Black v Garnock [2007] HCA 31

HIGH COURT OF AUSTRALIA

GLEESON CJ

GUMMOW, HAYNE, CALLINAN AND CRENNAN JJ

STUART ALEXANDER BLACK & ORS APPELLANTS

AND

BRYCE LACHLAN GARNOCK & ORS RESPONDENTS

Black v Garnock

[2007] HCA 31

1 August 2007

S401/2006

ORDER

1. Appeal allowed with costs.

2. Set aside the orders of the Court of Appeal of the Supreme Court of New South Wales made on 1 June 2006 and in their place order that:

(a) the appeal to that Court be dismissed with costs; and

(b) there be an inquiry into what damages, if any, the first to third respondents in the Court of Appeal (namely, Stuart Alexander Black, Vaughan Lee Chapman and Andrew Philip Carter) suffered by reason of either the injunction granted by Campbell J by order made on 7 October 2005 or the injunction granted by Basten JA by order made on 21 December 2005 which the appellants in the Court of Appeal (namely, Bryce Lachlan Garnock, Sarah Jane Garnock, Robert Leonard Luff and Lynette Anne Luff) ought to pay.

On appeal from the Supreme Court of New South Wales

Representation

J Stoljar with K W Dawson for the appellants (instructed by SBA Lawyers)

G C Lindsay SC with A J Grant and G F Mahony for the first to fourth respondents (instructed by Capon & Hubert)

Submitting appearance for the fifth respondent

No appearance for the sixth respondent

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Black v Garnock

Conveyancing – Land titles under the Torrens system – Execution against land under the Torrens system – Recording of a writ for the levy of property in respect of land under the Real Property Act 1900 (NSW) ("the Act") – Appellants obtained judgment against the sixth respondent ("judgment debtor") – Judgment debtor was registered proprietor of land – Judgment debtor agreed to sell land to the first to fourth respondents ("purchasers") – Prior to settlement, a writ for the levy of property was recorded in respect of the land – Following settlement, Registrar-General refused to register transfers – Purchasers sought interlocutory injunction restraining appellants and Sheriff of NSW from executing the writ – Nature of interest of purchasers in land – Whether person claiming estate or interest not recorded in the Register and not preserved by the Act is entitled to an injunction to prevent execution of a writ for the levy of property.