By Kye Tran-Tsai and Benjamin Adams -
Snapshot
- Legal practitioners play an important role in ensuring that unmeritorious caveats are not lodged.
- In a recent case, a conveyancer failed to advise and make inquiries to determine whether her client had a good and valid claim in the subject land, thereby causing her to make certifications the Court found to be untrue and misleading.
- Practitioners must understand the significance of making certifications under the Participation Rules. There is no lesser obligation on the practitioner to advise their client when lodging a caveat electronically than on paper.
PEXA is an electronic lodgment network (‘ELN’) used by subscribers to that network to prepare, settle and lodge land transactions online. From 1 July 2018, in NSW all stand-alone caveats lodged by legal practitioners must be lodged using an ELN, subject to certain exemptions and waivers.
The recent decision of Guirgis v JEA Developments Pty Ltd [2019] NSWSC 164 (‘Guirgis’) is a key reminder to all subscribers lodging a caveat in an ELN that a caveat may only be lodged in respect of a ‘caveatable interest’, being a ‘proprietary’ interest at law or in equity, in respect of the land pursuant to section 74F of the Real Property Act 1900 (‘RPA’).
It is also authority for the proposition that there is no lesser obligation on a practitioner to advise their client when lodging a caveat through an ELN instead of on paper.
