(1) Any settlor of
land or beneficiary claiming under a will or settlement, or any person
claiming to be interested at law or in equity, whether under an agreement, or
under an unregistered instrument, or otherwise howsoever in any land, may
lodge a caveat in the Lands Titles Registration Office:
(a)
Purpose of caveat
a caveat may—
(i)
prohibit absolutely the registration or recording of any
instrument dealing with the land; or
(ii)
provide that the registration or recording of an
instrument dealing with the land may only occur subject to the claim of the
caveator, and provided that, if any conditions are expressed in the caveat,
the instrument complies with those conditions;
(ab)
Instrument subject to claim of caveator
if a caveator lodges a caveat providing that the registration or recording of
an instrument dealing with land will be subject to the claim of the caveator,
any instrument dealing with that land registered or recorded after the
lodgement of the caveat will be taken to be registered or recorded subject to
that claim;
(ac)
Form of caveat
a caveat must—
(i)
be in the appropriate form; and
(ii)
be executed by the caveator or his or her agent; and
(iii)
contain an address within South Australia to which
notices may be sent or at which proceedings may be served; and
(iv)
contain information (if any) prescribed by the
regulations for the purposes of this paragraph;
(b)
Registrar-General to make memorandum of receipt
upon the receipt of a caveat the Registrar-General shall make a memorandum
thereon of the date and hour of the receipt thereof, and shall enter a
memorandum thereof in the Register Book, and shall forthwith send a notice of
such caveat through the post office to the person against whose title such
caveat shall have been lodged, directed to his or her address appearing in the
Register Book;
(c) Not
to register or record instruments contrary to caveat
so long as a caveat remains in force, the Registrar-General must not, contrary
to the requirements of the caveat, register or record an instrument affecting
the land in respect of which the caveat has been lodged; except that despite
the receipt of a caveat, the Registrar-General must, subject to the other
provisions of this Act, proceed with and complete the registration or
recording of any instrument affecting the land produced for registration or
recording before the lodgement of the caveat in the Lands Titles Registration
Office;
(d)
Persons interested may summon caveator
the registered proprietor or any other person claiming estate or interest in
the land may, by summons, call on any caveator, including the
Registrar-General, to attend before the Court to show cause why the caveat
should not be removed; and the Court may, after allowing the parties a
reasonable opportunity to be heard, make such order as appears just in the
circumstances; (if the caveator does not appear in response to the summons,
the Court may, if satisfied that the summons was duly served, proceed to hear
and determine the application in the caveator's absence);
(e)
Caveatee may apply to have caveat removed
the caveatee may, except when the caveat is lodged by a settlor, or by a
beneficiary under a will or settlement, or by the Registrar-General under
Part 19 of this Act, make application in writing to the Registrar-General
to remove the caveat, and shall in such application give an address in South
Australia to which notices or proceedings relating to the caveat may be sent,
and the Registrar-General shall thereupon give twenty-one days' notice in
writing to the caveator, requiring that the caveat be withdrawn;
(f) Mode
of removing or discharging caveat
the Registrar-General shall, after the lapse of twenty-one days from the
posting of such notice to the address mentioned in the caveat, or of such
extended time as may be ordered by the Court, remove the caveat from the
Register Book by entering therein a memorandum that the same is discharged;
(fa)
Action to establish validity of claim
a caveator may bring an action in the Court to establish the validity of the
claim on which the caveat is based;
(g)
Caveator may apply to Court for order to extend time
the Court may, on the caveator's application, extend the period of
21 days until an action under paragraph (fa) is determined or for
any other period;
(h) May
withdraw caveat: But Court may order payment of costs
any caveator may, by notice in writing to the Registrar-General, withdraw his
or her caveat at any time; but the Court may, notwithstanding such withdrawal,
order payment by the caveator to the caveatee or other person interested of
any costs incurred by the caveatee prior to the receipt by him or her of
notice in writing of the withdrawal of the caveat;
(i)
Entry to be made
an entry shall be made by the Registrar-General in the Register Book of any
order made by the Court relating to any caveat, or of the withdrawal, lapse,
or removal of any caveat;
(j)
Caveator, except Registrar-General, liable to make compensation
any caveator other than the Registrar-General who shall have lodged or refused
or neglected to withdraw any caveat wrongfully and without reasonable cause,
shall be liable to make compensation to any person who may have sustained
damage thereby, and such compensation may be recovered by action: Provided
that, if proceedings shall have been taken in the Court by the caveatee or
other person interested, the amount of such compensation may be assessed by
the Court acting in the same proceedings; or the Court may direct an action to
be brought to ascertain and recover such amount;
(k) Not
to lodge further caveat without permission
it shall not be lawful for any caveator other than the Registrar-General, or
for anyone acting on behalf of such caveator, to lodge a further caveat
relating to the same matter without the permission of the Court;
(l)
Court may order costs if caveat by Registrar-General is removed by Court
where any caveat lodged by the Registrar-General shall be removed by the
Court, such Court may order the costs sustained by the person at whose
instance such caveat was removed to be paid out of the estate on behalf of
which such caveat was entered.
(2) Despite
subsection (1), the Registrar-General may, after a caveat has been lodged
in accordance with this section, register or record in respect of the land to
which the caveat applies—
(a)
another caveat or instrument that has the effect of a caveat; or
(b)
another instrument of a kind prescribed by the regulations, unless the
registration or recording of that instrument is specifically prohibited by the
lodged caveat.
(3) To avoid doubt, a
registered proprietor of land may lodge a caveat under this section in respect
of land for which he or she is the registered proprietor.
(4) In this
section—
"record" means make a record in the Register Book.