In Diaconu v Saad [2026] WASC 150, Palmer J refused an application to extend a caveat lodged by a builder over the owner's land for $45k unpaid under a building contract in circumstances where there was no serious question to be tried and the balance of convenience did not favour extending the caveat.
Case background
Saad is the owner of land in Bedford. In November 2023, Diaconu and Saad entered int a contract to construct a house on the land. In September 2025, the work had reached PC and Diaconu invoiced Saad $45k. The invoice was unpaid and Diaconu registered a caveat over the land. In April 2026 Saad issued a lapsing notice and Diaconu applied to extend the operation of the caveat.
The Principles
His Honour considered caveats under the relevant sections of the Transfer of Land Act. His Honour also noted that the principles applicable to an application to extend a caveat as set out in Bashford v Bashford and Bride v Register of Titles. A caveatable interest must exist at the time a caveat is lodged and cannot be lodged to protect a future interest, nor must it go beyond the legitimate claim necessary to protect the rights of the caveator. The power of the court in an application to remove a caveat includes the amendment of a caveat as a condition of its retention, but the preponderance of authority is that this does not emplower the court to order an amendment which would result in the substitution of a different estate of interest than the estate or interest claimed in the caveat. Further, in an application to extent a caveat the Court has the power to decline to extend but impose an injunction maintaining the status quo.
No serious question to be tried
Ultimately, his Honour found that Diaconu failed to establish a serious question to be tried. His Honour set out the law relating to the creation of an equitable charge in Edwards Industrial Products Pty Ltd v Thwin and Zaw. While the Contract may entitle Diaconus to an equitable charge to secure money due and payable, that was limited to money due and payable under the Contract, and Saad had paid $465k of a $450k contract price. As Diaconu failed to provide full and proper accounting in response to Saad's evidence that he had overpaid, and given Diaconu's evidence was vague and contradictory, in the circumstances his Honour did not consider it established there is a serious question to be tried that money remained due and payable.
His Honour also did not consider the balance of convenience favoured extending the caveat because Saad was in the process of selling the land, and the time for resolution of proceedings before the Building Commissioner were unknown.