6 - Topic 2 - Native Title

Caveat Claim Requirements

• Particulars Required:

  • Nature of estate or interest claimed.

  • Facts of the claim and how it is derived from the registered proprietor.

  • If based on a written agreement, details of the agreement including nature, date, and parties.

  • If claiming as mortgagee, a statement of the debt amount or its nature.

Electronic Conveyancing National Law (NSW)

• Adoption: Adopted by the Electronic Conveyancing (Adoption of National Law) Act 2012.

• Lodgment Requirement:

  • Effective July 1, 2018, caveats must be lodged electronically via networks like PEXA.

Participation Rules under National Law

• Registrar's Powers:

  • The Registrar can set participation rules for electronic lodgment networks covering eligibility and obligations.

• Electronic Certification:

  • Participation Rule 7.10.1 mandates that subscribers provide specified certifications when digitally signing registry instruments.

Certification Rules

• Key Clauses:

  • Certifier verifies caveator’s identity.

  • Certifier holds a completed Client Authorization for the transaction.

  • Retention of supporting evidence for the documents.

  • Ensures compliance with relevant laws and prescribed requirements.

Responsibilities of the Certifier

• Defined Role: A Subscriber authorized to use an electronic lodgment network for transactions on behalf of another.

• Character Requirement: Must maintain good character; corporate entities can satisfy this if a director is a licensed conveyancer.

Deficiencies in Caveat and Certification

• Identified Shortcomings:

  1. Lack of specific facts about the claim, including written or oral nature of agreements.

  2. Absence of stated debt amount or nature.

  3. Insufficient inquiry by the Conveyancer regarding the caveator's claim validity.

  4. Misleading certifications regarding compliance with regulations.

  5. Failure to retain documentation related to the claim.

Interpretation of Representations

• Conveyancer's Knowledge: Statements made "to the best of knowledge" imply a proper inquiry into the land interest.

• Case Reference: Following Australian Securities and Investments Commission v Vines, those making formal representations must ensure reliability.

Consequences of Negligence

• Court Findings:

  • The Conveyancer's actions indicated a failure to adhere to expected standards, resulting in wasted court resources and legal costs for the opposing party.

• Potential for Disciplinary Action: Initial considerations for referral to NSW Fair Trading for potential action against the Conveyancer.

Conveyancer's Response and Education

• Personal Acknowledgment: The Conveyancer admitted to failing to gather adequate documentation and understanding of caveat processes.

• Commitment to Improvement: Undertook to attend further education regarding electronic lodging of caveats.

Conclusion and Court's Perspective

• Importance of Competence: As the system shifts to electronic platforms, the role of qualified individuals in conveyancing becomes critical.

• Community Expectations: Accurate representations are essential to prevent unnecessary disruptions and to maintain the integrity of the legal processes involving caveats.

• Caution Against Misfilings: The case serves as a reminder that proper investigation and adherence to legal standards are paramount to avoid similar issues.