Jensen v Bank of Queensland [2011] NSWCA 71

Different caveats were lodged by different persons including the owner to prevent the sale of property by a mortgagee. The mortgagee successfully sought their removal and an order that the Registrar-General not accept any caveats lodged until the property was transferred to the purchasers. The owner appealed.

The appeal court found that the trial judge did have power to make the order given. Although section 74F of the Real Property Act says that any person claiming to be entitled to a legal or equitable interest in land may lodge a caveat, and section 74H specifies the effect of a caveat when lodged, section 36(1B) makes it clear a caveat is not lodged until the Registrar General allots to it a distinctive reference, and section 36(1A) makes it clear that this only happens when the Registrar General accepts the caveat. Under section 36(1C), the Registrar General may refuse to accept the caveat if it does not comply with any requirements made by the Real Property Act or any other Act. An order made under section 74MA(2)(b) having the effect that the caveat is not to be accepted would have the effect that the caveat does not comply with a requirement made under the Real Property Act. An alternative order that the Court might make is to require the Registrar General to reject caveats likely to affect the Bank’s exercise of its power of sale, unless they state the manner in which the interest has been derived from the Bank. However, in the particular circumstances of this case, a wider order was justified.

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