Compensation for improper caveat[1]

Pursuant to s 130(1) of the Land Title Act 1994, a person who lodges or continues a caveat without reasonable cause must compensate anyone else who suffers loss or damage as a result. Section 130(2) of the Land Title Act 1994 specifically provides that a court of competent jurisdiction, when determining the compensation in such a proceeding, may include a component for exemplary damages. It is presumed that a caveat has been lodged or continued without reasonable cause until the person who lodged or continued it proves that there was reasonable cause (s 130(3) of the Land Title Act 1994).[2]

This is because it might be proved later that the caveat is unmeritorious and the other party suffered financial loss because of the caveat.[3] There are two main ways by which a registered owner can remove the caveat: removal by application to the Registrar General and removal by order of the Supreme Court. Therefore, if the registered owner contests the caveat, the caveator must be prepared to incur legal expenses to defend his interest on the property. The removal of the caveat that is found to be lodged without merit may result also to compensation of legal costs incurred by the registered owner. Furthermore, if a party fails to prove his interest in the property he is forever precluded from lodging a caveat on the same property.

The party who is considering lodging a caveat must first seek legal advice. The need to protect one’s interest on a property must be balanced with the danger of being ordered to pay damages as a consequence of filling an unmeritorious caveat.

 

List of Sources:

  1. Land Title Act 1994 (QLD) – current as at 1 December 2014 – revised version-Queensland legislation.
  2. Secondary Resource: - accessed on 1st August 2016
  3. http://www.onerfamilylaw.com.au/Sites/2251/Images%20Files/FLNA%20caveat%20article.pdf>
  4. Secondary Resource: Aussie Divorce Est. 2005 - accessed on 1st August 2016
  5. http://www.aussiedivorce.com.au/familylawinformation/lodging-a-caveat-on-matrimonial-real-property.html>
  6. Land Title Practice Manual  - Department of Natural Resources and Mines – accessed on 1st August 2016

<https://www.dnrm.qld.gov.au/__data/assets/pdf_file/0003/97149/ltpm-part-11.pdf >

 

Case Law Persons Who May Lodge a Caveat

A Person Claiming an Interest in a Lot

• Friedmann v Barrett; ex parte Barrett [1962] Qd R 498.

• Andel Pty Ltd v Century Car Care Pty Ltd [1989] Q Conv R 54-315.

• Ex parte Lord [1985] 2 Qd R 198. • Re Cross and National Australia Bank Limited [1992] Q Conv R 54-433.

• Re Trapas Pty Ltd [1991] Q Conv R 54-398.

• Simons v David Benge Motors Pty Ltd [1974] VR 585.

• Ex parte Goodlet and Smith Investments Pty Ltd [1983] 2 Qd R 792.

• Re Rutherford [1977] 1 NZLR 504.

• Re Pile’s Caveats [1981] Qd R 81.

• Costa & Duppe Properties Pty Ltd v Duppe and Ors [1986] VR 90.

• Connell v Bond Corporation Pty Ltd [1992] 8 WAR 352.

• Re Bosca Land Pty Ltd’s Caveat [1976] Qd R 19.

• Re C M Group Pty Ltd’s Caveat [1986] 1 Qd R 381.

• Re Dimbury Pty Ltd’s Caveat [1986] 2 Qd R 348.

• Nicholson v Fowler [1981] NSWLR 97. • Jessica Holdings Pty Ltd v Anglican Property Trust Diocese of Sydney [1992] NSW Conv R 55-626.

• Re Henderson’s Caveat [1993] Q Conv R 54-450.

• Re Bluestone Pty Ltd’s Caveat [1993] Q ConvR 54-447.

• Butt, P, ‘Purchaser under Conditional Contract has Caveatable Interest’ (1993) 67 ALJ 295.

 

Proceedings in the Supreme Court

• Re Jorss’ Caveat [1982] Qd R 458.

• Burman and Anor v AGC (Advances) Limited [1994] 1 Qd R 123.

 

Lapsing of Caveat 2Consent of Registered Owner

• Circuit Finance Australia Ltd v Registrar of Titles [2005] QSC 283.

• Caveat No. G496816 by AVCO Financial Services Ltd, Supreme Court of Queensland, (unreported) Connolly J, OS No 757 of 1981.

• Queensland Estates Pty Ltd v Collas [1971] Qd R 75.

 

Fees

Fees payable to the land registries are subject to an annual review. See the current:

• Land Title Regulation 2005 – Schedule 2, item numbers 2(h), 2(m) and 7;

• Land Regulation 2009 – Schedule 11, item numbers 2(e), 2(f) and 16; and

• Water Regulation 2002 – Schedule 16, item numbers 11, 15 and 18.

                                                                                                     


[2] Land Title Practice Manual - Department of Natural Resources and Mines – accessed on 1st August 2016 – <https://www.dnrm.qld.gov.au/__data/assets/pdf_file/0003/97149/ltpm-part-11.pdf>.

[3] Aussie Divorce. When parties Divorce or Separate they would always have to divide their assets.  Accessed on 1st August, 2016. <http://www.aussiedivorce.com.au/familylawinformation/lodging-a-caveat-on-matrimonial-real-property.html>.

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