When entering into a conditional contract, keep in mind that your interest may, or may not be, caveatable. This is particularly important where a right to caveat might be critical to the deal, including in respect of a funding component. Substance over form and the extent and nature of conditionality will be key in determining if (or when) your caveatable interest arises, and often option agreements are problematic unless specific drafting concepts are incorporated. It’s also worth being mindful about your jurisdiction, for example Queensland generally favours priority notices over caveats. If you are interested in a deep dive on caveatable interests, then Jessica Holdings Pty Ltd v Anglican Property Trust Diocese of Sydney (1992) 27 NSWLR 140 is a good place to start.
