Extension of Caveat Against Lapsing - Victoria (Caveator) - Registered Proprietor Applying to Remove Caveat (No Valid Interest) - s 90 TLA

When should a registered proprietor use a s 90 TLA application instead of a s 89A notice?: The s 89A process (an application to the Registrar supported by a legal practitioner's certificate) compels the caveator to have proceedings on foot and notify the Registrar by the day specified in the Registrar's notice, at least 30 days after it is served or posted, or lose the caveat - it is fast and uses a statutory countdown. A s 90 Supreme Court of Victoria application under the Transfer of Land Act 1958 (VIC) is appropriate when the registered proprietor wants the Court to declare directly that the caveator has no valid caveatable interest and order the caveat's removal. A s 90 application may be preferable where the registered proprietor wants to take the initiative in the Court proceeding, where the caveat appears clearly misconceived, or where there is no urgency and the registered proprietor wants a costs order against the caveator confirmed by the Court.

What grounds can a registered proprietor rely on to remove a caveat under s 90 TLA?: The registered proprietor must demonstrate to the Supreme Court of Victoria that the caveator does not hold a genuine caveatable interest in the land. Grounds include: the claimed interest is personal rather than proprietary (i.e., a right to be paid money rather than an interest in the land itself); the caveat substantively misdescribes the claimed interest; there was no agreement or instrument capable of giving rise to the claimed equitable interest; or the caveator consented to the dealing that the caveat purports to block. The Court applies the test in Piroshenko v Grojsman (2010) 27 VR 489: the onus is on the caveator to show a serious question to be tried that it holds the interest claimed, and the balance of convenience is weighed after that.

Jurisdiction: Supreme Court of Victoria. Land Use Victoria administers the Torrens title register under the Transfer of Land Act 1958 (VIC). On production of a sealed s 90 removal order, Land Use Victoria removes the caveat from the register.

The Process at a Glance: The registered proprietor instructs the firm to apply to the Supreme Court of Victoria under s 90 TLA (VIC). A current title search and the official caveat instrument are obtained. The claimed interest is analysed for all grounds of invalidity. The caveator's legal representative is contacted to explore whether the caveat can be removed by negotiation or consent. If negotiation fails, a Summons and Affidavit in Support are prepared and filed in the Supreme Court. The caveator is served at their address for service recorded in the caveat instrument. The matter proceeds to hearing. If the order is made, the sealed order is served on Land Use Victoria. A s 118 compensation claim is assessed.

Key Legislation: Transfer of Land Act 1958 (VIC) - s 90 (removal of caveat by Supreme Court order on application of registered proprietor); s 118 (compensation for lodging caveat without reasonable cause). Piroshenko v Grojsman (2010) 27 VR 489 - the caveator must show a serious question to be tried that it holds the interest claimed, and the balance of convenience is weighed after that; the onus stays on the caveator on a removal application.

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