A Priority Notice (PN) is effective for 60 days from the date of its lodgment and will prevent registration of dealings or plans not listed on the PN except for the following (see Effect of PN s74W(2) Real Property Act 1900):
(a) dealing in registrable form that was lodged before the notice,
(b) the dealing or dealings to which the notice relates,
(c) a caveat or the withdrawal or lapsing of a caveat,
(d) a vesting or dealing effected in accordance with an order of a court or a provision of a law of this State or the Commonwealth,
(e) an application made under section 93 by an executor, administrator or trustee in respect of the estate or interest of a deceased registered proprietor, (Transmission Application)
(f) an application 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,
(g) an application under section 101, (Notice of Death)
(h) in relation to a mortgage, charge or covenant charge recorded or lodged in registrable form before the lodgment of the notice—a dealing effected by the mortgagee, chargee or covenant chargee in the exercise of a power of sale or other power or a right conferred by the mortgage, charge or covenant charge or by or under law, (i.e Discharge of Mortgage or Transfer Under Power of Sale)
(i) in relation to a lease recorded or lodged in registrable form before the lodgment of the notice—a dealing effected by the lessee pursuant to a right conferred by the lease or by or under law
(j) a transfer giving effect to a sale under a writ recorded under section 105 before the lodgment of the notice.
Staff processing information
Where the dealing or dealings to which the notice relates are lodged, examining officers must examine the details listed in the PN carefully because all data must match.
If in order and:
- If there are more dealings in the case than in the PN then register and remove PN. i.e Documents listed in the PN are Discharge of Mortgage and Transfer and dealings lodged are Discharge of Mortgage, Transfer and Mortgage.
- If there are less dealings in the case than in the PN then send letter/requisition. i.e Documents listed in the PN are Discharge of Mortgage, Transfer and Mortgage and dealings lodged are Discharge and Transfer.
Any discrepancy between the details as set out on the PN and the lodged dealings must be referred to the Senior Examining Officer.
Send Notice to the lodging party.
- If the details in the dealings don’t match with the PN (s74W(3)(b) Real Property Act 1900 or
- where a PN is recorded on the Register and prevents registration of an incoming dealing.
Where a dealing is held up by a PN and a Caveat is lodged, submit the case to DRD2 for determination of priority between the Caveat and the unregistered dealing.
Where competing PNs are recorded by different parties protecting interest in the same land title, priority will be determined by the lodgment order of the PNs.
Removal of PN:
- The person who lodged the PN may withdraw it. See Withdrawal of PN
- The PN will be removed from the title after it expires or where the proposed dealings in the PN are registered or withdrawn or rejected.
- s74X(2) Real Property Act 1900 gives the power to the Registrar General to remove any PN that ceased to have effect or does not relates to the land specified or the dealing or dealings to which the notice relates are unlikely to be lodged or recorded in the Register before the notice ceases to have effect, or the person who lodged the notice has not provided the evidence required under s74T(5)
- s74Y Real Property Act 1900. An application to the Supreme Court may be made by a person claiming an estate or interest in the land described in the PN for an order to the person who lodged it to withdraw the PN.
Consent to dealing or plan by person who lodged the PN
Section 74W(1) Real Property Act 1900 - 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, the Registrar-General must not, without the consent of the person who lodged the notice, register or record:
(a) any dealing or writ on the folio of the Register for the land, or
(b) any plan (including a plan to which section 88B of the Conveyancing Act 1919 applies) relating to the land.
The person who lodged the PN may consent to the registration of a dealing or plan which is prohibited by the PN.
The consent must be in writing, signed dated and addressed to NSW Land Registry Services.
The consent must be absolute without any qualification and the details clearly stated as to:
- The reference to title.
- The dealing number of the PN
- The full name of the person who lodged the PN
- Reference to the dealing type or plan and dealing or plan number being consented to if available.
- The name of the parties to the consenting instrument(s)
The consent will be filmed with the affected instrument(s).