The recent High Court Case of Black v Garnock [2007] HCA 31 has led to a change in the way that conveyancing practice is likely to occur in the future. The facts of the case were that a conveyance was being performed between a purchaser and a vendor. The day that the settlement occured, a writ of execution for the levy of property was ordered over the property and the trasnfer which the purchaser obtained was ineffective because of the writ which had been obtained. The purchasers were therefore unable to obtain posession of the property and their interests were seriously prejudiced becasue the transfer could not be registered for the property as result of the issuing of the writ of execution.

All of this occured despite the fact that the purchaser’s solicitors took the precaution of obtaining a final title search on the day of the settlement. This is a very normal precaution in the conveyancing process which is insisted on by the banks because of the risk that something might appear on the title before the time of settlement and make the transaction ineffective. The court said that it was necessary for the purchasers to have lodged a caveat prior to settlement to prevent the writ for the levy of property being executed. Although there is some argument that in this case, the vendor requisitions on title should have been served and this should have revealed the fact that there was litigation support in relation to the property which should have alerted the purchasers to the danger that a writ would be taken out in the near future, for whatever reason that is not explained in the judgment, this did not occur. It is now a precaution that is often taken by purchaser’s solicitors that a caveat is lodged at the time of settlement to prevent a situation like this developing for their client. If you would like more information about any of this, please do not hesitate to contact us using any of the contact methods available on this site.