is this legal - caveat

Nothing happens if you don't grease the wheel. They are not affected if they leave the caveat on the property, it affects you and the ball is in your court if and when you want to deal with the issue.

If you pass away tomorrow, then it will become more complex to prove that you no longer have the debt, the executor will then have to pay the $ to get the caveator to remove their interest in the property.

 

i do not agree
1 the debt is paid. account reflects this
2 >

Compensation for lodging caveat without reasonable cause
Any person lodging with the Registrar without reasonable cause any caveat under this Act shall be liable to make to any person who sustains damage thereby such compensation as a court deems just and orders.

TRANSFER OF LAND ACT 1958 - SECT 118 Compensation for lodging caveat without reasonable cause

 

In this case you can take legal action to seek compensation if the court finds the caveat was lodged without reasonable cause.

Just two questions. How much would legal action cost? Can you convince a court that the caveat was lodged without reasonable cause?

I realise that what happened is upsetting but you really need to understand the legalities of what has happened before you take any action. There is a lot of good information here, which I would encourage you to read

Lodgment of Caveats - Carroll & O'Dea Lawyers

 

ok so what are you going to do, op?

 

Didn't they have a reasonable cause?

 

this seems to be about lodging, not removing.

also how much would it cost to get a court order to remove?

 

More than the $400 that was mentioned earlier. This is all about the principle, if you *+%€ up, admit you were wrong (as per the judgement) and pay up the required amount for the removal of the caveat.

The titles office doesn't allow a caveat to be lodged without due cause (ie caveatable interest), so it's unlikely that the court will find otherwise.

Why is the caveat there in the first place? Refer to your favorite Act.

"PART V—INCIDENTAL PROVISIONS
Division 1—Caveats against dealings
89 Caveats temporarily forbidding dealings with lands
(1) Any person claiming any estate or interest in land
under any unregistered instrument or dealing or by
devolution in law or otherwise or his agent may
lodge with the Registrar a caveat in an appropriate
approved form forbidding the registration of any
person as transferee or proprietor of and of any
instrument affecting such estate or interest either
absolutely or conditionally and may, at any time,
by lodging with the Registrar an instrument in an
appropriate approved form, withdraw the caveat
as to the whole or any part of the land.
(2) A recording of every caveat lodged under this
section must be made in any relevant part of the
Register.
(3) The Registrar shall give to the registered
proprietor of the estate or interest concerned
notice of the caveat together with a copy of the
caveat or of such particulars thereof as the
Registrar deems material to such person.
(4) Every notice relating to any such caveat and any
proceedings in respect thereof if served at the
address specified in the caveat shall be deemed to
be duly served."

 

Unlikely, I agree. The link I provided did have a couple of examples but they were exceptional, not routine like this appears to be.

Without legal advice we won't know, but looking through the list of reasons in the link I provided it seems this coukd be relevant

The interest of a person with a right to have the land sold and to have a portion of the proceeds of sale

 

As you said legal advice would include a review of all relevant subordinate legislation which created and grants powers to the utility and the extent/exercise of those powers.

Often the powers are wide ranging at other times an agency is unable to exercise such activity or may be at the Minister's discretion.

 

So to recap.

a caveat was lodged legitimately.
There is no law that says a caveat has to be removed by the party who put it on within a certain time.
Party charges a fee to do this.
Challenging this would cost more than the fee.

so, op, what are you going to do?

 

This is what I think has happened.
A bill was not paid for whatever reason. This eventually led to court proceeding which resulted in a default judgment. Caveat was lodged before or after this.
Judgment debt was paid but removing the caveat will result in more fees and the poster doesn't want to pay these fees thinking that he has paid the debt and there is now no longer any basis for their to be a caveat or to charge a fee for it's removal.

 

Mortgages arent automatically removed from title either and people get surprised when their bank sends a form that seeks that instruction - and asks for a fee to be paid.

 

Under ss89A and 90(3) of the Transfer of Land Act 1958 (TLA) there are two different procedures available by which a party can remove a caveat.

1. Removal under s89A

2. Removal under s90(3)

Removal under Section 89A must be in the prescribed form and must be supported by a certificate signed by a legal practitioner which states that in his or her opinion the caveator does not have the estate or interest claimed.

The procedure under s90(3) of the TLA allows a court to determine summarily the issue of the removal of a caveat. Section 90(3) provides that “any person who is adversely affected by any such caveat may bring proceedings in the court against the caveator for the removal of the caveat and the court may make such order as the court thinks fit”.


The proceeding is usually brought by originating motion in the Practice Court of either the Supreme or County Courts (if the value of the land is less than $200,000). The registrar of titles is usually made a defendant to the proceeding but customarily will not participate. It is possible to invoke this procedure even if proceedings are already on foot.


The onus of proof to maintain the caveat is on the caveator. This will require the caveator to swear an affidavit to substantiate the caveatable interest and depose to any other matters relevant to the application. The first consideration for the court then is whether the caveat complies with all formal requirements.

https://www.liv.asn.au/LIV-Home/Practice-Resources/Law-Institute-Journal/Archived-Issues/LIJ-April-2004/Removal-of-caveats-the-possibilities

Seems like removal under s90(3) could be an option?

 

What are the filing fees and drawing up the motion will cost if a lawyer does it

 

Is there a legal requirement for a lawyer to draw up the motion?

I don't know what the filing fees are. Could be costly.

 

No they could do it themselves if they knew how

 

Big if.

Also, if a motion was filed then withdrawn, let's say the other party removed the caveat, is there a fee for withdrawing the motion?

I'm starting to think the whole proposition is risky. If it proceeded to hearing then there could also be court costs.

It might be cheaper and easier just to pay the $400

 

Most states have provisions for issuing of a caveat lapsing notice as Terry pointed out. Small fee and a form. Try this with a free community lawyer to sign off on form.

Free legal service or court clerk can help with motion. However courts are usually more lenient for self represented applicants, especially if can produce an email from caveator saying no remaining interest. Also, usually no fee for withdrawing, but there is an initial filing fee.

Either way - only free solution is to pay bills on time.