A caveat will lapse in the circumstances set out in s 126 of the Land Title Act 1994 (Qld).Where a caveatee serves a notice on a caveator requiring the caveator to commence proceedings in a court of competent jurisdiction, those proceedings must be commenced within 14 days or the caveat will lapse (without such a notice, the proceedings must in any event be commenced within three months after the lodgement of the caveat).
Where a caveat has lapsed, and the caveator seeks to lodge a fresh caveat, the leave of the court is required under s 129 of the Land Title Act. Section 129(2) provides:
A further caveat with the same caveator can never be lodged in relation to the interest on the same, or substantially the same, grounds as the grounds stated in the original caveat unless the leave of a court of competent jurisdiction to lodge the further caveat has been granted.
In an application under that section, the court’s discretion is unfettered. The cases identify a number of relevant discretionary factors which may be applied by the court (though the court may take into account other relevant matters):
- A caveatable interest must be identified;
- Where the caveatable interest is in dispute, the party seeking to lodge the second caveat must show a serious question to be tried;
- Any explanation for allowing the original caveat to lapse;
- Where the caveatable interest is in dispute, the party seeking to lodge the second caveat must show a serious question to be tried;
- Any explanation for any delay in making the application for leave to lodge the second caveat; and
- The balance of convenience.
(see Rocky Point Holdings Pty Ltd v TEB Enterprises Pty Ltd (2023) 13 QR 465 at [23]-[24] (Davis J).)
The decision in Zeno Entertainment
In Zeno Entertainment Pty Ltd v Kumar [2025] QSC 185, Bowskill CJ considered an application to lodge a further caveat where earlier caveats had lapsed. The caveats had lapsed owing to an oversight on the part of the plaintiff’s solicitor.
Her Honour found that there was no caveatable interest in this case and considered therefore that the threshold had not been met, and there was no need to consider other factors.
The plaintiff relied upon a clause in a joint venture agreement that it argued was an enforceable charge against the assets of the defendants. The Chief Justice dealt with this argument in two ways:
(1) First, it was held that a subsequent settlement agreement brought the earlier joint venture agreement (containing the alleged charging clause) to an end, relying on the decision of Brown J (as she then was) in Reel Action Sports Fishing Pty Ltd v Marine Engineering Consultants Pty Ltd (In Liq) (2022) 13 QR 297 at [39]. What was particularly decisive in Zeno was the fact that the agreements dealt substantively with essentially the same subject matter and the settlement agreement was expressed to exist for a substantial period of time and expressly stated that it superseded earlier agreements “related to its content”.
(2) Secondly, and in any event, the court found that the relevant clause in the joint venture agreement did not create an enforceable charge. That clause had provided that the guarantors “offer” their “assets” as security. That clause could be contrasted to more specific clauses in the agreement addressing charges, which were in more familiar terms to charge property.
The absence of an undertaking by the applicant
It was unnecessary for Bowskill CJ to consider the balance of convenience in light of those findings but her Honour emphasised that the absence of an undertaking as to damages from one or more of the directors of the plaintiff company would have been a factor weighing the balance in favour of the defendants. The evidence was that the plaintiff was a $2 companyand it had not responded to requests for information about its financial capacity from one of the defendants.
Other cases where an undertaking has been found to be important in the context of applications to lodge fresh caveats include Re McKean’s Caveat [1988] 1 Qd R 524 at 527 (Ryan J) and Re South Brisbane Motors Pty Ltd’s Caveat [1981] Qd R 416 at 419 (Dunn J).
One further issue which may arise in similar cases concerns what “prejudice” the court may consider in its consideration of the discretionary factors.
The oft-cited decision of Chesterman J in Oversea-Chinese Banking Corporation Ltd v Becker [2004] 1 Qd R 409 suggests that a caveatee on a s 129 application is limited to the prejudice between lapse and the new caveat (as opposed to the prejudice generally of the caveat itself).
However, it is important to note that in that case, Chesterman J was specifically speaking of a case where the caveatable interest was plain, rather than arguable. In the latter case, as Chesterman J said at [18]:
“If the grounds for lodging the caveat are arguable rather than plain, questions of the balance of convenience between caveator and caveatee must be addressed as they are in applications to remove caveats.”
Thus, where a respondent is able to establish that the caveatable interest is merely arguable, the broader approach to prejudice should apply. That, I suggest, is consistent with the decision in Landlush v Rutherford [2003] 1 Qd R 236 at [18] (Wilson J).
