contract
with some other people for the 2 arces for henderson, executor of will sold subject to the 2
acres. Sale considered the interest of henderson but the reservation was not registered.
Was solde to someone else but did not know about the reservation and she went to do
caveat so they could stop sale. Original contract that reserved her 2 acres was subject to
council accepted subdivision of land.
HELD whether purchaser under conditional contract cavaetable interest. Unconditional only
differed by condition so they should be able to protect their interest by lodgement of caveat
Mere equity?
5) divided judicial opinion in Queensland on whether such an interest caveatable, with
more recent authority suggesting is caveatable:
o Re Pile’s Caveats and Re McKean’s Caveat = NO
o Re Andel and Mijo Developments Pty Ltd v Royal Agnes Waters Pty Ltd = YES
6) Uncertainty around the status. Whether mere equity can be protected by caveat.
7) Mere equity not proprietary interest, so cant support caveat = re piles caveats
8) ESTABLISHES THAT MERE EQUITY ENOUGH GROUND TO LODGE CAVEAT
9) Migo developments = interstate dispute, caveatable interest, better interpretation of
interest was that provided by s 36 which could include mere equity. MERE EQUITY =
CAVETABLE
Re McKean’s Caveat
right to set aside transaction based on fraud. Court assumed that right amounts to
proprietary equitable interest. Therefore caveatable interest
Re Andel
application by mckean and bank to have caveat removed from registrar. Andel lodged
caveat august 1988, right claimed back to it frauded out of, fraud by third party, tripplink,
they claimed land by fraud. Mckean and bank had right to possession. Tripplink = RP in
1987, mckean had contracted with tripplink to purchase land and bank had mortgage over
land. Mr mckean settled in 1988, niether mckean or bank registered their interests. Andel
registered caveat. Then proceeedings to remove. Argued that andels right based on fraud
was mere equity only, not ground to grant caveat.
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find more resources at oneclass.com
Document Summary
Nature and purpose of caveat: as an interim measure to allow an unregistered interest to become registered. In these circumstances a court would remove the caveat unless the caveator is willing to give effect to registration: lodgement of a caveat is designed to freeze the relative positions pending litigation. Caveator = party benefiting from caveat preserve status quo. 3: grounds on which interest is claimed. interest claimed by caveator must be identified; and. Once lodged, registrar obligation to advise all affected parties (written) Removal of caveat = automatic lapse after 90 days (where not lodged by rp or lodged without consent of rp) (non lapsing) Removal of caveat = caveatee obtains order from supreme court for removal of caveat. Written notice = creates possibility of party going to court. S 122(1)(a) a caveat may be lodged, inter alia, by a person claiming an interest in the lot". Possibility of bringing injunction in equity to restrain = option possible.
