A caveat is in the nature of an injunction. In WA, it is
generally lodged on a certificate of title to prevent certain
dealings in the land or notify the public of the caveator's
interest that affects the land.
The caveat itself does not create an interest - it should only
be lodged where the caveator has an underlying interest that is
sufficient to support the lodgement of a caveat.
There are three types of caveats that can be used in WA. The
caveat used will act as a statutory injunction preventing the
registration of instruments, either:
absolutely (absolute caveat)
until after notice is given to the caveator (notice
unless the instrument registered is expressed to be subject to
the claim of the caveator (subject to claim
Lodgement of a caveat is a relatively simple process. The main
requirements are for the caveat to expressly set out the nature of
the estate or interest claimed, and for it to be in the correct
form and supported with the necessary evidence.
However, in Western Australia (and also in other states and
territories including New South Wales, Victoria, Tasmania and the
ACT) a person who lodges a caveat without reasonable cause is
liable to pay compensation to any person who suffers loss as a
It is therefore important to first determine whether the
interest sought to be protected is sufficient to justify the
lodgement of a caveat. If it is, the type of caveat used must not
be overly burdensome, having regard to the interest sought to be
protected. For example, a tenant who has lodged a caveat over the
tenanted property would generally only lodge a 'subject to
claim' caveat, as this is all that is necessary to protect
their leasehold interest. Lodgement of an absolute caveat in these
circumstances could be challenged and expose the caveator to an
action for compensation.
If the interest is not sufficient to support the type of caveat
chosen and a court orders its removal, a corrected replacement
caveat only takes effect from the date it is lodged, not when the
original caveat was lodged. Competing interests may have been
registered or protected by caveat in the interim, taking priority
over the interest the subject of the caveat that was wrongly
Careful consideration should therefore be given to ensure the
caveat lodged does not extend beyond the legitimate claim of the
This publication is intended as a general overview and
discussion of the subjects dealt with. It is not intended to be,
and should not used as, a substitute for taking legal advice in any
specific situation. DLA Piper Australia will accept no
responsibility for any actions taken or not taken on the basis of
DLA Piper Australia is part of DLA Piper, a global law firm,
operating through various separate and distinct legal entities. For
further information, please refer to www.dlapiper.com
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This decision may open the way to more challenges against determinations of construction payment disputes by adjudicators.
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