21 October 2019


International Cases

Meiners -V- Gunn

Australia

23.04.2018

Civil

A caveatable interest must be a proprietary interest in land

The Plaintiff seeks an order pursuant to Section 138C(1) of the Transfer of Land Act, 1893 extending the operation of caveat lodged on 29th September, 2017 and registered against the title of the Yokine property. The first defendant (Ms Gunn) is the registered proprietor of the Yokine property. The caveat was initially lodged on 28th September, 2017. The counsel for the Plaintiff submitted that, the interest claimed is as equitable co-owner. The Plaintiff is a beneficial co-owner of the Property, or that he has an equitable charge.

A caveat may be lodged by a person claiming an estate or interest in land. By its nature, a caveatable interest must be a proprietary interest in land. A registered proprietor may require the registrar of titles (registrar) to serve a caveator with notice to the effect that, unless the caveator obtains an order of the Supreme Court extending the caveat within 21 days of service of the notice, the caveat will lapse.

The Court's power to make an order extending the operation of the caveat arises where the Court is satisfied that, the caveator's claim 'has or may have substance'. Because that threshold test does not require a caveator to finally establish the existence of its claim on the hearing of an application for an extension of time, it is not necessary or appropriate to resolve conflicts of evidence on affidavits filed in the application.

On an application for an extension of caveat, the onus lies on the caveator to demonstrate that, there is a serious question to be tried as to the existence of a caveatable interest. Where an arguable case as to the existence of a caveatable interest has been demonstrated, it will be unusual to order removal of the caveat. On an application for an extension of caveat, there is limited power to allow the terms of the caveat to be amended. An amendment is not permitted to alter the interest which is claimed and to claim a different interest. An amendment may be permitted so as to enable the caveat to express better and more fully the interest which is claimed in the caveat. In the context of an application to extend a caveat, the court may decline to extend its operation, but instead impose an injunction maintaining the status quo between the parties.

The nature of the interest claimed by the caveator is as equitable co-owner, to the extent of her contribution in the sum of $130,000 to the purchase of the above land described, as detailed in her statutory declaration of 10th October, 2017. The caveat requires amendment in respect to Note 7 so that, it forbids registration of any instrument affecting the estate or interest of the Plaintiff unless subject to the Plaintiff's interest, rather than absolutely. It is open to the Court to direct that, the caveat be amended. The amendment of the caveat should be permitted and the caveat should be extended until further order.

Tags : Caveats Extension Equitable co-owner

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