Everbow Goodwin [2006] NSWSC 360

In this case the mortgagee issued lapsing notices against two caveats on title so it could settle a power of sale. The caveators provided withdrawals of caveat to the mortgagee and then sought to extend the operation of those same caveats.

The explanation for this bizarre behaviour was that they believed the priorities as between them would be altered if the caveats were lapsed rather than being withdrawn. The court without explaining why found this to be unfounded and the extension sought futile and so dismissed the application with costs.

In fact the priorities between two parties are never determined by the caveats. Rather the rule is first in time prevails unless there has been postponing conduct and failure to caveat may be such postponing conducts as it misleads the subsequent charge holder. Once both competing interests holders are aware of one another (and both have lodged caveats) the existence or non-existence of the caveats as between them is immaterial.

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