Black v Garnock

The High Court of Australia considered an appeal concerning the effect of registering a writ of execution against Torrens title land. The appellants, judgment creditors, had obtained a judgment against the sixth respondent, who was the registered proprietor of certain land. The sixth respondent agreed to sell this land to the first to fourth respondents (the purchasers). Prior to the settlement of the sale, the appellants registered a writ for the levy of property against the land. The Registrar-General subsequently refused to register the transfers to the purchasers. The purchasers sought an interlocutory injunction to prevent the execution of the writ.

The central legal issues before the High Court were whether the purchasers, who had a contractual interest in the land but whose transfer had not yet been registered, were entitled to an injunction to prevent the execution of the writ. This involved determining the nature of the purchasers' interest in the land under the Torrens system and the effect of the registration of the writ of execution, particularly in light of section 105A(2) of the *Real Property Act 1900* (NSW), which prohibited the Registrar-General from registering certain dealings during a "protected period" after a writ was recorded.

The High Court, by majority, allowed the appeal. The Court reasoned that the purchasers' contractual right to purchase the land, while enforceable in equity, did not constitute a registered estate or interest in the land that was preserved by the *Real Property Act 1900* (NSW) against the effect of a registered writ. The Court noted that the purchasers had not argued that the appellants' actions in procuring the recording of the writ were unconscientious, nor that their completion of the contract prior to the writ's registration placed them in a better position. The Court emphasised that the statutory scheme of the Torrens system prioritised registered interests, and the purchasers' unregistered interest, even if established by contract before the writ was recorded, did not override the appellants' right to proceed with the execution of their judgment once the writ was properly registered.

The High Court set aside the orders of the Court of Appeal of New South Wales and ordered that the appeal to that Court be dismissed with costs. Furthermore, the High Court ordered an inquiry into what damages, if any, the purchasers suffered by reason of the injunctions previously granted, to be paid by the appellants.