A recent VCAT decision of Victorian Legal Services Commissioner v Fatoum Souki a solicitor, handed down on 17 June 2022 highlights some of the pitfalls for lawyers who involve themselves in improperly lodging a caveat. In this case, the solicitor Ms Souki was acting for parties in dispute with a party who owned land and the clients had enquired of their solicitor whether it would be possible to lodge a caveat over land owned by the party they were in dispute with. Both Ms Souki and a barrister her firm engaged for the clients advised them that they did not have a caveatable interest. This advice did not please the clients.
Ultimately, the landowner sought to sell the land and in a panic the clients put pressure on their solicitor Ms Souki to lodge a caveat for them. The solicitor decided to placate the clients by providing them with the form to lodge a caveat themselves. Unfortunately for the solicitor, she provided the clients with a caveat lodgement form which provided her address as the address for correspondence regarding the caveat. Ultimately it was found that the parties did not have grounds to lodge a caveat, and the solicitor was required to pay large fines and suffer a suspension of her practicing certificate. All of this could have been avoided had the solicitor remained firm in her position that the clients did not have grounds to lodge a caveat and had she not provided them with the form to lodge a caveat themselves.
What Are Some Grounds That You Can Lodge a Caveat Over Land?
Typical grounds which may provide a party the right to lodge a caveat are where a party seeking to lodge a caveat has evidence showing they contributed money to the purchase of the property or to its improvement, such as by funding renovations or evidence that they paid the mortgage for a period. Merely being in a dispute with a party who owns land, whether it be a business dispute or a marital dispute, is not sufficient grounds to lodge a caveat. Lodging a caveat in cases where there are insufficient grounds to maintain a caveat is a high stakes game that can quickly become expensive and embarrassing, as shown by the decision in Souki,
Chiara Nicolaci – Solicitor– Matthies Lawyers
Should you wish to obtain advice regarding the imposition or removal of a caveat on land, please contact Matthies Lawyers for an obligation-free consultation or call +61 3 8692 2517 today.
Disclaimer: This article contains general information only and is not intended to be a substitute for obtaining legal advice.