Reported Decision: 66 NSWLR 347
(2006) NSW ConvR 56-158
Court of Appeal
CITATION: GARNOCK & ORS v BLACK & ORS [2006] NSWCA 140 HEARING DATE(S): 22 February 2006
JUDGMENT DATE:
1 June 2006JUDGMENT OF: Beazley JA at 1; Ipp JA at 2; Basten JA at 67 DECISION: (a) The appeal is upheld; (b) The orders made by Lloyd J are set aside; (c) It is declared that the appellants (the purchasers), as holders of equitable interests in the land the subject of this appeal, are entitled to priority over any rights to the land that might be held by the first, second and third respondents (the judgment creditors); (d) The first, second, third and fourth respondents and their servants and agents are restrained, for 60 days from the date of the delivery of this judgment, from executing writ for levy of property AB 718530 (No 908/03) issued on 23 August 2005 against the land; (e) The costs of the appeal and the costs of the trial and interlocutory proceedings to be paid by the first, second and third respondents; (f) The first, second and third respondents be entitled to a certificate under the Suitors Fund Act 1951 (NSW) if otherwise entitled CATCHWORDS: PROPERTY – registered writ for levy of property – contract of sale by registered proprietor exchanged but not completed – purchasers sought to register transfer –meaning of ‘title’ in s112(2) of Civil Procedure Act 2005 (NSW) – effect of Real Property Act 1900 (NSW), ss105, 105A and 105B – whether purchasers’ interest had priority over a Sheriff’s purchaser under execution of the writ LEGISLATION CITED: Civil Procedure Act 2005 (NSW), s109, s110, s112, s113, s115, s116
Conveyancing Act 1919 (NSW), s186, s188
Interpretation Act 1987 (NSW), s21
Judgment Creditors' Remedies Act 1901 (NSW), s13, s14
Native Title Act 1993 (Cth)
Queensland Real Property Act 1861-1988, s44
Real Property Act 1900 (NSW), s3, s28A, s36, s41, s42, s43, s43A, s74A, s74F, s74G, s105, s105A, s105B, s105D
Real Property Act 1877 (Qld), s35
Real Property (Amendment) Act 1976 (NSW)
Uniform Civil Procedure Rules 2005, Part 39CASES CITED: Barry v Heider (1914) 19 CLR 197
Breskvar v Wall (1971) 126 CLR 376
Brown v Heffer (1967) 116 CLR 344
Bruce v Woods [1951] VLR 49
Butler v Fairclough (1917) 23 CLR 78
Chan v Cresdon Pty Ltd (1989) 168 CLR 242
Coleman v De Lissa (1885) 6 LR (NSW) Eq 104
Commonwealth Trading Bank of Australia v Austral Lighting Pty Ltd [1984] 2 Qd R 507
Garnock & Ors v Black & Ors [2005] NSWSC 1217
Garnock & Ors v Black & Ors (No 2) [2005] NSWSC 1218
Garnock v Black [2005] NSWSC 1052
Garnock v Black [2005] NSWCA 475
Hall v Richards (1961) 108 CLR 84
Haque v Haque (No 2) (1965) 114 CLR 98
In Re Broughton (1916) 17 SR (NSW) 29
In Re Elliott (1886) 7 LR (NSW) 271
Johnson v Johnson (1904) SR (NSW) 575
KLDE Pty Ltd v Commissioner of Stamp Duties (Qld)
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- AGLC
- Garnock v Black [2006] NSWCA 140
- Case
- [2006] NSWCA 140
- Decision Date
CaseChat Overview and Summary
In the matter of *Garnock v Black*, the Court of Appeal of New South Wales considered a dispute between purchasers of land and judgment creditors who had registered a writ for the levy of property against the vendor. The purchasers had exchanged contracts for the sale of the land but had not yet completed the transfer when the judgment creditors sought to enforce their writ. The central issue was whether the purchasers' equitable interest in the land took priority over the rights of a purchaser who might acquire the land through the execution of the writ.
The court was required to determine the meaning of "title" in section 112(2) of the *Civil Procedure Act 2005* (NSW) and the effect of sections 105, 105A, and 105B of the *Real Property Act 1900* (NSW) in the context of a registered writ for levy of property. Specifically, the court had to decide whether the purchasers' equitable interest, arising from the contract of sale, had priority over any interest acquired by a Sheriff's purchaser under the execution of the writ.
The Court of Appeal held that the purchasers' equitable interest in the land, acquired upon exchange of contracts, took priority over the rights of the judgment creditors. The court reasoned that the registration of a writ for levy of property under the *Civil Procedure Act* does not, in itself, create an equitable interest in the land for the judgment creditor. Instead, it is a step towards enforcing a judgment, and the ultimate acquisition of title by a Sheriff's purchaser is contingent on the completion of the sale process. The court found that the purchasers' prior equitable interest was not defeated by the subsequent registration of the writ.
Consequently, the appeal was upheld, and the orders of the primary judge were set aside. The Court of Appeal declared that the purchasers, as holders of equitable interests, were entitled to priority over the judgment creditors. The judgment creditors were restrained from executing the writ against the land for a period of 60 days, and they were ordered to pay the costs of the appeal and the trial proceedings.
The court was required to determine the meaning of "title" in section 112(2) of the *Civil Procedure Act 2005* (NSW) and the effect of sections 105, 105A, and 105B of the *Real Property Act 1900* (NSW) in the context of a registered writ for levy of property. Specifically, the court had to decide whether the purchasers' equitable interest, arising from the contract of sale, had priority over any interest acquired by a Sheriff's purchaser under the execution of the writ.
The Court of Appeal held that the purchasers' equitable interest in the land, acquired upon exchange of contracts, took priority over the rights of the judgment creditors. The court reasoned that the registration of a writ for levy of property under the *Civil Procedure Act* does not, in itself, create an equitable interest in the land for the judgment creditor. Instead, it is a step towards enforcing a judgment, and the ultimate acquisition of title by a Sheriff's purchaser is contingent on the completion of the sale process. The court found that the purchasers' prior equitable interest was not defeated by the subsequent registration of the writ.
Consequently, the appeal was upheld, and the orders of the primary judge were set aside. The Court of Appeal declared that the purchasers, as holders of equitable interests, were entitled to priority over the judgment creditors. The judgment creditors were restrained from executing the writ against the land for a period of 60 days, and they were ordered to pay the costs of the appeal and the trial proceedings.
Orders
Orders of the court
(a) The appeal is upheld; (b) The orders made by Lloyd J are set aside; (c) It is declared that the appellants (the purchasers), as holders of equitable interests in the land the subject of this appeal, are entitled to priority over any rights to the land that might be held by the first, second and third respondents (the judgment creditors); (d) The first, second, third and fourth respondents and their servants and agents are restrained, for 60 days from the date of the delivery of this judgment, from executing writ for levy of property AB 718530 (No 908/03) issued on 23 August 2005 against the land; (e) The costs of the appeal and the costs of the trial and interlocutory proceedings to be paid by the first, second and third respondents; (f) The first, second and third respondents be entitled to a certificate under the Suitors Fund Act 1951 (NSW) if otherwise entitled
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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