Priority Notices in New South Wales - protecting the interests of our clients
Introduction of Priority Notices
From 28 November 2016, Priority Notices can be lodged in NSW.
The Real Property Amendment (Electronic Conveyancing) Act 2015 (NSW) inserted a new Part 7B Priority Notices in the Real Property Act 1900 (NSW). Part 7B is the legislation for Priority Notices including their lodgement, duration, effect and withdrawal.
Priority Notices are being introduced into NSW as part of a transition on a national level to electronic conveyancing in Australia by the Property Exchange Australia (PEXA) online property exchange network. TressCox is a member of the PEXA network and our Partner, Martyn Tier, lodged on 28 November 2016 the first Priority Notice.
Purpose of a Priority Notice
A Priority Notice is a notification of the intended registration of a dealing with land, such as a Transfer or a Mortgage. Once recorded, a Priority Notice will prevent the registration of a dealing or plan on the land title, with some exceptions.
The November Circular from Land & Property Information set out the objectives for introducing Priority Notices as follows:
- providing greater certainty to a transaction for which priority is reserved;
- alerting interested parties who search the Register that an intended dealing or transaction is pending;
- providing increased assurance to incoming parties at a settlement and allowing the settlement to take place; and
- assisting fraud prevention as details of a pending transaction will appear on a search of the Register, increasing the likelihood of a fraud being detected.
However, the primary purpose is to reserve priority for a purchaser (and incoming mortgagee) from the date of the contract until registration of the transfer (and incoming mortgage). This is an effective answer to the problem raised by the decision of the High Court in Black v Garnock (2007) HCA 31.
In that case, the owner had agreed to buy a property with settlement to take place at 2:00pm on 24 August 2005. The day before settlement, a writ of execution was obtained in the District Court. Under this writ the Sheriff was empowered to sell the property to pay the judgment debt. The writ was recorded in the Register at 11:53am on the settlement date. The purchasers’ solicitors did a final search on the morning of the settlement but prior to registration of the writ. After settlement, the purchasers were unable to have the transfer of the land registered in their names because of the earlier registration of the writ. The High Court held that the writ had priority as a result of its prior registration.
Now a Priority Notice will give notice of the purchaser’s interest and prevent registration of a subsequent dealing and this will include an Application to Record Writ.
A Priority Notice is a cheaper and simpler way of ensuring that an incoming purchaser has priority to register the transfer than lodging a caveat.
Lodgement of Priority Notices
A Priority Notice can be lodged by anyone that intends to lodge dealings to be registered. The lodgement of Priority Notices is optional. The LPI lodgement fee for a Priority Notice is $33.80.
A Priority Notice must be lodged using an Electronic Lodgement Network (Conveyancing Rule 8.1). In NSW this is currently PEXA. TressCox Lawyers is a member of PEXA and we will be lodging Priority Notices as a standard practice with electronic conveyances.
To lodge a Priority Notice a person must have an interest in the land. This is expressed at Section 74T(1) as follows:
a person intends to lodge a dealing to give effect to an entitlement to a legal or equitable estate or interest in land claimed by the person.
This is the same wording in Section 74F in respect of Caveats and is generally understood as a “caveatable interest”. Accordingly, to lodge a Priority Notice a person must have:
- an interest in the land; and
- an intention to lodge a dealing to give effect to that interest.
Unlike caveats, the Registrar-General is not required to give notice of the lodgement or recording in the Register of a Priority Notice to the registered proprietor: section 74T(6).
Period of Priority Notice
A Priority Notice:
- has effect for 60 days from the date of lodgement; and
- can be extended once only for a period of 30 days by lodgement of an Extension of Priority Notice.
Accordingly, Priority Notices give only a short term protection. This may be inadequate where there is a contract with a delayed settlement.
Nonetheless, where the previous Priority Notice has ceased to have effect a new Priority Notice may be lodged. However, this is a separate notice with priority running from the date of lodgement.
Withdrawal of Priority Notice
A Priority Notice can be withdrawn at any time before a Priority Notice ceases to have effect by the person who lodges the Priority Notice.
A Withdrawal of Priority Notice is not required to enable registration of the dealing to which the Notice relates: section 74(2)(b). For example, in a purchase, the Priority Notice referring to the Transfer will not prevent its registration and will lapse after registration of the Transfer.
Removal of Priority Notices
The Registrar-General may remove a Priority Notice generally where the notice is mistaken or where the person who lodged the Notice has not provided evidence requested by LPI within the period specified.
A person who is or claims to be entitled to an estate or interest in the land described in a Priority Notice may apply to the Supreme Court for an order that the Notice be withdrawn.
Any person who without reasonable cause:
- lodges a Priority Notice; or
- refuses or fails to withdraw a Priority Notice after being requested to do so,
will be liable to pay compensation to any person who sustains pecuniary loss that is attributable to the lodgment, refusal or failure.
A Priority Notice will give purchasers under contracts for sale of land and an incoming mortgagee protection to enable registration of the Transfer (and new mortgage). This will be a relatively cheap and efficient system compared to lodging a caveat.
TressCox Property Partner, Christopher Conolly and Senior Associate, Benjamin Harris along with the Property Team can assist if you are interested in registering a Priority Notice or in undertaking conveyancing transactions electronically on PEXA.
Christopher Conolly, Partner
Benjamin Harris, Partner