VIC Who's responsible for caveat withdrawal paperwork?

[SamanthaJay]

So my settlement didn't go ahead last week because the caveat wasn't withdrawn. The conveyancer is blaming the solicitor for not withdrawing it and the solicitor is blaming the conveyancer because the conveyancer didn't ask them to withdraw it.

All I know is that it's now costing me more in legal fees. My thinking is that my solicior should have provided that paperwork in time for settlement. They put the caveat on the property on my behalf.

Any opinions?

 

[Rod]

Need more information.

Who hired the conveyancer? You? Your partner? Purchaser? Is the purchaser an independent party or your ex?

Did you instruct your solicitor to remove the caveat at settlement? If yes, is this written down anywhere?

 

[SamanthaJay]

Hi Rod,

My ex hired the conveyancer.

My ex is keeping the property and paying me out.

I'm the Applicant. My solicitor arranged for the caveat on the property in the early days, on my behalf.

So my ex hired the conveyancer to arrange the transfer. I had to go to the conveyancer's office to sign the bank paperwork (we had a small mortgage which is being discharged), so a Discharge of Mortgage, my ID check and I think I did the Transfer on line. Nothing was mentioned about the Caveat. I just left it up to the professionals and obviously my ex did as well.

 

[Rod]

Hmm, tricky.

If the caveat is on your behalf, you don't appear to have instructed your solicitor to remove the caveat. Should he advised you? Probably. But he may have done that at the time he placed the caveat.

As you were doing your own conveyancing this time around then your solicitor may have had no role to play.

I don't like your chances of pinning this on your solicitor. Of course there may be undisclosed facts that change my opinion

If the caveat is in the name of the solicitor because you owe them money, then that would have been paid out at settlement and caveat removed by them. Though based on what you said this doesn't appear to be what happened.

 

[SamanthaJay]

Yeah, it hasn't settled yet. Solicitor's account will be finalised when the settlement cheque clears in their trust account. They'll just transfer me the balance.

Now I'm thinking the conveyancer should have requested the caveat withdrawal because they are the one hired to effect the property transfer.

Although I think it's sloppy work from both sides. My solicitor specialises in family law. This work is their bread and butter. Surely they have a check list. When I went to the conveyancer's office to sign the paperwork, I was quite impressed at what appeared to be a very organised file set up. I took note and thought I would suggest aspects of it to my boss! And surely they also have a check list. To have them both fail at this fundamental step towards settlement is an inconvienence to us all.

 

[Rod]

I agree the matter could have been handled better by everyone concerned. From your description though I don't see your solicitor as being at fault. Sloppy maybe, but may not have reached the point where there is fault that can be ascribed to them.

No harm in expressing your displeasure with them and asking for a discount on their bill due to their sloppy work and see how you go.