Caveat Olim Regis: Registrar's Caveats and their consequences

Registrar's Caveats, previously referred to as "King's" or "Queen's" caveats, are a rare but powerful caveat, lodged at the Registrar of Titles' discretion, under s 106 of the Transfer of Land Act 1958 (Vic) to:

• prohibit any transfer or dealing with any land registered in the name of a minor or person of unsound mind;
• prohibit dealings with any land in any case in which it appears that an error has been made through land misdescription or otherwise in any folio of the Register; or
• prevent any fraud or improper dealing.

To this end, Registrar's Caveats are often used to notify the general public that a parcel of land has been:

• permanently reserved from sale, to be used for a particular purpose; and
• alienated to trustees under a restricted Crown grant in fee simple made under the Land Act 1958 or a previous, corresponding Act,

These matters aren't necessarily apparent from the Victorian Titles Register - further due diligence, advice and searches are needed, especially of the Victoria Government Gazette.

Broad discretion and impact

The Registrar has a very broad discretion about whether or not to record a Registrar's Caveat.

They may apply to any Torrens title land in Victoria held under a folio of the Register, and are not time limited, so long as one or more of the qualifying criteria from s 106(1) of the Transfer of Land Act 1958 continues to be met.

For example, a Registrar's Caveat may prevent registration of a transfer or other dealing with any part of a parcel of permanently reserved Crown land by a registered proprietor holding the estate in fee simple in a trustee capacity, until such time as a special Act of Parliament is passed lifting or partially lifting the permanent reservation.

Risks

Registrar's Caveats are rare and unusual. The main disadvantages relating to Registrar's Caveats are that an application to record a Registrar's Caveat on a folio of the Register generally requires lengthy preparations and detailed supporting evidence with no guarantee of success, they are lodged at the sole discretion of the Registrar, and there is no caveator's consent procedure for authorising lodging of competing dealings with the land, in contrast to the consent process applicable for ordinary caveats under s 89 of the Transfer of Land Act 1958.

Reluctance to fetter discretion

Courts are reluctant to interfere with the Registrar's discretion to lodge and remove caveats. In Paparua County v District Land Registrar,[1] the Court heard an application by a person 'aggrieved' by the Registrar's refusal to record a Registrar's Caveat on their behalf. The Court held that administration of the equivalent provision to section 106 should be left to the Registrar's discretion, and refused to make an order.

Removal

Removal is also at the Registrar's discretion, and may not occur without an application. For example, in preparation for delivery of the now defunct 2026 Commonwealth Games, a Registrar's Caveat that had been in place over land since the 19^th Century was removed from the Crown grant folio for the Delacombe saleyards, following revocation of the permanent reservation from sale that had underpinned the Registrar's Caveat via a statutory process. This Registrar's Caveat had prevented re-development and inhibited alienation of interests in the site, despite Council having moved livestock sales to a more modern facility five years earlier.

History in Victoria

The Transfer of Land Statute of 1866 implemented the Torrens title system in Victoria. The Registrar was given the power to record Registrar's Caveats by s 129(III), which is largely equivalent to the modern provision, though some of the more anachronistic notions have been removed. For example, Registrar's Caveats are no longer available for those suffering the 'disability of … absence from Victoria'!

It is now possible to apply to the Registrar to have a Registrar's Caveat applied or removed under ss 106(1) and (3) of the Transfer of Land Act 1958 respectively, using the ‘Residual Document Application to request action by the Registrar – Registrar’s Caveat – Transfer of Land Act section 106,’ via an Electronic Lodgement Network such as PEXA. The application must:

• confirm that worthy facts and circumstances exist as outlined in s 106 of the Act, which demonstrate:
  • the grounds of the application; and
  • the basis for the application, including that the requester is not themselves in a position to lodge a caveat under s 89 of the Act, because the requester does not have a proprietary interest in the subject land; and
• feature suitable supporting documentation, which may include a court order in the removal scenario.

VGSO provides responsive legal advice and services exclusively for the Victorian Government and its statutory authorities, and we have extensive experience with dealings with land in the public context. Dealings with Registrar's Caveats are reasonably uncommon. Seeking specialist legal advice is highly recommended. If your department or agency needs advice, including about a Registrar's Caveat, please reach out to us.