Caveats - how does someone remove a caveat (part 2)

In my previous post on this topic I discussed the formal requirements for seeking a Court order to remove a caveat from a title. In this post I have discussed below the considerations a Court has when faced with an application to remove a caveat from a title.

A proceeding to remove a caveat is brought under s90(3) TLA. s90(3) TLA provides ‘Any person who is adversely affected by any such caveat may bring proceedings in the Court against the caveator for the removal of the caveat and the Court may make such order as the Court thinks fit’.

The Supreme Court of Victoria recently spelt out the appropriate considerations for an application to remove caveat in the matter of Goldstraw v Goldstraw [2002] VSC 491 (Goldstraw). In that matter, Dodds-Streeton J gave a succinct summary of the law to be applied on an application to remove a caveat.

Dodds-Streeton J said that the estate or interest claimed in the caveat must be an 'interest in land' (at [23] to [24]):

23. It is a fundamental feature of a caveat under the Act that it must be supported by an estate or interest in land. The interest to be protected by the lodging of a caveat is a proprietary interest. This is enshrined in the terms of the legislation. Section 89(1) of the Act relevantly provides:

"Any person claiming any estate or interest in land under any unregistered instrument or dealing or by devolution in law or otherwise ... may lodge with the Registrar a caveat ... ".

24. That is, in order to support a caveat, an interest "must be an interest in respect of which equity would give specific relief against the land itself, either by way of requiring the provision of a registrable instrument or in some other way, for example, ordering a sale to enable a charge to be satisfied out of the proceeds".

In Goldstraw, the caveator claimed an estate in fee simple 'pursuant to a constructive trust arising out of a marital relationship between the caveator and the registered proprietor...'. Her Honour noted that a constructive trust can give rise to an interest in land, although the fact of marriage doesn't automatically give rise to a constructive trust over land (at [26] to [28]).

Dodds-Streeton J then set out the appropriate considerations for an application under s90(3). By way of summary, Her Honour said the following at [30]:

1. The procedure under s90(3) is in the nature of a summary procedure analogous to the determination of interlocutory injunctions.
2. The Court's power under s90(3) is discretionary.
3. The caveator bears the onus of establishing that there is a serious question to be tried that he or she does have the estate or interest in the land claimed.
4. In order to resist successfully the application for removal of a caveat the caveator's arguments must be directed towards the assertion of an interest in the subject land in the light of relevant principles of property and equity law.
5. If the caveator does establish a serious question to be tried in relation to the estate or interest claimed, the weight of authority indicates that the caveator must further establish that the balance of convenience favours the maintenance of the caveat until trial.

Dodds-Streeton J then considered the purpose of the procedure under s90(3), at [38]:

In my opinion, the only proper purposes for lodging a caveat against a registered proprietor's title under s.89(1) of the Act are to protect the estate or interest claimed by the operation of the statutory injunction against the registration of subsequent dealings and to provide notice of the existence of the estate or interest to those who consult the Register. A caveat has a significant potential to obstruct the rights, and to damage the interests, of the registered proprietor and other parties.

In Goldstraw Dodds-Streeton J considered that the caveator did not demonstrate that there was a serious question to be tried, and that the caveat was instead being used as a bargaining chip and not for a proper purpose (at [41] and [42]).

Warren CJ made similar observations in the matter of Schmidt v 28 Myola Street [2006] VSC 343 (Schmidt). In Schmidt, a plaintiff paid money to an officer of two trustee companies. The officer represented to the plaintiff that the money would go towards the purchase of two properties held by a unit trust. The officer misappropriated the plaintiff’s money and the companies said that the officer was not acting without authority. The plaintiff placed a caveat on the properties claiming a beneficial interest in the two properties as a holder of units in a unit trust.

At [32] Warren CJ said as follows:

Without being exhaustive, the proper exercise of the discretion under s 90(3) will involve considering: in which party’s favour the balance of convenience lies; whether there is a serious question to be tried; and whether the caveator claims an interest wider than what the caveator may be entitled. These questions inform the ultimate consideration, that is, whether the caveator has discharged his or her onus of justifying the maintenance of the caveat. The process is comparable to the exercise undertaken in granting or denying an interlocutory injunction. Such is the nature of this exercise, the problem highlighted above in Evindon is subsumed by the questions of whether there is a serious question to be tried and in which party’s favour the balance of convenience lies.

In Schmidt, Warren CJ held that the interest was a caveatable interest and the caveat should remain.


In considering what interests a caveat protects, Warren CJ cited at [15] the judgment of Hodgson J in Composite Buyers v Soong (1995) 38 NSWLR 286 (Soong). In Soong, the defendants executed an agreement in which the defendants guaranteed payment of money in respect of the provision of services. The agreement further provided that the defendants 'jointly and severally charge as beneficial owners all freehold and leasehold interests in land which we or any of us now have or during currency of this instrument may acquire with the whole of our obligations hereunder'.

At page 288, Hodgson J set out what His Honour considered to be an 'interest in land' under the equivalent NSW legislation:

In my opinion, what is necessary is that there be an interest in respect of which equity will give specific relief against the land itself, whether this relief be by way of requiring the provision of a registrable instrument, or in some other way giving satisfaction of the interest claimed by the caveator out of land itself, for example by ordering the sale of the land and payment out of the proceeds of an amount in respect of which the caveator has a charge.

In Soong, Hodgson J held that the instrument supported the caveat.

The matter I was recently involved in concerned a claim for the proceeds of sale of land. In Epple v Wilson [1972] VR 440 (a case which I relied upon in my submissions), Gowans J of the Supreme Court of Victoria was faced with a caveat where an employer claimed an interest in land arising from the proceeds of sale of land of an employee. Gowans J held that this was not an 'interest in land' as contemplated in s90(3) and held at p444 as follows:

In the present case, in my opinion, the contract or assurance or assignment evidenced by the document of 3 September is a conditional or contingent one. It is intended to take effect and only takes effect if there is and when there is a sale of the property effected by the signatory under which proceeds of the sale are left in the hands of some third party. It gives no right to require a sale. Unless there is a sale it does not operate on the fund. It is then that it operates on the proceeds. It is concerned with the money alone and not with the land. It is not concerned with an estate or interest in the land itself.

By way of summary, the authorities demonstrate that the evidence and submissions of the parties need to be directed to three broad issues:

1. Is the interest claimed in the caveat an 'interest in land'?
2. Is there a serious question to be tried that the caveator has the estate or interest in the land claimed?
3. If the caveator does establish the serious question to be tried in relation to the estate or interest claimed, does the balance of convenience favour the maintenance of the caveat until trial?

The caveator has the onus of proof on all of these issues.