Garnock v Black - [2005] NSWCA 475

CITATION:
Garnock v Black [2005] NSWCA 475

HEARING DATE(S):
16 December 2005

JUDGMENT DATE:

21 December 2005

JUDGMENT OF:
Basten JA

DECISION:
(1) Upon the Appellants, by their counsel, giving the usual undertaking in accordance with rule 25.8 of the Uniform Civil Procedures Rules 2005, the Court orders that the First, Second, Third and Fourth Respondents and their servants and agents be restrained from executing registered Writ for Levy on Property AB718530 (Writ No. 908/03) issued on 23 August 2005 against any of the land contained in Folios 2/594272, 109/658087 and 110/658088 and known as “Wanaka” via Bombala, New South Wales pending determination of this appeal; (2) The costs of this application be the Appellants’ costs in this appeal; (3) Order that the hearing of the appeal be expedited and listed on 22 February 2006; (4) The Court further directs that; (a) the Appellants file written submissions together with the appeal books (excluding the Orange Book) by Friday, 13 January 2006; (b) the Respondents file written submissions by Friday, 27 January 2006; (c) the Appellants file submissions in reply together with the Orange Book by Friday, 10 February 2006; (5) These orders may be entered forthwith.

CATCHWORDS:
INTERLOCUTORY RELIEF - application for an interlocutory injunction - whether the point of law sought to be agitated on the appeal was unarguable - the purpose of the power and the nature of the application considered - preservation of the subject matter of the litigation, pending determination of the proceedings - where the balance of convenience lies - potential prejudice on either side of the record, resulting from the grant or refusal to grant the inunction sought - whether in addition to the usual undertaking as to damages, the grant should be conditional on the giving of an additional special undertaking

LEGISLATION CITED:
Civil Procedure Act 2005 (NSW)
Real Property Act 1900 (NSW)
Supreme Court Act 1970
Uniform Civil Procedures Rules 2005

CASES CITED:
Jesasu Pty Ltd v Minister for Mineral Resources (1987) 11 NSWLR 110
Archer v Archer [1999] NSWCA 286
Garnock v Black [2005] NSWSC 1052
Garnock v Black [2005] NSWSC 1217
Garnock v Black [2005] NSWSC 1218

PARTIES:
Bryce Lachlan Garnock (First Appellant)
Sarah Jane Garnock (Second Appellant)
Robert Leonard Luff (Third Appellant)
Lynette Anne Luff (Fourth Appellant)
Stuart Alexander Black (First Respondent)
Vaughn Lee Chapman (Second Respondent)
Andrew Philip Carter (Third Respondent)
The Sheriff of New South Wales (Fourth Respondent)
Marilyn Claire Smith (Fifth Respondent)

FILE NUMBER(S):
CA 40951/05

COUNSEL:
Mr A.J. Grant (Appellants)
Mr J. Stoljar/Ms K.W. Dawson (First, Second and Third Respondents)
No Appearance (Fourth and Fifth Respondents)

SOLICITORS:
Hugh & Associates, Sydney agents for Capon & Hubert, Mawson ACT (Appellants)
Stephen Blanks & Associates (First, Second and Third Respondents)
No Appearance (Fourth and Fifth Respondents)

LOWER COURT JURISDICTION:
Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S):
SC 5164/05

LOWER COURT JUDICIAL OFFICER:
Lloyd AJ

CA 40951/05

BASTEN JA
21 December 2005

BRYCE LACHLAN GARNOCK & ORS v STUART ALEXANDER BLACK & ORS

Judgment

1 BASTEN…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Garnock v Black

Details

AGLC: Garnock v Black [2005] NSWCA 475
Case: [2005] NSWCA 475
Decision Date: 21 December 2005

CaseChat Overview and Summary

In *Garnock v Black*, the appellants sought an interlocutory injunction from the Court of Appeal of New South Wales to restrain the respondents from executing a registered writ for levy on property. The dispute concerned the preservation of land, specifically parcels identified by folio numbers 2/594272, 109/658087, and 110/658088, known as "Wanaka" near Bombala, New South Wales, pending the determination of an appeal.

The primary legal issue before the Court of Appeal was whether to grant the interlocutory injunction sought by the appellants. This required the court to consider the purpose and nature of such applications, particularly in the context of preserving the subject matter of litigation. The court also had to assess where the balance of convenience lay, weighing the potential prejudice to either party from granting or refusing the injunction, and whether any undertaking as to damages beyond the usual would be required.

Basten JA, applying established principles for interlocutory relief, considered the need to preserve the status quo pending the final determination of the appeal. The court determined that the grant of the injunction was warranted, subject to the appellants providing the usual undertaking as to damages in accordance with rule 25.8 of the Uniform Civil Procedures Rules 2005. The court also ordered that the costs of the application be the appellants' costs in the appeal and expedited the hearing of the appeal.

Orders

Orders of the court

(1) Upon the Appellants, by their counsel, giving the usual undertaking in accordance with rule 25.8 of the Uniform Civil Procedures Rules 2005, the Court orders that the First, Second, Third and Fourth Respondents and their servants and agents be restrained from executing registered Writ for Levy on Property AB718530 (Writ No. 908/03) issued on 23 August 2005 against any of the land contained in Folios 2/594272, 109/658087 and 110/658088 and known as “Wanaka” via Bombala, New South Wales pending determination of this appeal; (2) The costs of this application be the Appellants’ costs in this appeal; (3) Order that the hearing of the appeal be expedited and listed on 22 February 2006; (4) The Court further directs that; (a) the Appellants file written submissions together with the appeal books (excluding the Orange Book) by Friday, 13 January 2006; (b) the Respondents file written submissions by Friday, 27 January 2006; (c) the Appellants file submissions in reply together with the Orange Book by Friday, 10 February 2006; (5) These orders may be entered forthwith.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Garnock v Black [2005] NSWCA 475
HEARING DATE(S):	16 December 2005
JUDGMENT DATE:	21 December 2005
JUDGMENT OF:	Basten JA
DECISION:	(1) Upon the Appellants, by their counsel, giving the usual undertaking in accordance with rule 25.8 of the Uniform Civil Procedures Rules 2005, the Court orders that the First, Second, Third and Fourth Respondents and their servants and agents be restrained from executing registered Writ for Levy on Property AB718530 (Writ No. 908/03) issued on 23 August 2005 against any of the land contained in Folios 2/594272, 109/658087 and 110/658088 and known as “Wanaka” via Bombala, New South Wales pending determination of this appeal; (2) The costs of this application be the Appellants’ costs in this appeal; (3) Order that the hearing of the appeal be expedited and listed on 22 February 2006; (4) The Court further directs that; (a) the Appellants file written submissions together with the appeal books (excluding the Orange Book) by Friday, 13 January 2006; (b) the Respondents file written submissions by Friday, 27 January 2006; (c) the Appellants file submissions in reply together with the Orange Book by Friday, 10 February 2006; (5) These orders may be entered forthwith.

CATCHWORDS:	INTERLOCUTORY RELIEF - application for an interlocutory injunction - whether the point of law sought to be agitated on the appeal was unarguable - the purpose of the power and the nature of the application considered - preservation of the subject matter of the litigation, pending determination of the proceedings - where the balance of convenience lies - potential prejudice on either side of the record, resulting from the grant or refusal to grant the inunction sought - whether in addition to the usual undertaking as to damages, the grant should be conditional on the giving of an additional special undertaking
LEGISLATION CITED:	Civil Procedure Act 2005 (NSW) Real Property Act 1900 (NSW) Supreme Court Act 1970 Uniform Civil Procedures Rules 2005
CASES CITED:	Jesasu Pty Ltd v Minister for Mineral Resources (1987) 11 NSWLR 110 Archer v Archer [1999] NSWCA 286 Garnock v Black [2005] NSWSC 1052 Garnock v Black [2005] NSWSC 1217 Garnock v Black [2005] NSWSC 1218
PARTIES:	Bryce Lachlan Garnock (First Appellant) Sarah Jane Garnock (Second Appellant) Robert Leonard Luff (Third Appellant) Lynette Anne Luff (Fourth Appellant) Stuart Alexander Black (First Respondent) Vaughn Lee Chapman (Second Respondent) Andrew Philip Carter (Third Respondent) The Sheriff of New South Wales (Fourth Respondent) Marilyn Claire Smith (Fifth Respondent)
FILE NUMBER(S):	CA 40951/05
COUNSEL:	Mr A.J. Grant (Appellants) Mr J. Stoljar/Ms K.W. Dawson (First, Second and Third Respondents) No Appearance (Fourth and Fifth Respondents)
SOLICITORS:	Hugh & Associates, Sydney agents for Capon & Hubert, Mawson ACT (Appellants) Stephen Blanks & Associates (First, Second and Third Respondents) No Appearance (Fourth and Fifth Respondents)

LOWER COURT JURISDICTION:	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S):	SC 5164/05
LOWER COURT JUDICIAL OFFICER:	Lloyd AJ