GARNOCK & ORS v BLACK & ORS [2006] NSWCA 140

Reported Decision : 66 NSWLR 347 (2006) NSW ConvR 56-158

New South Wales Court of Appeal

CITATION: GARNOCK & ORS v BLACK & ORS [2006] NSWCA 140

HEARING DATE(S): 22 February 2006

JUDGMENT DATE: 1 June 2006

JUDGMENT 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

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 LEGISLATION CITED: 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 39