Nittis v Nittis [2007] NSWSC 1407

1 November 2007      

These were proceedings for the withdrawal of a caveat. The property was the subject of a contract of sale with settlement booked for the day after the proceedings. The Defendant submitted that there was a bitter matrimonial dispute between the Plaintiff and the Defendant over the property. This was the third caveat lodged by the Defendant over this property. The interest claimed was an equitable interest pursuant to Family Court proceedings. The Court indicated that the estate or interest claimed was prima facie, not a valid equitable interest in the land. Furthermore, as the caveat was on identical terms to the two earlier caveats, the provisions of s 74O of the RPA were attracted. Section 74O indicates that where a caveat has lapsed and the same caveator lodges a further caveat in respect of the same estate, interest or right the caveat has no effect unless the Supreme Court has made an order giving leave for the lodgement of the further caveat. The Court indicated that the present caveat was without effect and without justification. Therefore the Court ordered the withdrawal of the caveat.

Raptis & Ors v Wija Investments Development Pty Ltd [2007] NSWSC 870

27 July 2007

The case concerned an application to extend a caveat. What the Court had to consider was whether the phrase "equitable interest" sufficiently described the interest claimed. The Court held that a description of the estate or interest in land merely as an ‘equitable interest' does not comply with the requirement to state with sufficient particularity the nature of the estate or interest in the land claimed. Therefore, the caveat was held to be incurably bad in form and the application was dismissed.

Surfers Paradise Coaches (Qld) Pty Ltd v Tsu Chan Lin [2007] NSWSC 475

3 May 2007

The case concerned an application to extend a caveat or, alternatively, for an order pursuant to s 74O of the Real Property Act 1900 (NSW) that the Plaintiff have leave to lodge further caveats. The caveatable interest was pursuant to a deed of personal guarantee not a proprietary interest in subject properties. However, there was a difficulty in identifying what caveatable interest was created by the deed as the deed failed to contain express words of a charge. It recited that the Defendant had given a personal guarantee of the stated debt and also recited that the guarantee was to repay the debt upon the sale or the financing of the subject properties.  

The Court indicated that it was doubtful whether the recital evidenced an agreement to pay the debt out of the proceeds of the sale or financing of the properties. Furthermore, even if it did, such a promise would not create an interest in the properties themselves. Additionally, it was found that the terms of deed rebutted any implication that an agreement to allow lodgement of a caveat created a proprietary interest by way of a charge. Therefore, the notice of motion was dismissed with costs.

Wehbe v Abboud [2007] NSWSC 548

21 March 2007

In the case the caveat claimed an "equitable interest" by virtue of "exchange contract of sale of the subject property dated 19 November 2006". However, the caveat was lodged by a party, namely a vendor's conveyancer, who was not a party to the contract. The Court deemed it plain that the caveator personally had no caveatable interest in the subject land, and that there never was the slightest basis for him to lodge a caveat claiming an interest in it. Therefore, an order was made that the Defendant to withdraw the caveat. Furthermore, the Defendant was ordered to pay compensation for the loss occasioned by the wrongful lodging of caveat.

Rosendorff Lawyers can advise on all issues relating to the lodging of caveats. 

Please note that the information referred to above provides general comments only and may not be applicable to your specific requirements in respect of which you should obtain legal advice.

For further information please contact Trevor Rosenthal on This e-mail address is being protected from spam bots, you need JavaScript enabled to view it .  (03) 8320 2954  www.rosendorff.com.au