Caveats - how does someone remove a caveat (part 1)

When a caveat is lodged on a title to land, the consequences are severe: generally speaking, the registered proprietor is prevented from disposing of the land the subject of the caveat (see s91 Transfer of Land Act 1958 (Vic) (the TLA).

A person may seek to have a caveat removed by several means, including (by way of summary):

• by the Registrar issuing a notice requesting the caveator either to give notice abandoning the claim or  issuing proceedings to substantiate the claim (s89A TLA);
• by a person lodging a dealing on the title and 30 days have passed since the registrar gave notice to the caveator that the caveat will lapse (s90(1) TLA); or
• By application to the Court to have the caveat removed (s90(3) TLA).

This post and the discussion below concerns application to a Court under s90(3) TLA. Application to the Court is probably the quickest and most certain way to seek to have a caveat removed or substantiated. By way of observation, the provision by the caveator of a notice under s89A TLA that proceedings have been issued to substantiate a claim is not a very high hurdle, and will probably result in delay pending the determination of the proceedings.

Caveats - accuracy of information and amendment

In my previous posts I discussed what is a caveat and what interests a caveat protects. When a person lodges a caveat, the document is quite simple in appearance but it has a great effect upon a registered proprietor's ability to deal with their land.

I have included a link here to the DPI approved caveat form.

The section which is headed 'Estate or Interest claimed' requires a caveator to state the interest which the caveator is seeking to protect. The section which is headed 'Grounds of claim' requires a caveator to state how the estate or interest claimed arises. These sections attract a lot of attention in litigation because a failure to get these details right could render the caveat defective and lead to a Court order that it be removed.

A Court has a discretion to order the removal of an unintelligible caveat. The Court also has a discretion to amend an unintelligible caveat so that it reflects what is actually claimed by the caveator. So how does a Court decide whether to remove or amend a caveat that is unintelligible? I have discussed these issues below in further detail.

Hodgson v Amcor Ltd; Amcor Ltd v Barnes & Ors (No 4) [2011] VSC 269 - privilege and improperly obtained evidence

The matter of Hodgson v Amcor Ltd; Amcor Ltd v Barnes & Ors (No 4) [2011] VSC 269 (Hodgson v Amcor) was a ruling in the Supreme Court of Victoria by Vickery J on whether a letter of advice from a solicitor (Mr Dillman) to the plaintiff (Mr Hodgson) could be tendered in evidence. The ruling is chock full of useful discussions on issues relating to subpoenas, privilege and the use of improperly obtained evidence.

The defendants (Amcor) sought to use the letter of advice in cross examination and objection was made to that use by the plaintiff under s118 of the Evidence Act 2008 (Vic) (the Evidence Act) and s138 of the Evidence Act. Amcor said that it could use the letter by reason of the plaintiff acting inconsistently with the maintenance of a claim of privilege by the following conduct:

1. The letter of advice was received by two third parties.
2. The letter of advice was listed in a supplementary affidavit of documents and the plaintiff did not object to it being listed in that document.
3. The letter of advice was referred to in the opening address of Amcor's senior counsel and the plaintiff did not object to it being referred to.

On the basis of the above conduct, Amcor said that legal professional privilege was lost by operation of s122 of the Evidence Act. The Court disagreed. I have included a case summary and discussion below.

Berengo v Amaca Pty Ltd & Anor [2011] VSC 276 - pre-judgment interest rates

The matter of Berengo v Amaca Pty Ltd & Anor [2011] VSC 276 (Berengo v Amaca) was a post-judgment hearing before T Forrest J. The matter was a personal injury claim in which the second defendant was ordered to contribute $150,000 to the first defendant plus $15,000 of contributed costs. The Court said that pre-judgment interest will apply, but it had to determine the appropriate rate as s60(1) of the Supreme Court Act 1986 (Vic) gives the Court a discretion to fix the rate of interest applicable.

I have included a discussion and extracts of this matter below.

Caveats - which interests in land are caveatable interests?

In my previous post on this topic, I noted that the following phrase in s89(1) of the Transfer of Land Act 1958 (Vic) (TLA) determines what interests are capable of protection by a caveat: 'any estate or interest in land under any unregistered instrument or dealing or by devolution in law or otherwise'. I then discussed what is an interest in land for the purpose of this provision.

The interest in land must arise from 'any unregistered instrument or dealing or by devolution in law or otherwise'. In Victoria, there is a divergence of views on what interest in land is afforded protection by a caveat.

I have discussed the divergence of views below.