Cappello v HomeBuilding Pty Ltd

In *Cappello v HomeBuilding Pty Ltd*, the New South Wales Court of Appeal considered an application for leave to lodge a further caveat over land. The applicant sought to prevent the respondents from lodging a second caveat after an earlier one had lapsed. The dispute arose from an interest in land purportedly created under section 7D of the *Home Building Act 1989* (NSW), which related to assessed costs.

The primary legal issue before the Court was whether to grant leave to the respondents to lodge a further caveat, given that an earlier caveat had been allowed to lapse. This required the Court to consider the circumstances under which a second caveat could be permitted, particularly where the initial caveat had expired. The Court also had to assess the prospects of success of the underlying claim that gave rise to the interest in land, which was based on an appeal from a judgment dismissing an appeal from a costs assessment.

Basten AJA reasoned that while leave was generally required to lodge a further caveat after an earlier one had lapsed, the circumstances here did not warrant refusing leave. The Court noted there was no significant delay in the application and that the respondents had an arguable, albeit potentially limited, prospect of success in their underlying judicial review proceedings concerning the costs assessment. Consequently, the Court granted leave to the respondents to lodge a further caveat, with a specific amendment to reflect that leave had been granted by the Court. The notice of motion was otherwise dismissed, with costs of the motion to be costs in the proceedings.