(1) In this Part, except in so far as the context or subject-matter otherwise indicates or requires:dealing includes a plan (other than a delimitation plan).
delimitation plan has the meaning ascribed to that expression by section 28S (1).
registrable form:
(a) in relation to a dealing other than a plan, means that the dealing is in registrable form for the purposes of section 36, and(b) in relation to a plan, means that the plan is in a form in which it is immediately capable of being registered or recorded under the enactment providing for its registration or recording.(2) In this Part:(a) a reference to a legal or equitable estate in land includes a reference to a subsisting interest in land within the meaning of section 28A, and(b) a reference to recording a dealing in the Register shall, where the dealing is a plan, be construed as a reference to registering or recording the plan under the enactment providing for its registration or recording.(3) In this Part, a reference to a caveat lodged under section 74F includes a reference to a caveat which was lodged under section 28Y, 45H or 72 before the commencement of this Part but which has not ceased to be in force before that commencement.
Division 2 Caveats against primary applications
74B Lodgment of caveats against primary applications
(1) A person who claims a legal or equitable estate or interest in land that is the subject of a primary application, or in any part of any such land, may, at any time before a folio of the Register is created for that land or part under section 17 (2), lodge with the Registrar-General a caveat prohibiting the bringing of that land or part under the provisions of this Act.(2) A caveat lodged under subsection (1) must:(a) be in the approved form,(b) specify:(i) the name of the caveator,(ii) where the caveator is not a body corporate—the residential address of the caveator,(iii) where the caveator is a body corporate—the address of the registered office of the body corporate,(iv) the prescribed particulars of the estate or interest to which the caveator claims to be entitled,(v) where the caveat relates only to part of the land that is the subject of the primary application—such description of that part as will enable it to be identified, and(vi) an address in New South Wales at which notices may be served on the caveator,(c) be verified by statutory declaration, and(d) be signed by the caveator or by a solicitor or other agent of the caveator.(3) On the lodgment of a caveat under subsection (1), the Registrar-General shall give notice in writing of the lodgment of the caveat to the primary applicant in relation to whose application the caveat has been lodged.
74C Caveats lodged under section 74B to lapse under certain circumstances
(1) A caveat lodged under section 74B which has not ceased to have effect lapses on the expiry of 3 months after the date on which it was so lodged, unless, before the end of that period, the caveator:(a) has:(i) obtained from the Supreme Court an order extending the operation of the caveat for such further period as may be specified in the order or until the further order of that Court, and(ii) lodged with the Registrar-General the order or an office copy of the order, or(b) has taken proceedings in a court of competent jurisdiction to establish title to the estate or interest specified in the caveat and has:(i) where those proceedings have been determined in favour of the caveator—lodged with the Registrar-General the order or judgment setting out the determination of the court or an office copy of that order or judgment, or(ii) where those proceedings have not yet been determined—lodged with the Registrar-General a notice verified by statutory declaration, to that effect.(2) Where a notice referred to in subsection (1) (b) (ii) has been lodged with the Registrar-General and the proceedings to which the notice relates are finally determined otherwise than in favour of the caveator, the caveat to which the notice relates lapses when the order or judgment setting out the determination of the court, or an office copy of that order or judgment, is lodged with the Registrar-General.(3) Where a caveat lodged under section 74B remains in force, the primary applicant concerned may make an application in writing to the Registrar-General calling on the Registrar-General to prepare for service on the caveator a notice to the effect that, unless, within the period of 21 days after service of the notice, the caveator takes the action referred to in subsection (1) (a) or (b), the caveat will lapse.(4) On receipt of an application made under subsection (3), the Registrar-General shall, if satisfied that the caveat would not otherwise cease to have effect before it would lapse under subsection (5) if a notice were to be served as referred to in that subsection, prepare for service on the caveator a notice in the form sought by the primary applicant.(5) Where a notice prepared under subsection (4) has been served on the caveator, the caveat lapses on the expiry of 21 days after the date on which the notice was so served unless, before the end of that period of 21 days, the caveator has taken the action specified in subsection (1) (a) or (b) with respect to the land or, as the case may be, the estate or interest to which the caveat relates.
74D Caveator to have right to apply for an order extending the operation of the caveat
(1) Where a caveat lodged under section 74B remains in force, the caveator may, whether or not a notice has been served on the caveator as referred to in section 74C (5), make, in the manner prescribed by rules of Court, an application to the Supreme Court for an order extending the operation of the caveat.(2) Subject to subsection (3), on the hearing of an application made under subsection (1), the Supreme Court may, if satisfied that the caveator’s claim has or may have substance, make an order extending the operation of the caveat concerned for such period as is specified in the order or until the further order of that Court, but if that Court is not so satisfied, it shall dismiss the application.(3) Unless the Supreme Court has made an order dispensing with service, it may not hear an application made under subsection (1) unless it is satisfied that the primary applicant concerned has been served with a copy of the application before the hearing.(4) An order under subsection (2) may be made ex parte or otherwise.(5) When making an order under subsection (2), the Supreme Court may make such ancillary orders as it thinks fit.
74E Powers of Registrar-General where caveator fails to prosecute proceedings to establish title to estate or interest claimed in caveat
(1) Where a caveator has lodged with the Registrar-General a notice in accordance with section 74C (1) (b) (ii) to the effect that the caveator has taken proceedings as referred to in section 74C (1) (b), but those proceedings have not, within such period as appears to the Registrar-General to be reasonable in the circumstances, been continued to a stage that has resulted in a judgment or an order by the court in which the proceedings are pending, the Registrar-General may:(a) serve on the caveator, or(b) if service is for any reason not practicable—cause to be exhibited on the land affected by the caveat,a notice to the effect that, after the expiry of 1 month after the day on which the notice was so served or first exhibited, the caveat will lapse unless, before the end of that period:(c) an order of the Supreme Court extending the operation of the caveat,(d) an injunction granted by that Court restraining the Registrar-General from proceeding to bring under the provisions of this Act the land to which the caveat relates, or(e) an office copy of such an order or injunction,is lodged with the Registrar-General.(2) Where:(a) the Registrar-General has served or caused to be exhibited a notice under subsection (1), and(b) no order or injunction as referred to in that subsection, or office copy of such an order or injunction, is lodged with the Registrar-General before the expiry of 1 month after the day on which the notice was served or first exhibited,the caveat lapses at the end of that period.
Division 3 Caveats against dealings, possessory applications, plans and applications for cancellation of easements or extinguishment of restrictive covenants
74F Lodgment of caveats against dealings, possessory applications, plans and applications for cancellation of easements or extinguishment of restrictive covenants
(1) Any person who, by virtue of any unregistered dealing or by devolution of law or otherwise, claims to be entitled to a legal or equitable estate or interest in land under the provisions of this Act may lodge with the Registrar-General a caveat prohibiting the recording of any dealing affecting the estate or interest to which the person claims to be entitled.(2) Any registered proprietor of an estate or interest who, because of the loss of a relevant certificate of title or some other instrument relating to the estate or interest or for some other reason, fears an improper dealing with the estate or interest by another person may lodge with the Registrar-General a caveat prohibiting the recording of any dealing affecting the estate or interest.(3) Any person who claims to be entitled to a legal or equitable estate or interest in land that is or may become the subject of a possessory application may, at any time before such an application is granted, lodge with the Registrar-General a caveat prohibiting the Registrar-General from granting such an application.(4) Any person who claims to be entitled to a legal or equitable estate or interest in land that is the subject of a delimitation plan lodged in the office of the Registrar-General may, at any time before the plan is registered, lodge with the Registrar-General a caveat prohibiting the registration of the delimitation plan.(4A) Any person who claims to be entitled to any legal or equitable interest in an easement the recording of which is the subject of an application for cancellation under section 49 may, at any time before the application is granted, lodge with the Registrar-General a caveat prohibiting the Registrar-General from granting the application.(4B) Any of the following persons may lodge with the Registrar-General a caveat prohibiting the Registrar-General from granting an application to extinguish a restrictive covenant:(a) a person who has a registered interest in the land to which the benefit of the restrictive covenant is appurtenant,(b) a person who claims to be entitled to an equitable estate or interest in that land,(c) a person who is recorded in the Register as having the right to release, vary or modify the restrictive covenant,(d) a person who is recorded in the Register as a person whose consent is required to a release, variation or modification of the restrictive covenant.(4C) A caveat may be lodged under subsection (4B) whether or not the restrictive covenant is already the subject of an application for extinguishment under Part 8A. However, if such an application has been made and a notice in relation to the application has been given under section 81D then, to be effective, the caveat may only be lodged before the end of the period specified in the notice.(5) A caveat lodged under this section must:(a) be in the approved form,(b) specify:(i) the name of the caveator,(ii) where the caveator is not a body corporate—the residential address of the caveator,(iii) where the caveator is a body corporate—the address of the registered office of the body corporate,(iv) unless the Registrar-General dispenses with those particulars—the name and address of the registered proprietor concerned,(v) the prescribed particulars of the legal or equitable estate or interest, or the right arising out of a restrictive covenant, to which the caveator claims to be entitled,(vi) the current reference allocated by the Registrar-General to the folio of the Register, or, as the case may be, the lease, mortgage or charge, to which the caveat relates,(vii) where the caveat relates only to part of the land described in a folio of the Register or a current lease—a description of that part in the form or manner prescribed, and(viii) an address in New South Wales at which notices may be served on the caveator (and, if that address is a box at a document exchange, an alternative address in New South Wales that is not such a box),(c) be verified by statutory declaration, and(d) be signed by the caveator or by a solicitor or other agent of the caveator.(6) On the lodgment of a caveat under subsection (1), the Registrar-General must give notice in writing of the lodgment of the caveat to the registered proprietor of the estate or interest affected by the caveat by:(a) sending the notice by post to the address of the registered proprietor specified in the caveat, or(b) giving the notice in such other manner, whether by advertisement or otherwise, as the Registrar-General considers appropriate,unless the consent of the registered proprietor is endorsed on the caveat.(7) In subsection (6), a reference to the registered proprietor in relation to an estate or interest referred to in that subsection includes a reference to a person who claims to be entitled to such an estate or interest under a dealing lodged in the office of the Registrar-General for recording in the Register.(8) On the lodgment of a caveat under subsection (3), the Registrar-General shall, if a possessory application referred to in that subsection has been lodged in the office of the Registrar-General, give notice in writing of the lodgment of the caveat to the possessory applicant concerned.(9) On the lodgment of a caveat under subsection (4), the Registrar-General shall give notice in writing of the lodgment of the caveat to the registered proprietor of the estate or interest affected by the caveat.(10) On the lodgment of a caveat under subsection (4A) in relation to an easement, the Registrar-General must, if an application for cancellation of the recording of the easement has been lodged in the office of the Registrar-General, give notice in writing of the lodgment of the caveat to the applicant concerned.(11) On the lodgment of a caveat under subsection (4B) in relation to a restrictive covenant, the Registrar-General must, if an application for extinguishment of the restrictive covenant has been lodged in the office of the Registrar-General, or is later lodged, give notice in writing of the lodgment of the caveat to the applicant concerned.
74G Registrar-General to enter particulars of caveat lodged under section 74F in Register
For the purpose only of acknowledging the receipt of a caveat lodged under section 74F, the Registrar-General shall, if satisfied that the caveat complies with the requirements made in respect of it by and under this Act, record in the Register such particulars of the caveat as the Registrar-General considers appropriate.
74H Effect of caveat lodged under section 74F
(1) Subject to this section, while a caveat lodged under section 74F remains in force:(a) the Registrar-General must not, except with the written consent of the caveator:(i) record in the Register any dealing, or(ii) grant any possessory application, or(iii) register any delimitation plan, or(iv) cancel the recording of any easement, or(v) extinguish any restrictive covenant,if it appears to the Registrar-General that the recording of the dealing, the granting of the possessory application, the registration of the delimitation plan, the cancellation of the recording of the easement or the extinguishment of the restrictive covenant is prohibited by the caveat, and(b) the caveat does not have the effect of prohibiting:(i) the recording in the Register of a dealing, or(ii) the granting of a possessory application, or(iii) the registration of a delimitation plan, or(iv) the cancellation of the recording of an easement, or(v) the extinguishment of a restrictive covenant,except to the extent that the recording of such a dealing, the granting of such an application, the registration of such a plan, the cancellation of the recording of such an easement or the extinguishment of such a restrictive covenant would affect the estate, interest or right claimed in the caveat.(2) Where a caveat lodged under section 74F purports to protect a subsisting interest within the meaning of section 28A in land described in a qualified folio of the Register, the Registrar-General shall not cancel the caution recorded in that folio.(3) While a caveat lodged under section 74F prohibits the recording in the Register of a dealing relating to land described in a limited folio of the Register, the Registrar-General shall not register a delimitation plan which relates to that land.(4) Where, at the time when a caveat is lodged under section 74F to protect a particular legal or equitable estate or interest in land, a dealing which relates to the same land has been lodged for recording in the Register and is in registrable form, the caveat does not prohibit the recording in the Register of that dealing.(5) Except in so far as it otherwise specifies, a caveat lodged under section 74F to protect a particular legal or equitable estate or interest in land, or a particular right arising out of a restrictive covenant, does not prohibit the Registrar-General from recording in the Register with respect to the same land:(a) an application made under section 93 by an executor, administrator or trustee in respect of the estate or interest of a deceased registered proprietor,(b) an application under section 12 of the Trustee Act 1925 or an order of a court or dealing which, in the opinion of the Registrar-General, effects or evidences a replacement of existing trustees or the appointment of new or additional trustees,(c) an application under section 101,(d) a recording under section 46C,(e) a resumption application within the meaning of Part 5A,(f) a writ or the cancellation of the recording of a writ in accordance with section 105D,(g) in relation to a mortgage, charge or covenant charge recorded or lodged in registrable form before the lodgment of the caveat—a dealing effected by the mortgagee, chargee or covenant chargee in the exercise of a power of sale or other power or a right conferred by the mortgage, charge or covenant charge or by or under law,(h) in relation to a lease recorded or lodged in registrable form before the lodgment of the caveat—a dealing effected by the lessee pursuant to a right conferred by the lease or by or under law,(i) in relation to a mortgage, charge, covenant charge or lease to the recording of which the caveator has consented or in respect of the recording of which the caveat has lapsed—a dealing effected by the mortgagee, chargee, covenant chargee or lessee, including a dealing effected in the exercise of a power of sale or other power or right conferred by the mortgage, charge, covenant charge or lease or by or under law,(j) a vesting or dealing effected in accordance with:(i) an order of a court, or(ii) a provision of an enactment of this State or the Commonwealth,being an order or enactment which, expressly or by implication, requires or permits a recording to be made in the Register, notwithstanding that the caveat has not ceased to have effect,(k) except where the caveator claims to be entitled to a subsisting interest within the meaning of section 28A—the cancellation of a caution,(l) a change in, or a correction to, the name of a proprietor,(m) easements, profits à prendre, restrictions on the use of land or positive covenants created by section 88B (3) of the Conveyancing Act 1919,(m1) an easement created by a dealing if the caveat is noted on the folio for the land benefited by the easement,(m2) a positive covenant created pursuant to section 88BA of the Conveyancing Act 1919 for maintenance or repair, or maintenance and repair, of land that is the site of an easement or other land that is subject to the burden of the easement (or both),(n) an order, memorandum or other instrument pursuant to section 88D, 88E, 89 or 98 of the Conveyancing Act 1919,(o) a dealing varying, releasing or cancelling an easement, the abandonment of an easement or the effect of an instrument under section 88B of the Conveyancing Act 1919 releasing an easement, if the caveat is noted on the folio for the land burdened by the easement,(p) a dealing releasing or varying a covenant referred to in paragraph (m2),(q) a notation or an application for notation of the existence of a cross-easement for party walls created by the operation of section 88BB or 181B of the Conveyancing Act 1919,(r) a dealing releasing, extinguishing or varying a restriction on the use of land,(s) a change in the address of a body corporate,(t) an application under section 74I (1) or (2), 74J (1) or 74JA (2) for the preparation of a lapsing notice,(u) an application for the issue of:(i) a consolidated certificate of title, or(ii) separate certificates of title where there is more than one registered proprietor for land or for an estate or interest in land,(v) an application under section 12 or 136 for the exercise of the Registrar-General’s power to compel the production of a certificate of title or other instrument,(w) an application under section 135B for the determination of a boundary by the Registrar-General,(x) a dealing by one or more joint tenants the sole purpose of which is to effect a severance of a joint tenancy,(y) a dealing by a lessor or sub-lessor recording the determination of a lease or sublease if the caveat is not recorded against the lease or sublease that is the subject of the determination, or(z) a dealing recording the bankruptcy of a registered proprietor.(6) Where particular land is affected by a caveat lodged under section 74F and a dealing relating to that land is subsequently lodged for recording in the Register, the Registrar-General may record the dealing notwithstanding the existence of the caveat if satisfied that the estate or interest to which the caveator claims to be entitled would, on the dealing being recorded, vest in the caveator.(7) Whenever a dealing is recorded pursuant to subsection (6), the Registrar-General must record in the Register that the caveat concerned has lapsed.
74I Lapse of caveat where dealing etc subsequently lodged for recording
(1) Whenever:(a) a dealing or delimitation plan is lodged with the Registrar-General for recording or registration, and(b) the recording of the dealing or, as the case may be, the registration of the plan is prohibited by a caveat that has been lodged under section 74F,the Registrar-General shall, on an application being made in the approved form by the registered proprietor or by any person who is or claims to be entitled to an estate or interest in the land to which the dealing or plan relates, prepare for service on the caveator a notice to the effect that the dealing or plan has been lodged for recording or registration and that, unless, before the expiry of 21 days after the date of service of the notice, the caveator has:(c) obtained from the Supreme Court an order extending the operation of the caveat for such further period as is specified in the order or until the further order of that Court, and(d) lodged with the Registrar-General the order or an office copy of the order,the caveat will (subject to evidence of due service of the notice on the caveator) lapse in accordance with subsection (5) and the dealing or plan will be recorded or registered.(2) Whenever a possessory application has been made to the Registrar-General and a caveat prohibiting the granting of such an application has, either before or after the making of the possessory application, been lodged under section 74F, the Registrar-General shall, on an application being made in the approved form by the possessory applicant, prepare for service on the caveator a notice to the effect that the possessory application has been made and that, unless, before the expiry of 21 days after the date on which the notice is served, the caveator has:(a) obtained from the Supreme Court an order extending the operation of the caveat for such further period as is specified in the order or until the further order of that Court, and(b) lodged with the Registrar-General the order or an office copy of the order,the caveat will (subject to evidence of due service of the notice on the caveator) lapse in accordance with subsection (5) and the possessory application may be granted.(3) The applicant must, within 4 weeks after the issue of the notice, lodge with the Registrar-General, in the form of a statutory declaration or such other form as the Registrar-General may accept, evidence of the due service of the notice on the caveator.(4) If the applicant does not comply with subsection (3), the Registrar-General:(a) may refuse to take any further action in connection with the notice prepared under subsection (1) or (2) (as relevant), or(b) may serve on the applicant a notice allowing a further 4 weeks from the date of service of that notice for lodgment of the evidence and, if the evidence is not lodged within the further period, may refuse to take any further action in connection with the notice prepared under subsection (1) or (2) (as relevant).(5) If:(a) the evidence required by subsection (3) is lodged within the time permitted by this section, and(b) the caveator has not lodged with the Registrar-General the order or office copy of the order referred to in subsection (1) or (2) (as the case may require) in accordance with the relevant subsection,the Registrar-General is to make a recording in the Register to the effect that the caveat has, to the extent that it would prohibit the recording of the dealing or the registration of the delimitation plan, or the granting of the possessory application, lapsed, and the caveat so lapses on the making of that recording.
74J Lapse of caveat on application of proprietor of estate or interest
(1) Where a caveat lodged under section 74F remains in force, the Registrar-General shall, on an application being made in the approved form by the registered proprietor of an estate or interest in the land described in the caveat, prepare for service on the caveator a notice to the effect that, unless the caveator has, before the expiry of 21 days after the date of service of the notice:(a) obtained from the Supreme Court an order extending the operation of the caveat for such further period as is specified in the order or until the further order of that Court, and(b) lodged with the Registrar-General the order or an office copy of the order,the caveat will (subject to evidence of due service of the notice on the caveator) lapse in accordance with subsection (4).(2) The applicant must, within 4 weeks after the issue of the notice, lodge with the Registrar-General, in the form of a statutory declaration or such other form as the Registrar-General may accept, evidence of the due service of the notice on the caveator.(3) If the applicant does not comply with subsection (2), the Registrar-General:(a) may refuse to take any further action in connection with the notice prepared under subsection (1), or(b) may serve on the applicant a notice allowing a further 4 weeks from the date of service of that notice for lodgment of the evidence and, if the evidence is not lodged within the further period, may refuse to take any further action in connection with the notice prepared under subsection (1).(4) If:(a) the evidence required by subsection (2) is lodged within the time permitted by this section, and(b) the caveator has not lodged with the Registrar-General the order or office copy of the order referred to in subsection (1) in accordance with that subsection,the Registrar-General is to make a recording in the Register to the effect that the caveat has lapsed, and the caveat so lapses on the making of that recording.
74JA Lapse of caveat regarding extinguishment of restrictive covenant
(1) This section applies if:(a) an application has been made to the Registrar-General under Part 8A to extinguish a restrictive covenant, and(b) a caveat prohibiting the granting of such an application has been lodged under section 74F (4B) within the time required by section 74F (4C).(2) The person who made the application for extinguishment may apply to the Registrar-General, in the approved form, for the Registrar-General to prepare for service a notice under this section.(3) If the person makes an application under this section for preparation of a notice, the Registrar-General must prepare for service on the caveator a notice to the effect that the application for lapsing has been made and that unless, before the expiry of 21 days after the date on which the notice is served, the caveator has:(a) obtained from the Supreme Court an order extending the operation of the caveat for such further period as is specified in the order or until the further order of that Court, and(b) lodged with the Registrar-General the order or an office copy of the order,the caveat will (subject to evidence of due service of the notice on the caveator) lapse in accordance with subsection (6) and the restrictive covenant will be extinguished.(4) The applicant must, within 4 weeks after the issue of the notice, lodge with the Registrar-General, in the form of a statutory declaration or such other form as the Registrar-General may accept, evidence of the due service of the notice on the caveator.(5) If the applicant does not comply with subsection (4), the Registrar-General:(a) may refuse to take any further action in connection with the notice prepared under subsection (3), or(b) may serve on the applicant a notice allowing a further 4 weeks from the date of service of that notice for lodgment of the evidence and, if the evidence is not lodged within the further period, may refuse to take any further action in connection with the notice prepared under subsection (3).(6) If:(a) the evidence required by subsection (4) is lodged within the time permitted by this section, and(b) the caveator has not lodged with the Registrar-General the order or office copy of the order referred to in subsection (3) in accordance with that subsection,the Registrar-General is to make a recording in the Register to the effect that the caveat has, to the extent that it would prohibit the extinguishment of the restrictive covenant concerned, lapsed, and the caveat so lapses on the making of that recording.
74K Power of Supreme Court to extend operation of a caveat lodged under section 74F
(1) Where a caveator is served with a notice prepared under section 74I (1) or (2), 74J (1) or 74JA (3), the caveator may prepare, in the manner prescribed by rules of Court, an application to the Supreme Court for an order extending the operation of the caveat.(2) Subject to subsection (3), on the hearing of an application made under subsection (1), the Supreme Court may, if satisfied that the caveator’s claim has or may have substance, make an order extending the operation of the caveat concerned for such period as is specified in the order or until the further order of that Court, or may make such other orders as it thinks fit, but, if that Court is not so satisfied, it shall dismiss the application.(3) Unless the Supreme Court has made an order dispensing with service, it may not hear an application made under subsection (1) unless it is satisfied that all interested parties disclosed by the notice which gave rise to the application have been served with copies of the application before the hearing.(4) An order under subsection (2) may be made ex parte or otherwise.(5) When making an order under subsection (2), the Supreme Court may make such ancillary orders as it thinks fit.(6) For the purposes of this section, a caveator served with a notice under section 74JA (3) (in relation to a restrictive covenant) is taken to have a claim that has substance if the caveator:(a) has a registered interest, or has or may have an equitable estate or interest, in land to which the benefit of the restrictive covenant is appurtenant, or(b) is recorded in the Register as having the right to release, vary or modify the restrictive covenant, or as being a person whose consent is required to a release, variation or modification of the restrictive covenant, and should have been so recorded.
Note. Section 36 (6AA) provides that a caveat that is uplifted after it is lodged with the Registrar-General is ineffective until it is relodged with the Registrar-General.
74L Strict compliance with formalities with respect to caveats not necessary
If in any legal proceedings a question arises as to the validity of a caveat lodged under a provision of this Part, the court shall disregard any failure of the caveator to comply strictly with the requirements of this Part, and of any regulations made for the purposes of this Part, with respect to the form of the caveat.
74LA Caveat lapses when order ceases to have effect
(1) If the operation of a caveat is extended for a specified period by an order of the Supreme Court under this Part and no further order is made by the Court extending the operation of the caveat before the expiration of the period specified in the order, the caveat lapses on the expiration of that period.(2) If the operation of a caveat is extended until the further order of the Court by an order of the Supreme Court under this Part, the caveat lapses if the Registrar-General, on being satisfied that the proceedings in which the order was obtained have been finalised and that no further order is likely to be sought, makes a recording in the Register to the effect that the caveat has lapsed.
(1) A caveat lodged under a provision of this Part may be withdrawn:(a) by the caveator,(b) by the authorised agent of the caveator,(c) where the caveator is a natural person who has died—by the legal personal representative or trustee of the caveator’s estate,(d) where 2 or more caveators claim to be entitled as joint tenants to the estate or interest protected by the caveat and one or more (but not all) of them has died—by the surviving caveator or caveators,(e) where, after a company has been dissolved or deregistered, the estate or interest claimed by the caveator has become vested in the Australian Securities and Investments Commission by force of section 588 or 601AD of the Corporations Act 2001 of the Commonwealth—by the Australian Securities and Investments Commission,(f) where the estate or interest claimed by the caveator has become vested in a trustee, The Official Receiver in Bankruptcy or any other person under or by virtue of a provision of any Act or any Act of the Commonwealth relating to bankruptcy—by the trustee, The Official Receiver in Bankruptcy or that other person, as the case may be,(g) where the caveator is a protected person within the meaning of the Protected Estates Act 1983—by the person appointed as manager of the person’s estate or the Protective Commissioner, as the case requires, or(h) in any other prescribed case—by the person, or a person belonging to the class of persons, prescribed in relation to that case.(2) If:(a) a caveat lodged under section 74F prohibits the granting of a possessory application, the registration of a delimitation plan or the grant of an application to extinguish a restrictive covenant, and(b) the caveator has consented to the granting of the possessory application, the registration of the delimitation plan or the extinguishment of the restrictive covenant,the caveat is taken to have been withdrawn.
74MA Application to Court for withdrawal of caveat
(1) Any person who is or claims to be entitled to an estate or interest in the land described in a caveat lodged under section 74B or 74F may apply to the Supreme Court for an order that the caveat be withdrawn by the caveator or another person who by virtue of section 74M is authorised to withdraw the caveat.(2) After being satisfied that a copy of the application has been served on the person who would be required to withdraw the caveat if the order sought were made or after having made an order dispensing with service, the Supreme Court may:(a) order the caveator or another person, who by virtue of section 74M is authorised to withdraw the caveat to which the proceedings relate, to withdraw the caveat within a specified time, and(b) make such other or further orders as it thinks fit.(3) If an order for the withdrawal of a caveat is made under subsection (2) and a withdrawal of the caveat is not, within the time limited by the order, lodged with the Registrar-General, the caveat lapses when an office copy of the order is lodged with the Registrar-General after that time expires.
74N Service of notices on caveators for purposes of Part
(1) Where under this Part provision is made for the service on the caveator of a notice relating to a caveat lodged under a provision of this Part, or to any proceedings in respect of such a caveat, the notice is duly served if it is served in one of the following ways:(a) the notice is served on the caveator personally,(b) the notice is left at or sent by registered post to:(i) the address specified in the caveat under section 74B (2) (b) or 74F (5) (b), or(ii) where an address has been notified to the Registrar-General in respect of the caveat under subsection (3)—that address or, if more than one address has been notified in respect of the caveat under that subsection, the last of the addresses so notified,(c) if the caveat was signed on behalf of the caveator by an agent other than a solicitor or licensed conveyancer—the notice is left at or sent by registered post to the business or residential address of that agent,(d) if the caveat was signed on behalf of the caveator by a solicitor or licensed conveyancer—the notice is left at or sent by registered post to the office of the solicitor or licensed conveyancer or, if the solicitor or licensed conveyancer maintains a box at a document exchange established in New South Wales by a prescribed person, deposited in that box or left at another such exchange for transmission to the first-mentioned exchange for depositing in that box,(e) the notice is served in such other manner, whether by advertisement or otherwise, as the Registrar-General directs in writing,(f) the notice is served in such other manner as the Supreme Court, on application being made to it, directs.(2) Where a notice is deposited in a box referred to in subsection (1) (d), or left at a document exchange so referred to for transmission to another such exchange for depositing in such a box, service of the notice shall be deemed to be effected 2 days after the day on which the notice is so deposited or left.(3) Where a person entitled to withdraw a caveat lodged under a provision of this Part notifies the Registrar-General, by lodging a notice in the approved form, that the name of the caveator or the address for service of notice on the caveator has been changed from the name or address specified in the caveat, the Registrar-General shall record in the Register the name or address so notified and thereupon the name or address so recorded shall be the name or address for the service of notices on the caveator.(4) To avoid doubt, section 77 of the Interpretation Act 1987 does not apply to this section.
74O Restrictions on lodgment of further caveats if earlier caveat lapses or is withdrawn
(1) This section applies if a caveat lodged under a provision of this Part in respect of any particular estate or interest in land or any particular right arising out of a restrictive covenant:(a) subsequently lapses, or(b) is, after an application is lodged with the Registrar-General for the preparation of a notice under section 74C (3), 74I (1) or (2), 74J (1) or 74JA (3), withdrawn under another provision of this Part, or(c) is withdrawn or lapses under section 74MA,and the same caveator lodges a further caveat with the Registrar-General in respect of the same estate, interest or right and purporting to be based on the same facts as the first caveat.(2) A further caveat to which this section refers has no effect unless:(a) the Supreme Court has made an order giving leave for the lodgment of the further caveat and the order or an office copy of the order accompanies the further caveat when it is lodged with the Registrar-General, or(b) the further caveat is endorsed with the consent of the primary applicant or possessory applicant for, or the registered proprietor of, the estate or interest affected by the further caveat.
74P Compensation payable in certain cases
(1) Any person who, without reasonable cause:(a) lodges a caveat with the Registrar-General under a provision of this Part,(b) procures the lapsing of such a caveat, or(c) being the caveator, refuses or fails to withdraw such a caveat after being requested to do so,is liable to pay to any person who sustains pecuniary loss that is attributable to an act, refusal or failure referred to in paragraph (a), (b) or (c) compensation with respect to that loss.(2) Compensation referred to in subsection (1) is recoverable in proceedings taken in a court of competent jurisdiction by the person who claims to have sustained the pecuniary loss.(3) A person who is a caveator is not entitled to bring proceedings under subsection (1) (b) if that person, having had an opportunity to do so, has failed to take all reasonable steps to prevent the caveat from lapsing.
74Q Registrar-General not obliged to ensure that caveator is entitled to the subsisting estate or interest claimed in a caveat
Except to the extent of ensuring that a caveat lodged under a provision of this Part apparently complies on its face with the requirements of this Part and with the requirements of any regulations made for the purposes of this Part, the Registrar-General is not required to be satisfied that the caveator is in fact entitled to the estate or interest claimed in the caveat or otherwise as to the validity of the caveat.
74R Right to obtain injunction not affected
In relation to a caveat lodged under a provision of this Part, nothing in this Part shall be construed as preventing or restricting the caveator from applying for and obtaining from the Supreme Court an injunction for the purpose of:(a) where the caveat relates to land that is the subject of a primary application—restraining the Registrar-General from bringing the land under the provisions of this Act,(b) where the caveat relates to the recording of dealings—restraining the Registrar-General from recording a dealing the recording of which is prohibited by the caveat,(c) where the caveat relates to a possessory application—restraining the granting of the possessory application,(d) where the caveat relates to a delimitation plan—restraining the Registrar-General from registering the delimitation plan, or(e) where the caveat relates to an application for the cancellation of the recording of an easement—restraining the cancellation of the recording of the easement, or(f) where the caveat relates to an application for the extinguishment of a restrictive covenant—restraining the extinguishment of the restrictive covenant.