A to Z of Caveats by TurksLegal

BEWARE!

A-Z of Caveats A PAPER BY PAUL ANDERSON & RATNADEEP HOR NOVEMBER 2010

A-Z of Caveats Contents:

TURKSLEGAL

Who May Lodge a Caveat

Caveatable Interests

Form of Caveat

Effect of a Caveat

Removal of Caveat

Lapsing Litigation

Restrictions on Lodging Further Caveat

Compensation

Caveats in other States

Charging Clause

Stamp Duty

Rates of Stamp Duty

Priorities

Enforcement and Remedies

Bankruptcy of a Co-owner

PAPER

A-Z of Caveats by Paul Anderson & Ratnadeep Hor

The word caveat is derived from the Latin term which means ‘warning’ or more literally ‘let him beware’. This essentially is the primary function of a caveat, that is, to ‘warn’ others of your interest in the parcel of land. The majority of the parcels of land in New South Wales are governed by the Torrens title system under the Real Property Act 1900 (NSW). The Torrens title system is a system of title by registration whereby registration of your interest in a parcel of land will give you indefeasible title. However, those who claim an unregistered interest in a parcel of land may protect such interest by registration of a Caveat recording their interest on the folio of the parcel of land.

Who May Lodge a Caveat Section 74F of the Act provides that ‘any person who, by virtue of any unregistered dealing or by devolution of law or otherwise, claims to be entitled to a legal or equitable estate or interest in land under the provisions of this Act may lodge with the RegistrarGeneral a caveat prohibiting the recording of any dealing affecting the estate or interest to which the person claims to be entitled’.

Caveatable Interests Essentially, by virtue of Section 74F those with a ‘caveatable interest’ may register a caveat. There does not appear be a precise deﬁnition of what will amount to an interest capable of supporting a caveat. That being said, there are many established interests that may be protected by registration of a caveat including: 1.

an unregistered mortgage or charge;

an unregistered leasehold interest;

a speciﬁc beneﬁciary under a will or trust;

a bona ﬁde purchaser for value under a contract or a grantee under an option; and

a statutory right, eg Section 83 of the Duties Act 1997.

The interest must be an interest in land. A mere contractual right or personal right such as a debt is not capable of protection by a caveat. What is clear is that an unsecured debt, even a judgment debt, will not support a caveat. The caveatable interest must exist at the time of registration of the caveat. An interest that will arise in the future may not be protected. However, an interest that will arise simultaneously with the lodgement of a caveat will be a caveatable interest. The following are practical examples of caveatable interests: 1.

A trustee in bankruptcy pursuant to Section 58 of the Bankruptcy Act.

A deposit bond provided a charge is created in the application.

A credit application or trading terms and conditions provided that a charge is created by the documentation.

TURKSLEGAL

PAPER

A-Z of Caveats by Paul Anderson & Ratnadeep Hor

It is also clear that a registered proprietor can lodge a caveat over his own land. This is the basis on which a liquidator lodges a caveat. A liquidator does not himself have an interest in the land but he can lodge a caveat in the name of ‘XYZ Pty Ltd (In Liquidation)’ over the land owned by the company. A caveat can be lodged over the interest in land of a joint tenant or tenant in common provided that the caveat is limited to such interest i.e. a caveat cannot extend to the interest of the other joint tenant or other tenants in common.

Form of Caveat Section 74F of the Real Property Act provides that a caveat must be in the ‘approved form’ and specify ‘the prescribed particulars of the legal or equitable estate or interest, or the right arising out of a restrictive covenant, to which the caveator claims to be entitled’. The prescribed particulars to be speciﬁed in caveats are set out in Schedule 3 of the Real Property Regulations 2008. These include: 1.

Particulars of the nature of the estate or interest in land claimed by the caveator;

The facts on which the claim is founded, including (if appropriate) a statement as to the manner in which the estate or interest claimed is derived from the registered proprietor of the estate or interest or the primary or possessory applicant against which the caveat is to operate;

If the caveator’s claim is based (wholly or in part) on the terms of a written agreement or other instrument, particulars of the nature and date of that agreement or instrument and the parties to it;

If the caveator claims as mortgagee, chargee or covenant chargee, a statement of the amount (if readily ascertainable) of the debt or other sum of money charged on the land (or, if the amount is not readily ascertainable, the nature of the debt, annuity, rent-charge or other charge secured on the land);

If the caveator claims as lessee for a term or for a renewal or extension of a term, particulars of the duration of the term or renewed or extended term and its commencing date (and, if the agreement for the term, renewal or extension includes an option for the renewal or extension of the term or to purchase the reversion, a statement to the appropriate effect).

It is not necessary to specify the following: 1.

Whether the estate or interest claimed is legal or equitable; or

The quantum of the estate or interest claimed (except as provided in items 4 and 5 above); or

How the estate or interest claimed ranks in priority with other estates and interests in the land.

Examples of several common caveats are provided in Annexure A. The cases have largely dealt with whether the estate or interest claimed has been adequately described. A defect in the terms of the description is fatal and cannot be cured by amendment. The important point is that the estate or interest must be described

TURKSLEGAL

PAPER

A-Z of Caveats by Paul Anderson & Ratnadeep Hor

in speciﬁc terms. It is not enough to say ‘estate’ or ‘interest’. It will be sufﬁcient to say ‘mortgagee’ or ‘chargee’ and then identify the relevant instrument creating the mortgage or charge. The caveat can be signed by the caveator or his solicitor. It does not need to be signed by the registered proprietor, although LPMA will give the registered proprietor written notice once the caveat is lodged. This means that a caveat can be prepared and lodged at short notice. The current registration fee is $97.

Effect of a Caveat Registration of a caveat does not formalise the interest claimed by the caveator, nor does it give the caveator any further rights in respect of the interest claimed. Registration of a caveat simply records the particulars of the interest claimed on the certiﬁcate of title and protects the caveat from being defeated by a registered dealing such as a subsequent mortgage or transfer. Section 74H(1) of the Act provides that while a caveat remains in force the Registrar General must not (except with the written consent of the caveator) record in the Register any dealing (e.g a transfer), grant any possessory application, register any delimitation plan, cancel the recording of any easement or extinguish any restrictive covenant if it appears that the recording of such instruments is prohibited by the caveat. Basically, the registration of a caveat ‘freezes the Register, preserving the status quo’. It is important to note Section 74H(5). The section lists a number of instruments which, unless expressly speciﬁed in the caveat, will not be prohibited from registration by operation of the caveat. There are 27 exceptions in the list. Many of the exceptions are quite obscure, but the important ones include: 1.

a writ or the cancellation of the recording of a writ;

in relation to a mortgage, charge or covenant charge recorded or lodged in registrable form before the lodgement of the caveat, a dealing effected by the mortgagee, chargee or covenant chargee in the exercise of a power of sale or other power or a right conferred by the mortgage, charge or covenant charge or by or under law; and

a dealing recording the bankruptcy of a registered proprietor.

Removal of Caveat A caveat may be removed in one of four ways, namely: 1.

Withdrawal A withdrawal of caveat may be signed by the caveator or his solicitor. A sample is attached to these notes at Annexure B. The registration fee is $97.

TURKSLEGAL

PAPER

A-Z of Caveats by Paul Anderson & Ratnadeep Hor

Removal by the Court A person who claims an estate or interest in land which is subject to a caveat may apply to the Supreme Court for an order for withdrawal of the caveat. An ofﬁce copy of the order must be lodged with the Registrar General. The registration fee is $97.

Automatic Removal by the Registrar General Section 74H(5)(g) of the Real Property Act 1900 provides that, in respect of a mortgage registered before a caveat, such caveat will not prevent the Registrar General from registering a dealing by the mortgagee in exercise of its power of sale. This section empowers the Registrar General to register a transfer by mortgagee exercising power of sale and automatically remove from the register any subsequent caveat. At ﬁrst sight, this Section would appear to apply to all caveats. However, the Registrar General takes the view that it only applies to caveats relating to loans. On this basis, a caveat protecting an unregistered second mortgage or a charge securing a loan will automatically be removed. All other caveats will not be removed automatically and must be removed by other means. Examples are a caveat lodged by a trustee in bankruptcy or a caveat by a purchaser under a contract for sale.

Lapsing Under section 74J of the Real Property Act 1900, a registered proprietor of an estate or interest affected by a caveat may apply to the Registrar General for the preparation for service on the caveator of a notice requiring the caveator to obtain within 21 days a Supreme Court order extending the operation of the caveat. Unless such an order is obtained within 21 days, the caveat will lapse. Section 74J is designed to provide a quick, inexpensive method for removal of an unsustainable caveat. Samples of an application and a notice issued by the Registrar General are attached at Annexure C. The relevant fee is $97. The Registrar General prepares the notice to the caveator and delivers it to the applicant who is then responsible for serving it upon the caveator. Following service, the applicant must ﬁle with the Registrar General a statutory declaration as to service. If the caveator does not obtain a Supreme Court order within 21 days of service, the caveat will lapse. Under section 74J, only the proprietor of a registered estate or interest in the land can apply i.e. the section does not extend to an unregistered interest. Section 74JA provides a similar procedure for the proprietor of an unregistered interest. However, the application must be accompanied by an adverse dealing i.e. a dealing which, if registered, would give the applicant a registered interest in the land if the caveat did not exist. The difﬁculty is no bank (in the case of a mortgage) or purchaser (in the case of a sale) will settle as long as the caveat is on title, i.e. the bank or purchaser will instead require its customer or the vendor to procure or arrange the removal of the caveat by one means or another before settlement of the mortgage or sale.

TURKSLEGAL

PAPER

A-Z of Caveats by Paul Anderson & Ratnadeep Hor

Lapsing Litigation If a caveator decides to oppose a lapsing application, the normal procedure is for counsel to approach the Duty Judge ex-parte

on an urgent basis for leave to serve short notice upon the applicant. Interim orders are usually made for extension of the caveat until the matter can be heard. Affidavits are filed and the deponents may be cross examined. Counsel are retained. In short, the proceedings can only be described as significant litigation and the legal costs are also significant. The approach of the Judge will be two-fold, namely: 1.

Firstly, he will consider if the caveat is valid.

However, even if the caveat is valid, the enquiry does not end there. The extension of a caveat is discretionary in all the circumstances and has been likened to the granting of an injunction. If extending a valid caveat will be counter-productive or serve no useful purpose, the court will not grant the extension. Lew v Bluescope Distribution Pty Limited (2006).

For example, assume a mortgagee is exercising a power of sale and has exchanged contracts with an unrelated purchaser at market value but the sale is being prevented or delayed by the existence of a subsequent valid caveat. Further assume that there is evidence that the sale proceeds will be insufﬁcient to discharge the mortgage and there is no prospect of the caveator receiving any payment under the caveat. In these circumstances, the court will not order an extension of the caveat, even if it is valid. The court will not permit the caveator ‘to hold to ransom’ the other parties to the transaction in the hope of pressuring a payment. In a similar vein, assume that following a mortgagee sale there will be a surplus available but this time there are two or three subsequent caveats competing for the proceeds. In these circumstances, if the mortgagee gives the judge an undertaking to pay the surplus into court, the Judge is unlikely to extend the caveats. The rights of the caveators to the surplus as between themselves can be determined in a subsequent application.

Restrictions on Lodging Further Caveat Under section 74O of the Act, when a caveat: •

has lapsed;

•

is withdrawn after the preparation of a Lapsing Notice; or

•

is the subject of a Supreme Court Order for its removal,

then any further caveat by the same caveator in respect of the same claimed estate or interest based on the same facts has no effect unless accompanied by an order of the Supreme Court authorising its lodgment.

TURKSLEGAL

PAPER

A-Z of Caveats by Paul Anderson & Ratnadeep Hor

Compensation Section 74P of the Act provides as follows: ‘Any person who, without reasonable cause: (a)

lodges a caveat with the Registrar General; or

(b)

being the caveator, refuses or fails to withdraw such a caveat after being requested to do so,

is liable to pay any person who sustains pecuniary loss that is attributable to such act, refusal or failure ……… compensation with respect to that loss …….’ The important words here are ‘……. without reasonable cause ….’ To succeed under this section, a registered proprietor must generally show that: •

A caveat discloses no caveatable interest; and

•

The caveator did not have an honest belief based on reasonable grounds that he had a caveatable interest.

The fact remains that a potential liability to pay compensation is a signiﬁcant consideration for any person lodging a caveat to ensure that he has a caveatable interest.

Caveats in other States A caveat may be registered on the title of parcels of land in all states and territories in Australia. The law is much the same throughout the various jurisdictions. A caveat may be registered pursuant to the following legislation: • • • • • • •

Land Titles Act 2000 (NT) Land Titles Act 1994 (QLD) Real Property Act 1886 (SA) Land Titles Act 1980 (TAS) Transfer of Land Act 1958 (VIC) Land Titles Act 1925 (ACT) Transfer of Land Act 1893 (WA)

For the most part, the above legislation contains provisions similar to that of the Real Property Act 1900 (NSW). However, caveators should be aware of the Northern Territory and Queensland legislation which provide that a caveat will automatically lapse 3 months after the date of its registration unless the Registrar General is notiﬁed of institution of proceedings to establish the interest claimed.

TURKSLEGAL

PAPER

A-Z of Caveats by Paul Anderson & Ratnadeep Hor

Charging Clause An example of a common charging clause is as follows: ‘The Borrower hereby charges all of his right title and interest in any present or future real estate that he owns with the performance of his obligations under this document and hereby consents to the registration by the lender of a caveat against the title to such real estate to protect the charge created by this document.’ Strictly speaking, consent is not necessary because a charge has been created. What about the reverse situation: is a consent without a charge sufficient to allow the lender to register a caveat? In the 1994 Court of Appeal decision of Troncone v Aliperti, the wording was as follows: ‘The borrower authorises the lender to lodge a caveat on any property owned by the borrower to protect the lender’s interests.’ There was no express creation of a charge. The Court upheld the validity of a caveat. Mahoney, J said: ‘Unless there is evidence of intention to the contrary, the grant to the creditors of an authority to lodge a caveat on its property carried with it by implication such an estate or interest as was necessary to enable that authority to be exercised. There was in the present case no intention to the contrary. It is not necessary to determine what is the precise nature of the interest in the land… It is sufficient to conclude that it was an interest which would support the lodgement of a caveat.’ It is fair to say that Troncone v Aliperti has been regarded by commentators with less than unqualified enthusiasm. One editor commented at the time that ‘the scope of caveatable interests was certainly stretched to the ultimate.’ In a series of cases since, single judges have skilfully circumvented the decision (although technically binding upon them) and held that the particular consent clause was not sufficient to support a caveat. Iaconis v Lazar (2007), per Young, CJ in Equity, Express Loans and Finance Pty Limited v Hunter (2004) per Bryson, J and most recently Nguyen v Kaha (2008) per Austin, J. The lesson is that the lender should not rely simply upon a consent but should have a clause similar to the example given above which includes both a charge and a consent.

Stamp Duty In the 2009 case of Boral Recycling v Wake, the parties executed a Guarantee & Indemnity in respect of a trading account. Clause 9 of the document provided that the Guarantor agreed to ‘charge all their equitable interest in freehold and leasehold property’ with the performance of their obligations. The Guarantor further agreed to deliver to the plaintiff within seven days of demand a properly executed mortgage. A caveat was registered at LPMA NSW to secure the plaintiff’s interest. Neither the Guarantee & Indemnity nor the caveat had been stamped. The defendants argued that the Guarantee and Indemnity was liable for stamp duty and was unenforceable because it had not been stamped.

TURKSLEGAL

PAPER

A-Z of Caveats by Paul Anderson & Ratnadeep Hor

Under the Duties Act 1997, ‘Mortgage’ is deﬁned as ‘a mortgage of any estate or interest in land… whether the land is situated in NSW or elsewhere, and includes a charge over any such land.’ McDougall, J held that: •

The Guarantee and Indemnity was clearly a ‘mortgage’ under this deﬁnition and therefore liable for stamp duty.

•

Under Section 227, either the Guarantee and Indemnity could be stamped as a mortgage and the caveat stamped as collateral security in the sum of $50.00 or the caveat could be stamped as a mortgage.

•

Under Section 211, the failure to stamp documents meant that they were unenforceable. Furthermore, a defect as far as the caveat was concerned could not be cured by subsequently stamping it. The relevant date was the date the caveat was lodged. If it had not been stamped by that date, it was too late.

At ﬁrst sight, the problem could be overcome by subsequently stamping the Guarantee & Indemnity and a new caveat. However, under Section 74O of the Real Property Act ‘a further caveat, in respect of the same estate or interest and purporting to be based on the same facts’ has no effect without an order of the Court.

Rates of Stamp Duty The stamp duty payable on a ‘mortgage’ is based upon the amount secured by the mortgage. The rate is $5.00 for the ﬁrst $16,000.00 and $4.00 per $1,000.00 or part thereof thereafter. By way of illustration, the stamp duty payable on a mortgage of $200,000.00 is $741.00 plus $50.00 for a collateral caveat. However, the position has been complicated because the New South Wales government has announced a program to abolish mortgage duty in stages by 1 July 2012. At the present time, mortgage duty has been abolished in respect of: •

A mortgage to secure an advance to an individual for the purpose of ‘owner occupied housing’; and

•

A mortgage to secure an advance to an individual for the purpose of ‘investment housing’.

Under Section 221B, an advance is made for the purpose of owner occupied housing if it is applied wholly or predominantly for one or more of the following purposes: (a) Financing the acquisition of a residence; (b) Financing the construction of a residence; (c) Financing alterations or additions to a residence; (d) Financing the acquisition of residential land; (e) Repaying another advance, if the advance to be repaid was made for the purpose of owner occupied housing.

TURKSLEGAL

PAPER

A-Z of Caveats by Paul Anderson & Ratnadeep Hor

A ‘residence’ is a private dwelling house that is used and occupied or intended to be used and occupied by the borrower, or by any of the borrowers, as a place of residence. Under Section 221C an advance is made for the purpose of investment housing if it is to be applied wholly or predominantly for one or more of the following purposes: (a) Financing the acquisition of investment housing; (b) Financing the construction of investment housing; (c) Financing alterations or additions to investment housing; (d) Repaying another advance, if the advance to be repaid was made for the purposes of investment housing. ‘Investment housing’ is any private dwelling house that is used, or is intended to be used or sold, for investment or business purposes (or both) by the borrower or by any of the borrowers. This appears to leave the following mortgages liable for stamp duty pending its total abolition on 1 July 2012: •

Mortgages by companies;

•

Mortgages by individuals if the purpose of the loan does not relate to a private dwelling house, eg. a factory, shop or ofﬁce; or

•

Other mortgages which do not come within the strict deﬁnitions of purpose of owner occupied housing or the purpose of investment housing.

Priorities Especially in insolvency situations, a title may be subject to a number of mortgages (registered and unregistered) and caveats. Generally, the date of registration will determine the order of priority as between registered interests. For example, a caveat to secure a loan will take precedence over a subsequent mortgage even if the mortgage is registered. However, if the order is reversed, the mortgage will have priority. This means a mortgagee can exercise its power of sale and all subsequent interests including the caveat will automatically be removed pursuant to section 74H of the Act. Caveats are designed to protect unregistered interests. Priority as between unregistered interest is determined by date of execution and not necessarily date of registration of the caveats lodged to protect such interests. However, delay in lodging a caveat will frequently result in the usual order of priorities being reversed. For example, A grants B an unregistered mortgage dated 1 January and then C an unregistered mortgage dated 1 June. Normally, B would have priority over C, but if B fails to lodge a caveat and C does so promptly, the likely outcome is that the normal order will be reversed and C will have priority. This is because C has searched and relied upon the register.

TURKSLEGAL

PAPER

A-Z of Caveats by Paul Anderson & Ratnadeep Hor

A registered mortgagee exercising power of sale may have a potential problem dealing with competing subsequent interests if there are surplus sale proceeds available. The practical answer for the mortgagee is to pay the surplus into court and priority between subsequent interests can be determined in separate litigation.

Enforcement and Remedies Assume that you have the beneﬁt of a caveat to protect a loan and the borrower defaults: what action can be taken? You might have an unregistered mortgage protected by a caveat or a charge secured by a caveat. The obvious problem is that the only effect of a caveat is to prevent the registration of subsequent dealings. A caveat does not in itself give any other substantive rights, eg a power of sale. It is sometimes said that a caveat is a ‘shield’ and not a ‘sword’. This situation needs to be contrasted with a registered mortgage which confers a statutory power of sale that can be invoked by the mortgagee following default. A caveator still has a number of options, namely: 1.

Other court action One alternative is to sue for the amount owing in the ordinary way in the District Court or Supreme Court depending upon the size of the debt. If necessary following judgment, bankruptcy proceedings can be instituted leading to a sequestration order and the appointment of a trustee in bankruptcy. The trustee in bankruptcy has statutory powers of sale and ultimately the property will be sold. The caveat will prevent any dealings with the property in the meantime. You are a secured creditor pursuant to your mortgage or charge and will have priority in any claim on the sale proceeds over unsecured creditors. One problem, however, that could arise is that the trustee in bankruptcy might decide that there is no equity in the property for unsecured creditors. In these circumstances, the trustee will have no interest or incentive in selling the property.

Sale by a registered first mortgagee In most cases, if default has occurred under your loan, default has almost certainly occurred under the registered first mortgage. In these circumstances, the registered first mortgagee has a statutory power of sale. Following the sale, the first mortgagee will deduct his debt, interest, costs and expenses and is then obliged to apply any surplus in payment of any subsequent mortgage or charge or to the mortgagor (Section 58 of the Real Property Act Act). In practice, the first mortgagee may pay any surplus into Court for the Court to decide the priority between competing interests. However, there is a possibility that, although the debtor has defaulted under your loan, he has not defaulted under the first mortgage. If he is continuing to meet mortgage payments, then the first mortgagee has no power of sale.

TURKSLEGAL

PAPER

A-Z of Caveats by Paul Anderson & Ratnadeep Hor

Registration of second mortgage If your security is an unregistered second mortgage, you can try to register the mortgage. Once registration is achieved, then you have a statutory power of sale. However, registration will require the consent of the first mortgagee who will also need to produce the title deed to Land and Property Management Authority for this purpose. What if the first mortgagee refuses to consent or produce the title deed? One provision that at first sight appears to assist is Section 12(1)(a) of the Real Property Act 1900. This Section provides: ‘The Registrar General may require any person who may have possession or control of an instrument relating to land the subject of a dealing, or relating to the title to any such land, to produce that instrument…’ However, the Registrar General has taken the view that Section 12(1)(a) does not give him the power to require a first mortgagee to produce a title deed to enable the registration of a second mortgage. In short, a first mortgagee cannot be compelled to assist an unregistered second mortgage to achieve registration.

Judicial sale If all else fails, the only other alternative available to you is to seek an order from the Supreme Court for sale of the property. Jurisdiction to grant such an order has recently been acknowledged and conﬁrmed in the case of an unregistered second mortgage (King Investment Solutions v Hussain [2005] NSW SC 1076) and in the case of a charge (Guardian Mortgages Pty Ltd v Miller [2004] NSW SC 1236). In Hussain, Campbell J considered at some length the Court’s function and powers in ordering the judicial sale of a property. In particular, his Honour held that: •

The jurisdiction is discretionary and will depend upon all the facts of each case.

•

The first mortgagee is an essential party to the proceedings if only to avoid competing sales between the first mortgagee and the judicial sale. In Hussain, the failure to join the first mortgagee was fatal to the proceedings.

•

If the ﬁrst mortgagee will not consent to the sale, then the Court can only order a sale subject to the ﬁrst mortgage which would be commercially impractical.

•

Evidence must be produced as to the value of the property and the amount owing to the ﬁrst mortgagee.

•

The Court will determine the conditions of the sale, eg reserve price (which would normally exceed the amount owing to the ﬁrst mortgagee) and whether security is to be provided for the sale expenses.

•

The Court will consider who should conduct the sale, eg the ﬁrst mortgagee, second mortgagee or occasionally even the mortgagor.

•

Consideration will be given to whether further time should be given to the mortgagor to remedy the default.

TURKSLEGAL

PAPER

A-Z of Caveats by Paul Anderson & Ratnadeep Hor

•

Consideration will also be given to ordering vacant possession of the property as a precondition to the sale.

•

The Court will also determine the order of payment of competing interests.

The above summary highlights that proceedings for judicial sale are not simple or inexpensive. There is a clear contrast with a statutory sale by a registered mortgagee. If your debt is large, the process is clearly justiﬁed but if your debt is relatively small, you certainly want to look ﬁrst at other alternatives.

Bankruptcy of a Co-Owner The bankruptcy of one of several co-owners of a property presents particular challenges from a realisation point of view. The trustee in bankruptcy will normally take the following steps: 1.

Lodge a caveat as a holding measure;

Register a Bankruptcy Application at LPMA in respect of the interest of the bankrupt owner. This requires the production of the relevant title deed by the mortgagee if the property is subject to a mortgage. It will then be in the name of the trustee and the co-owner.

Undertake negotiations with the co-owner with a view to selling to him/her the bankrupt’s interest.

If negotiations are unsuccessful and the mortgagee is not moving to sell the property, apply to the Court for the appointment of trustees for sale of the property under Section 66G of the Conveyancing Act 1919.

Following sale of the property, the trustees for sale will pay: •

The expenses of sale including their fees;

•

The amount required to discharge any mortgage;

•

Half of the net proceeds to the trustee in bankruptcy; and

•

The other half to the co-owner.

The lodging of the caveat is the ﬁrst step in a long and rocky road, but effectively holds the situation while realisation action is taken.

TURKSLEGAL

PAPER

A-Z of Caveats by Paul Anderson & Ratnadeep Hor

For more information, please contact: Paul Anderson Partner T: 02 8257 5742 paul.anderson@turkslegal.com.au

Ratnadeep Hor Lawyer T: 02 8257 5706 ratnadeep.hor@turkslegal.com.au

www.turkslegal.com.au This Pap er is cur rent at i t s d ate o f p u b l i c at i o n . Wh i l e eve r y c a re h a s b e e n t a k e n i n t h e p re p a rat i o n o f t h i s Pa p e r i t d o es not constitute legal advice and should n o t b e re l i e d u p o n fo r t h i s p u r p o s e. Sp e c i f i c l e g a l a dv i ce s h o u l d b e s o u g ht o n p a r t i c u l a r m atters. Tur ksLegal do es not accept resp on s i b i l i t y fo r a ny e r ro r s i n o r o m i s s i o n s f ro m t h i s Pa p e r. Th i s Pa p e r i s co py r i g ht a n d n o p a r t m ay b e repro duced in any for m without th e p e r m i s s i o n o f Tu r k s Le g a l . Fo r a ny e n q u i r i e s, p l e a s e co nt a c t t h e a u t h o r o f t h i s Pa p e r. ÂŠ Tu r k s Le g a l 2 01 0

A-Z of Caveats by Paul Anderson & Ratnadeep Hor

Annexure A

TURKSLEGAL

PAPER

A-Z of Caveats by Paul Anderson & Ratnadeep Hor

Annexure B

TURKSLEGAL

PAPER

A-Z of Caveats by Paul Anderson & Ratnadeep Hor

Annexure C

TURKSLEGAL

PAPER