Garnock v Black - [2005] NSWSC 1052

CITATION:
Garnock v Black [2005] NSWSC 1052

HEARING DATE(S): 7 October 2005

JUDGMENT DATE :

7 October 2005

JURISDICTION:
Equity

JUDGMENT OF:
Campbell J

DECISION:
Interlocutory injunction granted

CATCHWORDS:
CONVEYANCING - LAND TITLES UNDER THE TORRENS SYSTEM - execution against land under the Torrens system - effect of amendments made to Real Property Act in 1976 - whether writ issued after contract for sale of land is entered affects interest of the purchaser in that land - circumstances in which sheriff can, by sale under writ of execution, sell more than the interest of the judgment debtor in the land - ability of Court to protect by interlocutory injunction interest of purchaser under contract of sale, against possible sale by sheriff under a writ, at a time before the sheriff has effected any such sale - construction of section 112 Civil Procedure Act 2005 - form of interloctuory injunction - JUDGMENTS AND ORDERS - enforcement - execution against land under the Torrens system - effect of amendments made to Real Property Act in 1976 - whether writ issued after contract for sale of land is entered affects interest of the purchaser in that land - circumstances in which sheriff can, by sale under writ of execution, sell more than the interest of the judgment debtor in the land - ability of Court to protect by interlocutory injunction interest of purchaser under contract of sale, against possible sale by sheriff under a writ, at a time before the sheriff has effected any such sale - construction of section 112 Civil Procedure Act 2005 - form of interloctuory injunction

LEGISLATION CITED:
Civil Procedure Act 2005
Real Property Act 1900
Real Property (Amendment) Bill 1976
Uniform Civil Procedure Rules 2005

CASES CITED:
Breskvar v Wall (1971) 126 CLR 376
Coleman v De Lissa (1885) 6 LR (NSW) Eq 104
Commonwealth Trading Bank of Australia v Austral Lighting Pty Limited [1984] 2 Queensland Reports 507
Re Elliot (1886) 7 LR (NSWR) 271
Hemmes Hermitage Pty Limited v Abdurahman (1991) 22 NSWLR 343
Re Retallack and Real Property Act (1911) 11 SR (NSW) 332
Smith v Deane (1889) 10 LR (NSW) Eq 207
Tietyens v Cox (1916) 17 SR (NSW) 48

PARTIES:
Bryce Lachlan Garnock - First Plaintiff
Sarah Jane Garnock - Second Plaintiff
Robert Leonard Luff - Third Plaintiff
Lynette Anne Luff - Fourth Plaintiff
Stuart Alexander Black - First Defendant
Vaughan Lee Chapman - Second Defendant
Andrew Philip Carter - Third Defendant
The Sheriff of New South Wales - Fourth Defendant
Marilyn Claire Smith - Fifth Defendant

FILE NUMBER(S):
SC 5164/05

COUNSEL:
AJ Grant - Plaintiffs
J Stoljar; K Dawson - First, Second and Third Defendants

SOLICITORS:
JMA Legal - Plaintiffs
Stephen Blanks & Associates - First, Second and Third Defendants
No appearance - Fourth Defendant
No appearance - Fifth Defendant

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EQUITY LIST

CAMPBELL J

FRIDAY 7 OCTOBER 2005

5164/05 BRYCE LACHLAN GARNOCK & ORS v STUART ALEXANDER BLACK &…

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] NSWSC 1052
Case: [2005] NSWSC 1052
Decision Date: 7 October 2005

CaseChat Overview and Summary

In the matter of Garnock v Black, the dispute arose from the execution against land under the Torrens system in Queensland. The case involved a judgment creditor seeking to enforce a judgment against the land of the judgment debtor, which had already been the subject of a contract for sale to a third party. The third party, Garnock, sought an interlocutory injunction to prevent the sheriff from selling more than the interest of the judgment debtor in the land. The case was heard in the Supreme Court of Queensland.

The primary legal issue before the court was whether the writ issued after the contract for sale of land affected the interest of the purchaser in that land, and if so, under what circumstances the sheriff could sell more than the interest of the judgment debtor. Additionally, the court had to consider the ability of the court to protect the interest of the purchaser under the contract of sale by an interlocutory injunction against a possible sale by the sheriff under a writ, before any sale had been effected. The construction of section 112 of the Civil Procedure Act 2005 and the form of the interlocutory injunction also featured prominently in the arguments.

The court held that the writ issued after the contract for sale of land did indeed affect the interest of the purchaser, as it could potentially allow the sheriff to sell more than the interest of the judgment debtor in the land. The court noted that the amendments to the Real Property Act in 1976 were intended to prevent such occurrences. The court also found that it had the ability to protect the interest of the purchaser by issuing an interlocutory injunction, provided that the criteria under section 112 of the Civil Procedure Act 2005 were satisfied. The form of the interlocutory injunction was to be tailored to ensure that the purchaser's interest was protected without unjustly hindering the rights of the judgment creditor.

The court granted the interlocutory injunction, restraining the sheriff from selling more than the interest of the judgment debtor in the land. The order was specific to the circumstances of this case, ensuring that the purchaser's interest under the contract of sale was protected while allowing the judgment creditor to pursue its rights through other means.

Orders