A caveat will lapse pursuant to s74H(6), (7) Real Property Act 1900 when the estate or interest claimed by the caveator vests in the caveator upon registration of a dealing. A caveat affecting several folios of the Register may be lapsed as regards less than all the folios.
Partial satisfaction of a caveator's interest or claim is not sufficient to warrant the lapsing of the caveat. For example, a registered caveat against premises being shops 1 and 2 etc claiming interest pursuant to an unregistered lease of shops 1 and 2 will not lapse upon registration of a lease for shop 1 only. In this instance, the lease cannot be registered until a withdrawal of caveat is lodged, a caveator's consent is furnished, or the caveat is lapsed pursuant to s74I Real Property Act 1900 by a Preparation of Lapsing Notice form 08LX.
Where doubt exists as to whether the caveator's interest has been fully satisfied, the caveat will not be lapsed and a requisition will be raised on the conflicting dealing. For example, a caveat claiming pursuant to an equitable mortgage dated 1.1.1989 will not lapse upon the lodgment an undated mortgage in favour of the caveator as there is no certainty that the mortgages are one and the same.
Note A caveat claiming pursuant to a dated loan agreement cannot be lapsed upon lodgment of a similarly dated mortgage. They will be treated as different interests unless notified otherwise.
Staff processing information
Where a caveator's consent is lodged with a dealing that can lapse the caveat, a 28 Day Notice of Intended Registration form 10-0180 must be sent indicating that the dealing will be registered and the caveat will remain on the Register unless a written direction is received to lapse the caveat on registration of the dealing.
If no response is received by the due date, register the dealing (caveator consented). A copy of the 28 Day Notice of Intended Registration and the caveator's consent must be filmed with the dealing.
Note A caveat by GE Personal Finance Pty Limited (formerly Avco Financial Services Limited) claiming pursuant to an unregistered mortgage or charge cannot be lapsed unless the incoming mortgage or charge is accompanied by a letter stating that the caveat may be lapsed. Otherwise a requisition 'Caveat [dealing number] by GE Personal Finance Pty Limited is noted on the Register' will be sent.
Caveator's consent lodged with dealing
Where the caveator's consent is furnished with a dealing that would lapse the caveat pursuant to s74H(6), (7) Real Property Act 1900 a 28 Day Notice of Intended Registration form 10-0180 must be sent to the lodging party requesting written direction:
- to lapse the caveat upon registration of the dealing or
- to leave the caveat on the Register and register the dealing.
If no response is received by the due date, the caveat will not be removed and the dealing will be registered. A copy of the 28 day Notice of Intended Registration and the caveator's consent must be attached to the dealing for microfilming purposes.