Can I lodge a second caveat if my first caveat is removed or lapses in Victoria?

I have recently come across a spate of cases where a caveat has been removed (either by the Registrar of Titles on application, or by Court order), only for the caveator to lodge the same caveat again!

Section 91(4) of the Transfer of Land Act, 1958 makes it clear that the second caveat cannot remain on the title. That sub-section provides:

A caveat that has lapsed or been removed by an order of a court shall not be renewed by or on behalf of the same person in respect of the same interest.

Case law – Section 91(4)

Gobbo J was called on to remove a caveat under section 91(4) in Gurwitz v Gurwitz [1988] VicSC 239.

At the end of the first paragraph on page 4 of the unreported judgment, Gobbo J noted:

… nothing was done and, accordingly, simply as a matter of the operation of s. 89(a) (sic), the first caveat lapsed. On 4 May the respondent lodged another caveat, which I will refer to as the second caveat, through different solicitors.

At the start of the first paragraph on page 5 of the unreported judgment, Gobbo J noted:

The applicant accordingly applied to remove the second caveat on the three bases ... Secondly, that the second caveat should be removed because it covers the same ground as the first caveat and falls within section 91 (4) …

At the foot of page 5 of the unreported judgment, Gobbo J noted:

… The section is not concerned with matters of grounds or evidence in support of the interest. The sub-section could scarcely have been intended to depend (page 6) upon whether the evidence in support of a particular interest varied and, for that reason also, perhaps the grounds in support of a particular interest. It seems to me that what the section is designed to do was to identify whether it was, in substance, the same interest that was set up.  

At the foot of page 8 of the unreported judgment, Gobbo J concluded:

I am therefore of the view that section 91 (4) applies in the present case. It is clear that this first caveat had lapsed. It further appears that the second caveat is one that is made on behalf of the same person in respect of the same interest in the same parcel of land, and that the prohibition against it being renewed applies here, and that provides good cause as to why the second caveat should be removed.

In Sinn v National Westminster Finance Ltd [1985] VR 363, Tadgell J considered the operation of section 91(4), in the following terms (at VR 365 – 6):

A provision equivalent to section 91 (4) of the Transfer of Land Act 1958 has stood in the Torrens title legislation of this State since the Transfer of Land Statute 1866 (Act No. 301) but it appears to have attracted remarkably little attention from the courts.…Venerable of lineage and economical of words though section 91 (4) is, it is not a model of clarity. The following observations seem to be deserved. A caveat, once it has lapsed or have been removed, cannot in strictness be renewed in the sense of restored, revived, regenerated or re-established. The word “renewed” in the sub-section seems to mean “replaced” or, perhaps, “repeated”. The phrase “by your on behalf of the same person in respect of the same interest” evidently involves a kind of ellipsis. I think it must intended to convey, when read the words preceding it, that a person by whom or on whose behalf a caveat has been lodged that has lapsed or been removed shall not lodge or have lodged on his behalf another caveat in respect of the same interest as that in respect of which the first caveat was lodged. … the effect of s91(4), therefore, would appear to be that a person may not claim and specify by a caveat an interest which is the same interest as that which he has claimed and specified by a caveat that has lapsed or been removed.

In Burgtreus Pty Ltd v Burgin & Anor [2005] VSC 339, Cummins J dealt with another similar application. At paragraph 16, Cummins J noted:

The essential points are these in my view. First, in my view the caveat, being the second caveat, covers the same ground as the first caveat and falls within section 91 (4) of the Act. The first defendant lodged the first caveat … The stated interest there claimed was an estate in fee simple; the grounds of the claim an equitable interest by way of constructive trust. The second caveat, the subject of these proceedings, again claims an estate in fee simple; however the grounds of claim are “Financial contributions to purchase price of each property and labour and cost of improvements. Verbal agreements”. It is clear that a caveat ought not be accepted in the circumstance where the same interest is claimed in the second as the first. That was established in Gurwitz v Gurwitz; also Sinn v National Westminster Finance Ltd.

In Austwide Property & Developments Pty Ltd v Vukasinec [2004] VSC 333; BC200406309 Osborn J dealt with an application under section 91(4) as follows (at paragraphs 9 to 10):

[9] In the current case it is contended the caveat is bad for two reasons: firstly, it is said the caveat does not disclose a caveatable interest in land. Secondly, it is said that it has been lodged in breach of s 90(4) (sic) of the Transfer of Land Act. This provides: "A caveat shall not be renewed by or on behalf of the same person in respect of the same interest."
[10] Although it is strongly arguable that the caveat does not disclose a caveatable interest, I would have some reluctance to dispose of it on this basis if I were persuaded that what was really in issue was a matter of English expression by a litigant in person whose first language I infer is not English. It is strictly unnecessary, however, for me to determine this question because I have reached the view that there is no credible evidence that the grounds of the interest claimed could be sustained and that the caveat was lodged in breach of s 90(4) (sic) of the Transfer of Land Act.

In the matter of Jankovic v Dobrijevic (SCI 2017 03587), I appeared for the plaintiff who sought removal of a caveat lodged in breach of section 91(4). The Honourable Justice Jack Forrest of the Supreme Court of Victoria ordered the removal of the caveat and ordered the caveator to pay the plaintiff’s costs on an indemnity basis.

In the matter of Strathmore Views P/L and anor v High Street Projects P/L and anor (SCI 2017 04894), the Honourable Justice Keogh ordered the removal of the caveat and ordered the caveator to pay the plaintiff’s costs of the proceeding.

In both of these cases, the second caveat (claiming the same interest as the caveat that had already been removed), should never have been lodged.

Although it seems clear to me that neither of the caveats in question should have been lodged, and when requested to be removed, the caveats should have been removed without the need for proceedings, this didn't occur. 

As readers will know, if a Victorian practising lawyer lodged a second caveat in these circumstances, that would amount to professional misconduct, rendering the lawyer liable to be dealt with by the Victorian Legal Services Board + Commissioner.

As noted, the Court in Jankovic made an order for indemnity costs, on the basis that the registered proprietor of the property ought not be out of pocket as a result of the conduct of the caveator in lodging a caveat in circumstances where it should never have been lodged, and then refusing to remove that caveat.

  

W G Stark

Hayden Starke Chambers