Australia: Good things happen when you get your priorities right – NSW gets priority notices for electronic conveyancing

A priority notice provides an inexpensive and simple way of preventing new legal interests in the land being registered prior to registration of the relevant dealing on the title for land.

If you've engaged in any conveyancing in NSW recently, you will have noticed the extra layers of security information we must collect to meet NSW's Verification Of Identity regulations. In a further move to protect those parties dealing in land and fight real estate fraud, a new document you will be hearing about when you next try to buy, sell or otherwise transfer property is a priority notice.

The Real Property Amendment (Electronic Conveyancing) Act 2015 introduces a number of significant amendments to the Real Property Act 1900 (RPA) as part of the national transition to electronic conveyancing.

New part 7B of the RPA will come into effect on 1 October 2016 enabling a person who intends to lodge a dealing, to give effect to a legal or equitable interest in land, to lodge a priority notice. A priority notice will only be available for electronic lodgement through the PEXA platform. It is anticipated that PEXA will be able to accept lodgement and withdrawal of priority notices by 31 October 2016.

What is a priority notice?

Priority notices are designed to remove the risk of the registration gap between settlement of a transaction and registration and also to reserve a title for a forthcoming settlement.

A priority notice, once lodged, alerts all interested parties who search the Register to the fact that the lodgement of a conveyancing transaction is imminent.

Duration of effectiveness

A priority notice is effective for 60 days. This period can be extended (once only) for an additional 30 days if the application for extension is made while the priority notice is in force.

The priority notice will be removed from title after it expires and will have no further effect. Any subsequent priority notice lodged by the same party will have effect only from its lodgement date and will not be connected in any way to former priority notices.

Can I still deal with the land if a priority notice has been lodged?

Our answer to this is "maybe".

The Registrar General must not register any dealing or any plan while a priority notice has effect with respect to a proposed dealing to give effect to an entitlement to an estate or interest in land, without the consent of the person who lodged the priority notice.

In practical terms, a document can still be lodged notwithstanding the presence of the priority notice, but it will sit as unregistered until such a time as the priority notice expires or otherwise lapses.

However registration of the following dealings would not be prevented by a priority notice:

  • a dealing in registrable form that was lodged before the priority notice;
  • the dealing or dealings to which the priority notice relates;
  • a caveat or the withdrawal or lapsing of a caveat;
  • a vesting or dealing effected in accordance with an Order of a Court or a provision of law;
  • an application made under section 93 by an executor, administrator trustee in respect of the estate or interest of a deceased registered proprietor;
  • an application made under section 12 of the Trustee Act 1925 or an order of a court or dealing which, in the opinion of the Registrar General, effects or evidences a replacement of existing trustees or the appointment of new or additional trustees;
  • an application made under section 101 in relation to the registration of a survivor of joint proprietors;
  • a dealing effected by a mortgagee, chargee or covenant charge in the exercise of a power of sale or other power or conferred right where the mortgage, charge or covenant charge was recorded and lodged in registrable form before the lodgement of the priority notice; and
  • a dealing effected by a lessee pursuant to a conferred right where the lease was recorded or lodged in registrable form before lodgement of the priority notice.

Should I lodge a caveat or a priority notice?

Unlike a caveat, there are no restrictions on lodging a further priority notice when the earlier one lapses unless the Supreme Court makes an order to this effect. A further difference is that a registered owner of the property is not notified of the lodgement of a priority notice unlike a caveat.

In deciding whether to register a caveat or a priority notice it is prudent to consider the settlement period given that a priority notice will lapse in 90 days and the caveat will only lapse in accordance with the lapsing procedures set out in section 74J of the RPA.

Priority notices do not replace caveats and cover a narrower field of interests i.e. interests which arise pursuant to dealings intended to be registered. There is nothing in the RPA which prevents a purchaser or incoming mortgagee from lodging both a caveat and a priority notice.

What happens when another party has lodged a priority notice?

Where competing priority notices are recorded by different parties claiming interest in the same land then it is anticipated that priority would be determined by lodgement order of the priority notices.

Do other jurisdictions have priority notices?

Priority Notices can currently be lodged in Tasmania, Queensland and South Australia. Other jurisdictions are now considering implementation of priority notices.

Cessation of priority notices

The person who lodged the priority notice may subsequently withdraw it.

A person with an interest in the land in relation to which a priority notice is in force may make an application to the Registrar General to have the priority notice cancelled. If satisfied that the priority notice purports to protect the priority of an agreement that is unlikely to be recorded within 90 days of the priority notice being lodged, the Registrar General may cancel the priority notice.

When considering the priority notice, the Registrar General must give the person who lodged the priority notice written notice of the application and give them at least 10 days to respond.

A person who lodges a priority notice without reasonable cause or fails to withdraw a priority notice without reasonable cause may be liable to pay compensation to any person who sustains pecuniary loss attributed to the lodgement or refusal of withdrawal.

Should I lodge a priority notice?

Although the RPA does not compel lodgement of a priority notice, we expect that their use will come to be regarded as prudent, particularly given the delays which sometimes occur with banks registering their borrowers' transfers Maintaining a priority notice until the relevant dealing is registered on the title for the subject land may well prove to be a beneficial safeguard against new parties acquiring legal interest in the land and frustrating registration of the dealing the subject of a priority notice.

A priority notice provides an inexpensive and simple way of preventing new legal interests in the land being registered prior to registration of the relevant dealing on the title for land.

From an anti-fraud perspective, priority notices will flag impending transfers more systematically, enabling fraudulent activity to be prevented more easily.

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions