by Amy Lowry | Feb 9, 2026 | Insights
Caveats are a fundamental feature of Australian property law. They operate as a protective mechanism to preserve claimed interests in land and to prevent dealings being registered without notice to, and in many cases the consent of, the caveator.
While the concept is straightforward, the practical and evidentiary requirements can be exacting. Lodging a caveat without a proper caveatable interest, or without adequate supporting material, may expose a party to removal applications and potential claims for compensation. This article outlines (1) what a caveat is, (2) what constitutes a caveatable interest, and (3) why supporting documents are critical—illustrated by a Queensland Supreme Court decision in which Spire Law acted for the respondent.
What Is a Caveat?
A caveat is a statutory notice recorded on a property’s title which—depending on its terms—prevents the registration of certain dealings affecting the land. The word “caveat” derives from the Latin caveat (“let him beware”), reflecting its function as a warning that another party asserts an interest in the land.
In practical terms, once a caveat is recorded, the Titles Registry will generally not register a dealing that is inconsistent with the caveat unless the caveat is withdrawn, lapses, or is removed by court order (or as otherwise permitted under the relevant legislation). Caveats are commonly used to protect equitable interests, including interests arising from contracts, trusts, or equitable charges.
What Is a Caveatable Interest?
A “caveatable interest” is the legal or equitable interest that justifies the lodgement of a caveat. It is not sufficient to assert a mere personal claim against the registered owner. The claimed interest must be proprietary in nature (or sufficiently connected to the land) and capable of supporting a caveat under the applicable statutory scheme.
Common examples include:
- an equitable mortgage or equitable charge over the property;
- a purchaser’s equitable interest under a contract for the sale of land;
- a beneficiary’s interest under a trust; and
- a lessee’s interest under a lease (including certain unregistered lease interests).
Courts dealing with caveat removal applications commonly consider whether there is a serious question to be tried as to the existence of the claimed interest, and where the balance of convenience lies pending determination of the underlying dispute.
Case Study: DT & MF Holdings Pty Ltd v Ascendia Accountants (Noosa) Pty Ltd [2017] QSC 330
The Queensland Supreme Court’s decision in DT & MF Holdings Pty Ltd v Ascendia Accountants (Noosa) Pty Ltd [2017] QSC 330 provides a detailed consideration of caveatable interests, particularly in the context of an alleged equitable charge.
In that matter, Ascendia Accountants lodged caveats over six properties to protect its claimed equitable interest. The caveats were founded on a charging clause contained in a Letter of Engagement signed by the applicants. The applicants sought removal of the caveats, contending that the purported basis for the caveats was not legally effective.
Key issues included:
- whether the charging clause was capable of constituting an equitable mortgage or charge;
- whether the caveats were validly lodged on that basis; and
- whether the applicants’ arguments—such as the absence of a registrable mortgage for execution and alleged deficiencies in identifying the land—undermined the asserted interest.
The Court dismissed the application to remove the caveats, finding there was a serious question to be tried regarding the existence of an equitable mortgage/charge. The Court also noted factors relevant to the balance of convenience, including that the applicants had not paid money into court or provided an undertaking not to deal with the properties.
Spire Law acted for the respondent in successfully resisting the caveat removal application. The decision illustrates both the utility of caveats in preserving disputed property interests and the importance of careful drafting and evidentiary support.
Why Supporting Documents Matter
A caveat is only as strong as the interest it protects and the documents underpinning that interest. Supporting documentation should clearly articulate:
- the nature of the interest claimed (for example, equitable charge, purchaser’s interest, trust interest);
- the source of that interest (for example, contract, deed, charging clause, trust instrument); and
- the connection between the interest and the particular land (including accurate identification of the affected property).
Key practical considerations include:
- Clarity and precision: ambiguous drafting can invite challenge.
- Legislative compliance: documents should satisfy any formal requirements imposed by relevant legislation.
- Evidentiary coherence: the documentation should support a coherent, legally recognisable pathway from agreement/transaction to proprietary interest.
Deficiencies in supporting documentation may increase the risk of a caveat being removed and may expose the caveator to adverse costs consequences.
Risks and Strategic Considerations
Caveats can be highly effective, but they are not risk-free. Common issues include:
- lodging a caveat without a proper caveatable interest;
- overreaching (claiming an interest broader than the documents support);
- allowing a caveat to lapse due to procedural non-compliance; and
- responding inadequately to a lapsing notice or removal application.
When a caveat is challenged, the dispute often turns on both legal characterisation (what interest exists, if any) and evidence (what documents prove it).
How Spire Law Can Assist
Spire Law advises on the lodgement, maintenance, and removal of caveats, including urgent applications and complex property disputes involving equitable interests. The firm also assists with the preparation and review of documentation intended to create or secure interests in land, including charging clauses, security instruments, and related transaction documents.
For further information, contact Spire Law or visit our website.
by Amy Lowry | Feb 9, 2026 | Insights
Separating from a partner is often challenging—particularly when decisions must be made about property, debts and financial security. In Australia, family law property settlements are designed to achieve an outcome that is just and equitable for both parties, whether the relationship was a marriage or a de facto relationship.
Set out below is a general overview of how property settlements work, the key steps in the process, and how agreements can be formalised.
What Is a Property Settlement?
A property settlement is the process of dividing the parties’ assets, liabilities and financial resources after separation. It can include, but is not limited to:
- Real property (e.g. the family home, investment properties)
- Bank accounts, shares and investments
- Businesses and trusts
- Superannuation interests
- Vehicles, personal belongings and valuables
- Liabilities (e.g. mortgages, personal loans, tax debts, credit cards)
The objective is not to “split everything down the middle”, but to reach a division that is just and equitable in all the circumstances.
The Legal Framework
Property settlements are primarily governed by the Family Law Act 1975 (Cth). The legislation applies to:
- Married couples, and
- De facto couples (including same-sex couples) who meet the legislative threshold for jurisdiction.
A few key principles are worth noting:
- No automatic 50/50 division: Outcomes depend on contributions and future needs.
- Fairness is the guiding concept: The assessment is discretionary and fact-specific.
- Resolution without litigation is encouraged: Negotiation and dispute resolution processes are not only strongly supported by the framework, there are strict pre-action procedures that must be followed prior to commencing Court proceedings.
How Property Settlements Are Usually Approached (Step-by-Step)
While every matter turns on its facts, property settlements commonly follow a structured approach.
1) Identify and value the property pool
A complete list is prepared of all assets, superannuation and liabilities (whether held jointly or individually). Accurate valuations may be obtained by agreement or through independent experts (e.g. property valuers, forensic accountants, business valuers).
2) Assess contributions
The law recognises different types of contributions, including:
- Financial contributions: income, savings, inheritances, gifts, payments toward assets and living expenses
- Non-financial contributions: improvements to property, unpaid work in a family business
- Homemaker and parenting contributions: parenting, caregiving and domestic labour
3) Consider future needs (adjustment factors)
The assessment may take into account matters such as:
- age and health
- income and earning capacity
- responsibility for children or other dependants
- disparities in financial resources (including superannuation)
4) Confirm the outcome is “just and equitable”
Even where contributions and future needs have been assessed, the final step is to consider whether the proposed division is appropriate in all the circumstances.
Reaching Agreement (Without Going to Court)
Many property settlements are finalised by agreement. Common pathways include:
- Negotiation (directly or through representatives)
- Mediation / family dispute resolution (a structured process to narrow issues and reach practical outcomes)
Where agreement is reached, it should be properly documented and formalised to reduce the risk of later disputes.
How to Formalise a Property Settlement
A property settlement is typically formalised in one of two ways:
1) Consent Orders
An agreement can be filed with the Court for approval. Once made, Consent Orders are legally enforceable.
2) Binding Financial Agreement (BFA)
A BFA is a private contract that can finalise property division (and, in some cases, spousal maintenance) if it complies with strict legislative requirements.
Selecting the appropriate mechanism depends on the circumstances, including complexity, urgency, enforceability considerations and taxation/stamp duty implications.
If Court Intervention Is Required
If agreement cannot be reached, either party may apply for property orders. The Court will determine the division by applying the legislative considerations outlined above, based on admissible evidence and the particular circumstances of the parties.
What the Court Commonly Considers
In broad terms, the Court will look at:
- the nature and extent of the property pool
- contributions (financial, non-financial, homemaker/parenting)
- future needs and any significant disparity between the parties
- the length of the relationship and how assets were accumulated
- any material waste by any of the parties
- the practical needs of children and caregiving arrangements
- Any other financial resources
Common “Special Issues” in Property Settlements
Certain features can add complexity, including:
- Superannuation splitting: superannuation is treated as property and may be split by agreement or order
- Business interests and trusts: these often require specialist valuation and careful analysis of control and benefit
- Overseas property: additional procedural and enforcement considerations may arise
- Family violence: in some circumstances, the impact of family violence may be relevant to contributions and/or future needs
Time Limits (Limitation Periods)
Strict time limits apply:
- Married couples: applications for property adjustment generally must be commenced within 12 months after a divorce order takes effect
- De facto couples: applications generally must be commenced within 2 years of separation
Extensions are not automatic and may involve additional evidentiary and procedural requirements.
Moving Forward
A properly managed property settlement can provide clarity and financial stability after separation. Early identification of the property pool, careful documentation, and a structured approach to negotiation often assist in resolving matters efficiently and reducing conflict.
Spire Law regularly assists clients to negotiate, document and formalise property settlements, including matters involving complex asset structures, superannuation and business interests.
by Amy Lowry | Feb 9, 2026 | Insights
Conveyancing—the legal process of transferring property ownership—often appears straightforward. However, even routine transactions can give rise to significant legal and commercial risk if contractual obligations are not met, procedural requirements are overlooked, or disputes escalate.
Two recent Queensland decisions, Storey v Britton 2025 QSC 125 and Britton v Storey 2025 QCA 127, illustrate how quickly a property transaction can shift from “business as usual” to costly litigation. The cases highlight the importance of careful preparation, strict adherence to deadlines, and effective management of disputes once they arise.
Key Risks in Conveyancing
1. Failure to Meet Settlement Deadlines
Missed settlement dates remain one of the most common triggers for disputes. In Storey v Britton 2025 QSC 125, the Brittons agreed to sell a property to the Storeys for $3,264,000. Settlement was scheduled for 16 August 2024 and later extended to 19 August 2024. The sellers did not settle on the agreed date, and the buyers pursued specific performance.
Settlement delays can arise from funding issues, administrative error, inadequate coordination between advisers, or incomplete pre-settlement steps. The consequences may include contractual termination rights, default interest, damages exposure, and litigation costs—often disproportionate to the underlying delay.
2. Non-Compliance with Disclosure Obligations (Including Court-Ordered Disclosure)
Disclosure obligations are central to resolving disputes efficiently and to ensuring procedural fairness once proceedings commence. In Storey v Britton 2025 QSC 125, Ms Britton failed to comply with a court order requiring delivery of a list of documents by a specified deadline. The disclosure was late, incomplete, and non-compliant with rule 214(1)(a) of the Uniform Civil Procedure Rules 1999 (Qld).
Non-compliance can cause delay, increase costs, and weaken a party’s credibility before the Court. Importantly, disclosure obligations are not optional; where court orders are made, strict compliance is expected.
3. Health and Personal Circumstances Affecting Performance
Personal circumstances—particularly health issues—can materially affect a party’s capacity to meet contractual or procedural requirements. In Storey v Britton 2025 QSC 125, Ms Britton referred to health and vision issues as contributing factors to the delayed disclosure.
While such circumstances may be genuine, courts typically require cogent evidence and will not readily excuse non-compliance where obligations could have been met through timely assistance, delegation, or appropriate procedural steps. Where difficulties arise, early and documented action to manage them is critical.
4. Financial Risk and Market Movements
Property transactions are inherently exposed to market fluctuation. In Britton v Storey 2025 QCA 127, the appellants contended the property had increased in value—from an agreed sale price of $3 million in January 2024 to an asserted value of $4.1 to $4.5 million by mid-2025—and argued that enforcement at the contract price would cause financial detriment.
This illustrates a recurring risk: once parties are contractually bound, subsequent market changes (favourable or unfavourable) generally do not provide a basis to avoid performance. Careful consideration of timing, price, and contractual protections is essential at the contracting stage.
5. Litigation Risk and Adverse Costs Consequences
Once a conveyancing dispute enters litigation, costs exposure can escalate rapidly. In Storey v Britton 2025 QSC 125, the Court ordered Ms Britton to pay the plaintiffs’ costs of the disclosure application on an indemnity basis due to non-compliance with court orders. In Britton v Storey 2025 QCA 127, the appellants were ordered to pay the respondents’ costs of an application for a stay of enforcement.
Costs orders (including indemnity costs) are a significant commercial risk. They commonly arise where a party fails to comply with procedural requirements, pursues unmeritorious applications, or causes unnecessary delay.
6. Emotional and Psychological Strain
Conveyancing disputes frequently involve substantial assets and, in many cases, family homes. In Britton v Storey 2025 QCA 127, the appellants described the stress and difficulty of the litigation process, compounded by self-representation. Although the Court acknowledged the human impact of the proceedings, it reiterated that personal circumstances do not displace legal obligations.
Dispute escalation can have real operational and personal consequences. Early, structured management of issues can materially reduce the duration and intensity of disputes.
7. Self-Representation and Procedural Missteps
Both decisions illustrate the practical risks of self-representation in complex conveyancing disputes. In Storey v Britton 2025 QSC 125, Ms Britton represented herself yet failed to comply with orders and procedural requirements. In Britton v Storey 2025 QCA 127, the appellants’ lack of procedural knowledge added complexity to the matter.
Procedural non-compliance can lead to missed deadlines, adverse rulings, costs consequences, and reduced prospects of achieving a favourable outcome.
Practical Takeaways
To reduce the likelihood of disputes and minimise exposure if problems arise, parties should:
- Plan early for settlement, including finance approvals, document readiness, and coordination between agents, lenders, and advisers.
- Treat contractual and court-imposed deadlines as critical, and address any anticipated slippage immediately.
- Maintain complete and accurate records, particularly where issues may later require explanation or evidence.
- Communicate promptly and transparently, as unmanaged misunderstandings can crystallise into formal disputes.
- Manage risk proactively, including consideration of market conditions and appropriate contractual protections at the outset.
How Spire Law Can Assist
Spire Law regularly advises clients on residential and commercial conveyancing, risk management in property contracts, and the resolution of disputes (including where specific performance, termination, or costs issues arise). Where a transaction becomes contested, early strategic intervention can often reduce cost, delay, and disruption.
If assistance is required in relation to a property transaction or conveyancing dispute, Spire Law can provide tailored guidance aligned with the contract terms and applicable procedural requirements.
by Amy Lowry | Apr 4, 2024 | Insights
The Facts
The Ruby Princess class action involves claims under Australian Consumer Law (‘ACL’) against Carnival for damage and loss suffered by the passengers of the cruise that took place in March 2020. It is alleged passengers contracted COVID, resulting in instances of death because of Carnival’s failure to take appropriate measures to protect the passengers. Of those passengers existed a sub-category of 696 passengers referred to as the ‘US subgroup’. The US subgroup held contracts with Carnival that were formed outside of Australia and contained ‘US Terms and Conditions’.
The US Terms and Conditions contained a choice of law clause applying the general maritime law of the United States, an exclusive jurisdiction clause in favour of the Central District of California and a class action waiver clause. Carnival sought to rely upon the class action waiver clause to stay the US subgroup’s representative proceedings whereas Karpik asserted s 23 in Pt 2-3 of Ch 2 of the ACL (unfair contract terms) applied to the US Terms and Conditions and that the class action waiver was unfair and therefore void.
Extraterritorial Application of the ACL
The extraterritorial application of s 23 of the ACL was the centre point of this appeal. The common law presumption against extraterritoriality, being that subject to contrary intent, statutes describing acts, matters or things will not have an extraterritorial effect, is based on interpretation. It was found that s 5(1)(c) and (g) of the Consumer and Competition Act 2010 (Cth) (‘CC’), extends the application of the ACL protections to conduct outside of Australia where a business carries on business within Australia. When further read alongside s 23 of the ACL, the statute is a clear departure from a presumption against extraterritoriality. The High Court further went on to state that there would be nothing irrational in extending these protections onto those who carry out business in Australia and it be that Parliament’s intention is to require corporations conducting business in Australia to meet the norms of fairness irrespective of where those contracts are made.
One of the issues Carnival took with s 23 of the ACL applying to contracts made outside of Australia concerned the potential for “absurd and capricious results”. The example provided was where a company manufactures vehicles in Europe and sells them in Australia and therefore is subject to s 23 in relation to the other cars it sells within Europe. The High Court rejected this argument, finding that whether Australian law or judgments are recognised in other jurisdictions is a matter for foreign law and in any event, it would always be open for a respondent to stay a proceeding on the basis the Court is an inappropriate forum for the proceeding. In that example, whether an Australian court is an inappropriate forum to bring a claim, will depend on the general circumstances of the case including the connection of parties to the jurisdiction.
Unfair Contract Terms
After finding that s 23 of the ACL applied to the US Terms and Conditions contained in contracts formed outside Australia, the High Court considered whether the class action waiver clause was an unfair term or not. In finding the class action waiver was an unfair term, the High Court addressed the elements of s 23 as follows:
- Does the class action waiver cause a significant imbalance in the parties rights under the contract?
The High Court found the class action waiver did cause a significant imbalance in the Us subgroup’s rights under the contract because whilst the waiver did not remove the existence of a Us subgroup’s right to sue or their capacity to sue Carnival, it acted to prevent or discourage them from bringing a claim where the cost of doing so as an individual may be uneconomical.
- Does the term protect the legitimate interest of a party?
It was found that there was no legitimate interest in Carnival preventing the Us subgroup from participating in class actions.
- If the term is applied or replied upon, does it cause detriment?
It was stated that this question does not require significant detriment, not does it need to be limited to a financial detriment and can extend to a party being disadvantaged in a practical effect.
- On the balance, is the term transparent?
It was found the term was not transparent because it was not presented clearly or readily available. Once passengers booked the cruise and received their booking confirmation email, that email contained a link to a website which displayed three contracts and it was for the passenger to ascertain which of those contracts applied to them. It was in one of those contracts that the class action waiver term is found.
Exclusive Jurisdiction Clause
Whilst the exclusive jurisdiction clause was found valid and not an unfair contract term, the High Court retained a discretion whether to stay the proceedings and in exercising that discretion, found the Us subgroup had a strong judicial advantage in remaining in the class action and fracture the litigation. It was also found to stay the proceeding may result in denying the Us subgroup access to justice.
Practical Implications
This case highlights the importance of businesses engaging in business within Australia yet forming or entering contracts outside of Australia to be mindful of their obligations with respect to unfair contract terms. The High Court has made it clear that unfair contract terms have an extraterritorial reach. There has also been much debate about the benefit (or not) of class actions, particularly with regard to the significant cost of litigating class actions, it has also been made clear that terms limiting consumer’s access to participating in class actions is at the detriment of the consumer and of no legitimate protection of the business.
by Amy Lowry | Apr 4, 2024 | Insights
In Queensland, any person that has been charged with an indictable offence must have their matter heard in either the District or Supreme Court of Queensland, and have their matter heard before a jury. Indictable offences are offences that encompass a serious element, such as rape, murder, manslaughter, and robbery.
Whilst these matters are to be heard in the higher Courts, all criminal matters are commenced in the Magistrates Court. In order for the charges to be moved from the Magistrates Court to the District or Queensland Court, they must go through the process of committal. Committal is the process whereby the Court must be satisfied that there is a prima facie case that should be heard by the higher court, prior to it being moved.
Brief of evidence
The purpose of the committal hearing is not establishing a person’s guilt, it is a preliminary step in proceedings that allows the court to determine if there is sufficient evidence to proceed to a jury trial. During this preliminary step, the prosecution must serve on the defence the brief of evidence that they seek to rely upon. The evidence must outline all witness statements, contain relevant documentation; including recordings, photographs and any other relevant evidence that pertains to the charge.
Committal hearing involving oral evidence
Committal hearings can proceed with or without oral evidence. Hearings with oral evidence allows the defence to cross examine the Crowns witness to test the accuracy and creditability of their witness. The oral hearing is generally reserved for non-guilty pleas and provides the chance for the defence to determine weakness in the prosecution’s case. If the court determines that there is insufficient evidence, then the matter will be dismissed. However, if the Magistrate determines that there is enough evidence for the jury to be satisfied beyond reasonable doubt, then the Magistrate will commit the matter to a higher court.
Committal hearing without oral evidence
Generally, committal hearings will not require oral evidence and can be committed by consent. One way that a matter can be committed by consent is by a full hand up. A full hand up committal requires the prosecution to provide the brief of evidence to the Magistrate who will determine if there is sufficient evidence to commit the matter to a higher court.
Another way a committal can occur is through a registry committal. This process is an administrative avenue and allows the charges to be committed by the registry and without appearance in court. For a registry committal to be permitted, the accused must have legal representation, not be in custody, and must not be in breach of an undertaking of bail. The prosecution must serve the brief of evidence to the defence who then makes the application for registry committal.
The committal hearing process is a vital mechanism for determining whether there is sufficient evidence to commit a person to stand trial. The process ensures that due process is followed and that all actors of the process are ensuing that justice is being administered.
by Amy Lowry | Apr 4, 2024 | Insights
A discretionary trust has long been established as the most common form of asset protection, it has been thought to be the one way to shield your assets from creditors and divorce.
In 2008, the High Court held in Kennon v Spry that for assets held in a discretionary trust to be called into the property pool available for division in a family law property settlement, one of the parties needed to have both effective control of the trust and a right as a beneficiary of the trust in order to constitute property under section 79 of the Family Law Act 1975 , it was held that if a party only has a right as a beneficiary under the trust deed and no effective control it is merely a financial resource under section 75(2).
The recent decision in Woodcock (No 2) challenged this previous decision by asserting that a beneficiary’s rights in a discretionary trust, specifically the right to due administration and consideration, constitutes property under section 79 of the Family Law Act 1975. The trial judge found that despite the lack of control over the potential benefits of the trust, the husbands rights as a beneficiary were considered property, influencing the division of the property pool.
The decision in Woodcock has created uncertainty as to how a court will treat a party’s interest in a discretionary trust in family law matters. There is a possibility that following the decision that there could be an appeal as to the trial judge’s decision but if upheld, it could have a significant impact on how discretionary trusts are dealt with in the division of assets, with the potential of not favouring the party who benefits under the discretionary trust.
