Garnock v Black [2005] NSWCA 475

New South Wales Court of Appeal

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