South Australian Numbered Acts South Australian Numbered Acts155—Substitution of section 26
Section 26—delete the section and substitute:
26—Caveats
(1) A person (a "caveator") who has, or who is claiming, an interest in a matter relevant to the registration of a tenement may apply to the Opal Mining Registrar to have a caveat registered under this section.
(2) An application for the registration of a caveat must be in a form determined by the Opal Mining Registrar.
(3) A caveat under subsection (1)
may—
(a) forbid the registration of any transfer, mortgage or voluntary surrender affecting a specified interest in the tenement (an "absolute caveat ); or
(b) forbid the registration of any transfer, mortgage or voluntary surrender affecting the tenement unless the transfer or mortgage expressly states that it is to be subject to the interest claimed by the caveator (a "claim caveat ).
(4) However, if a caveat is being registered without the express consent of the tenement holder for the tenement to which the caveat relates—
(a) the caveator must be a person who has entered into an agreement with the tenement holder relating to—
(i) the sale or transfer (or both) of the tenement holder's interest in the relevant tenement; or
(ii) any other matter connected with the tenement holder's interest in the relevant tenement; and
(b) the agreement must provide for the registration of a caveat under this section; and
(c) a copy of the agreement must accompany the application under subsection (2)
.
(a) set out a date of expiry (if any); or
(b) set out that the caveat will expire—
(i) on a specified transfer or mortgage of an interest in the tenement; or
(ii) at the end of a specified period.
(6) In connection with the preceding subsections, an application for the registration of a caveat—
(a) must be accompanied by—
(i) the prescribed fee; and
(ii) such other documents or information as the Opal Mining Registrar may require; and
(b) if the caveat is being registered without the express consent of the tenement holder for the tenement to which the caveat relates—must include a statutory declaration as to the truthfulness and accuracy of any matter specified by the caveator in the application.
(7) The Opal Mining Registrar does not have, on the receipt of an application to register a caveat, any duty to determine whether or not—
(a) the caveat relates to a valid caveatable interest; or
(b) a caveatable interest has been sufficiently described; or
(c) there is sufficient evidence to support the caveat; or
(d) any matter specified in the application is true and accurate.
(8) The registration of a caveat does not warrant the validity of any interest claimed in the caveat.
(9) On the registration of a caveat under this section, a notice of the registration of the caveat must be sent by the Opal Mining Registrar to any tenement holder whose interests are affected by the caveat, other than where the tenement holder is also the caveator.
(10) A caveat registered under this section—
(a) does not affect or prevent the renewal of a tenement; and
(b) does not lapse on the renewal of a tenement (while the caveat is registered); and
(c) does not affect or prevent any dealing with the tenement (or any interest in the tenement) that is required by an order of a court or tribunal constituted by law.
(11) A caveat registered under this section will lapse on—
(a) any order of the Warden's Court providing for the lapsing of the caveat; or
(b) the withdrawal of the caveat by the caveator; or
(c) the expiry of the caveat as contemplated by subsection (5)
.
(12) If—
(a) a caveat is registered in respect of a tenement; and
(b) the caveat lapses,
the caveator or any related corporation may not apply to register a second or subsequent caveat relating to the same interest in the tenement to which the original caveat related without the approval of the Warden's Court, or unless that second or subsequent caveat is being registered with the express consent of the tenement holder for the tenement to which the caveat relates.
(13) In this section—
"related corporation", in relation to a particular entity (being a corporation), is a corporation that is related to the entity under section 50 of the Corporations Act 2001 of the Commonwealth.
26A—Application to Warden's Court to lapse caveat or obtain compensation
(1) A person who—
(a) has an interest in a tenement subject to a caveat registered under section 26
; or
(b) has an interest that is directly affected by a caveat registered under section 26
,
may apply to the Warden's Court under this section.
(2) An application may be made for 1 or more of the following:
(a) a declaration that an interest claimed by the caveator is not a valid caveatable interest;
(b) an order that a caveat lapse;
(c) an order that a transfer, mortgage or surrender relating to a tenement be registered despite the registration of a caveat under section 26
;
(d) an order that a caveator pay compensation for any loss or damage suffered because a caveat registered under section 26
does not relate to a valid caveatable interest, or an amount for or towards any such loss or damage.
(3) Any compensation payable under an order under subsection (2)(d)
may be recovered as if it were a debt due to the person in whose favour the order is made in a court of competent jurisdiction.
(4) This section does not limit any other jurisdiction or power of the Warden's Court in relation to caveats under section 26
.