Extension of Caveat Against Lapsing - Victoria (Caveator)

What evidence does a caveator need to substantiate a caveat claim in Victoria's Supreme Court?: The caveator must demonstrate a prima facie case that they hold a genuine caveatable interest in the land itself - not merely a personal or contractual right. Recognised caveatable interests include: a constructive trust imposed to prevent unconscionable conduct (Muschinski v Dodds (1985) 160 CLR 583); an equitable charge securing a debt by agreement specifically over the land; the interest of a purchaser under a specifically enforceable contract; a vendor's lien for unpaid purchase money; an unregistered mortgagee's interest; and a beneficial interest under an express trust. The affidavit in support must not merely assert the interest - it must exhibit the underlying instruments. The caveator must show a serious question to be tried that it holds the interest claimed, and only then does the balance of convenience arise: Piroshenko v Grojsman (2010) 27 VR 489. A bare assertion without documentary support is unlikely to meet that threshold.

Jurisdiction: Section 89A(3)(b) refers to proceedings in a court or VCAT to substantiate the caveator's claim; this plan assumes the proceeding is brought in the Supreme Court of Victoria. The Registrar of Titles is the officer of Land Use Victoria responsible for administering the Torrens title register under the Transfer of Land Act 1958 (VIC). Service on the Registrar is made at Land Use Victoria, Level 10, 570 Bourke Street, Melbourne VIC 3000.

The Process at a Glance: The matter begins when the caveator receives a s 89A notice from the Registrar of Titles. The practitioner must immediately read the lapse day specified in the notice (at least 30 days after the notice was served or posted) and enter it in the PMS as a critical date on an urgent footing. A current Land Victoria title search is obtained to confirm the caveat details. A conflict of interest check is conducted and the file opened with an appropriate costs agreement. The nature of the client's caveatable interest is assessed and classified - this drives the entire evidentiary strategy. Supporting documents are gathered urgently and a barrister is briefed. The Originating Motion and Affidavit in Support are drafted, settled with counsel, and filed in the Supreme Court of Victoria. Notice in writing that the proceedings are on foot, with a sealed copy of the filed originating process, is separately given to the Registrar of Titles at Land Use Victoria before the day specified in the notice - this step is mandatory under s 89A(3)(b) and s 89A(5) and is often missed by practitioners unfamiliar with the process. Once both steps are done the caveat does not lapse on the specified day (s 89A(5)). The first hearing in the proceeding is attended; the registered proprietor may ask the Court to remove the caveat under s 90(3) and either side may seek interlocutory relief. If the caveat stays on the Register, the matter continues to the determination of the caveator's claim. If the Court finds the claim is not substantiated it may make such order in relation to the caveat as it thinks fit (s 89A(7)(a)), and if the proceeding is discontinued, withdrawn, struck out or dismissed the caveat lapses once the Registrar is served with the notice or order, or evidence of the dismissal (s 89A(7)(b)); the practitioner must then immediately consider alternative remedies.

Key Legislation and Case Law: Transfer of Land Act 1958 (VIC) - s 89A (caveat lapses on the day specified in the Registrar's notice, at least 30 days after service or posting, unless proceedings are on foot AND the Registrar has written notice of them); s 89A(7) (orders the court or VCAT may make if the claim is not substantiated, and lapse where the proceeding is discontinued, withdrawn, struck out or dismissed); s 90(3) (proceedings by any person adversely affected by a caveat for its removal); s 91(4) (a caveat that has lapsed or been removed by court order cannot be renewed by the same person for the same interest); s 118 (compensation for lodging caveat without reasonable cause); s 42 (indefeasibility of registered title). Piroshenko v Grojsman (2010) 27 VR 489 - the caveator must first show a serious question to be tried that it holds the interest claimed; the balance of convenience is considered only after that. Approved in Chan v Liu [2020] VSCA 28. Muschinski v Dodds (1985) 160 CLR 583 (HCA) - a constructive trust imposed to prevent the unconscionable retention of a benefit. Supreme Court (General Civil Procedure) Rules 2025 (VIC) - form of Originating Motion and Affidavit requirements.

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