Harmonising Judicial Approaches to Determining the Caveatability and Characterisation of Equitable Interests in Australia

Judicial disparities persist in differentiating between equitable interests in land and mere equities. Consequently, in the context of competing equitable interests involving Torrens land, judges tend to downplay this issue of characterisation by determining priority on other grounds.
Caveatable interests are traditionally confined to equitable interests in land and therefore exclude mere equities. Yet mere equities may be caveatable pursuant to the wide definition of “interest” in Acts Interpretation Act 1954 (Qld), specifically rights in relation to land. Not only does this challenge the dichotomy between proprietary interests and personal interests, it also reflects another tension between the principles of Equity, the Torrens system and other legislation.
This paper examines the ongoing debate on the categorisation and caveatability of a mortgagor’s right to restrain or rescind an improper mortgagee sale of land, as well as a purchaser’s interest under a conditional contract for sale of land. This involves a critical consideration of Australian case law together with a comparative analysis of the relevant provisions in the Torrens legislation and other applicable legislation in Australia. The author will suggest alternative approaches to harmonise statutory interpretation of caveatable interests and judicial characterisation of equitable interests.