The test for extending a caveat under s 138C(2)(a) of the Transfer of Land Act 1893 (WA) — whether the caveator's claim 'has or may have substance' — is akin to the 'serious question to be tried' test under s 138, and even where that test is satisfied, the court retains a discretion to refuse extension where the balance of convenience so requires. A caveat cannot be maintained to prevent a mortgagee's exercise of power of sale unless the caveator can demonstrate that the power of sale itself is impeachable; causes of action in negligence or breach of fiduciary duty against the mortgagee, sounding in damages, are insufficient to impugn the power of sale. A caveatable interest must be expressed subject to a pre-existing registered mortgage.
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