LAND LAW — Caveats — Extension of operation of caveat — Balance of convenience — Defendants joint proprietors of two properties — Plaintiff purports to have interest in properties pursuant to brokerage agreements — Plaintiff lodged three caveats to secure sums it says are owed to it in February and March 2026 — Defendants seek to refinance properties — Lapsing notice of caveats lodged in August 2026 — Defendants concede there is a serious question to be tried — Whether balance of convenience favours extension of the operation of the caveats — Where plaintiff’s purported interest is relatively small compared to value of equity in property — Plaintiff submits removal of caveats would derogate from their interest — Plaintiff submits they require alternative security — Defendants say caveats are preventing refinancing — Defendant say relative strength of plaintiff’s case is low
LAND LAW — Caveats — Suitable alternatives to extension of caveats — Whether plaintiff should be permitted to lodge a further caveat pursuant to s 74O of the Real Property Act
Quick Take
1Where a caveator's claimed interest is for a money sum that is relatively small compared to the available equity in the subject properties, the balance of convenience may weigh against extending the caveat, particularly where the caveat prevents the registered proprietor from refinancing.
2The proposition that a caveat claiming an interest as security for money will be removed 'only where' alternative security is offered is not supported by Marinkovic v Pat McGrath Engineering Pty Ltd; that authority addressed caveats used as devices for commercial pressure and held that adequate alternative security is a sufficient (not a necessary) basis for removal.
3A s 74O order permitting the lodgement of fresh caveats after refinancing is completed can be a suitable alternative that balances the caveator's need for protection against the registered proprietor's need to deal with the property.
