What must the court consider when examining whether or not a caveat should be removed…
Most often, parties who are owed money and have an interest in land generally, lodge a caveat over the land to secure that interest. However, the landowner sometimes needs the caveat removed.
When an application is made to remove a caveat, the onus is on the caveator (the party who lodged the caveat) to satisfy the court of two matters:
1. that there is a serious issued to be tried and until the final hearing of the issue, the caveat should remain on the title; and
2. the balance of convenience.
When considering the balance of convenience, the court weighs the relief the plaintiff seeks (for example, the extension of the caveat) against the harm that might be done to the defendant (for example, preventing him/her to finalise the sale of the property in question).
Mr Tony Jovanovski and Ms Beti Jovanoska entered into a Contract for Sale of land in late 2018 with T Square Investments Pty Ltd to transfer to the latter a property located at Wyndham Vale, Victoria. The purchase price of $6.5mil was to be paid by installments. Subsequently, T Square Investments Pty Ltd lodged a caveat over the Wyndham Vale property to protect its interest (“Caveat”).
After a default in the payment of one of the installments, Mr Jovanovski and Ms Jovanoska rescinded the contract in late 2019 and because it became apparent that the Caveat will not be removed, an application was made by them to the Supreme Court of Victoria for its removal.
Justice Cameron concluded that there was no serious issued to be tried because the Contract for Sale had been rescinded and therefore T Square Investments Pty Ltd had no interest in the land. His Honour further indicated that because of his finding on this issue, there was no necessity for him to look at the balance of conveyance.
In conclusion, Mr Jovanovski and Ms Jovanoska were successful in their application for the removal of the Caveat.
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