I have been served with a ‘Lapsing Notice,’ what do I do?

A lapsing notice is a form which once served on the caveator will cause a caveat registered on title to ‘lapse’ after 21 days of the service of the notice unless orders are obtained from Supreme Court for an extension of the caveat.

You must obtain those orders before the expiry of 21 days.

Generally on service of a lapsing notice swift action must be taken to obtain the extension orders if you wish the caveat to remain on title. The usual practice is to make an application for an urgent hearing before the Duty Judge at the Supreme Court. The Supreme Court’s practice note warns:

“Any applications for extensions of Caveats that are to be made to the Duty Judge should be made no less than 5 days before the expiration of the Lapsing Notice in respect of the Caveat, unless exceptional circumstances exist.”

If you are served with a Lapsing Notice you should immediately obtain legal advice. It may take a day or two to prepare for the application to the Duty Judge as the Applicant must provide certain evidence including an affidavit (or two) so do not leave it until the last minute. Obtaining an extension is effectively an injunction so the usual rules about injunctions will generally apply including establishing a ‘prima facie’ case and giving an undertaking as to damages.