Caveat Removal Proceedings

Caveat Removal Proceedings


BRISBANE LAWYERS

AITKEN WHYTE LAWYERS BRISBANE – LITIGATION AND DISPUTE RESOLUTION LAWYERS AND SOLICITORS FOR BRISBANE, QUEENSLAND

Real Experience – Court Orders Removal of Caveat

Aitken Whyte Lawyers have significant experience in property disputes and the removal of caveats.

The following article is an example of where we successfully represented a Defendant on an application in the District Court of Queensland to remove a caveat lodged on the title on their property.

Prior to commencing Court proceedings, the Plaintiff had lodged a caveat over the title of a property owned by our client, the Defendant. The Plaintiff and other side in the matter was a solicitor.

The grounds of the caveat were alleged to be a charging clause in a loan agreement between the Plaintiff and the Defendant.

The Plaintiff made similar allegations in the Statement of Claim filed in the Court proceedings, that:

  • there were loan agreements between the Plaintiff and the Defendant; and
  • the Defendant agreed to charge the property to the Plaintiff for any amounts owing under those loan agreements.

The Defendant applied to Court to remove the caveat, pursuant to section 127 of the Land Title Act 1994 (Qld).

A major factor in the application was whether or not the Plaintiff had a caveatable interest in the property.

There was an issue with the alleged charging clauses in the purported loan agreements. There was no evidence of the charging clauses being signed by, or with the written authority, of the Defendant.

Sections 11 and 59 of the Property Law Act 1974 (Qld) have certain requirements for dealings with real property (such as land) as compared with personal property. Broadly speaking, contracts relating to land, including charging clauses, should be in writing and signed by the parties. The provisions are not new – they are based on the historical Statute of Frauds.

In this case, the Plaintiff did not have an arguable case of a caveatable interest in the property. This was due to there being:

  • no evidence before the Court of the Defendant having signed a document granting a charge over the property; and
  • no evidence of a written authority of someone signing on her behalf.

Applications to remove a caveat are often determined on the balance of convenience. However, with the Plaintiff having no caveatable interest in the property, there was no need for the Court to consider the balance of convenience in deciding to remove the caveat.

In this case, the Court determined that the Plaintiff’s caveat should be removed, and made such an order.

The Court also made an order of indemnity costs in favour of the Defendant, meaning our client could recover all of their reasonable costs of the application against the Plaintiff. To see our article on applying to remove caveats, click here.

Focused on Results

It is essential you have experienced solicitors when dealing with an application to remove a caveat over your property. If a Claim has been brought against you and the Plaintiff has taken steps to secure their interests, our Dispute Resolution Team will make sure your rights are protected.

Aitken Whyte Lawyers Brisbane are focused on results. Our solicitors can assist you with all property and caveat disputes. Call today to discuss your needs.

Office Location and Contact Details

Brisbane

Aitken Whyte Lawyers Brisbane
2/414 Upper Roma Street
Brisbane QLD 4000

Ph: 07 3229 4459
Fax: +617 3211 9311
E: enquiries@awbrisbanelawyers.com.au





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