Garnock & (3) Ors v Black & (4) Ors [2005] NSWSC 1217

Garnock & (3) Ors v Black & (4) Ors [2005] NSWSC 1217

For Torrens system land, "title" in s 112(2) of the Civil Procedure Act 2005 (NSW) is acquired only upon registration. The plaintiffs had not registered their transfer before the writ was registered; any equitable interest or legal estate under s 43A of the Real Property Act 1900 (NSW) did not amount to "title", and s 43A did not assist because the transfer was not a dealing registrable once the writ had been registered.

Jurisdiction
Australia
Judgment Date
21 November 2005
Procedural Posture
Supreme Court of New South Wales Equity Division Proceeding Concerning a Preliminary Question About Title to Land and a Writ of Execution / Separate Determination Before Further Trial Under R 28.2 of the Uniform Civil Procedure Rules 2005 (nsw)
Outcome
Preliminary question answered in the negative.
Legal Topics
['civil Procedure Act 2005 (nsw) S 112(2)' 'torrens System' 'writ for the Levy of Property' 'effect of Registration' 'meaning of Title']
['civil Procedure' 'real Property' 'statutory Interpretation'] ['civil Procedure Act 2005 (nsw) S 112(2)' 'torrens System' 'writ for the Levy of Property' 'effect of Registration' 'meaning of Title']

Case Brief

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Procedural Posture

Supreme Court of New South Wales Equity Division Proceeding Concerning a Preliminary Question About Title to Land and a Writ of Execution / Separate Determination Before Further Trial Under R 28.2 of the Uniform Civil Procedure Rules 2005 (nsw)

Legal Issues

  1. 1 ['Whether the plaintiffs acquired title to the land within the meaning of s 112(2) of the Civil Procedure Act 2005 (NSW) before registration of the writ.' 'Whether title under Torrens system land is acquired before registration by payment of the purchase price, equitable ownership, or s 43A of the Real Property Act 1900 (NSW).']

Ratio Decidendi

For Torrens system land, "title" in s 112(2) of the Civil Procedure Act 2005 (NSW) is acquired only upon registration. The plaintiffs had not registered their transfer before the writ was registered; any equitable interest or legal estate under s 43A of the Real Property Act 1900 (NSW) did not amount to "title", and s 43A did not assist because the transfer was not a dealing registrable once the writ had been registered.

Court Disposition

Preliminary question answered in the negative.

Orders

  • ['The plaintiffs have not acquired title to the land within the meaning of s 112(2) of the Civil Procedure Act 2005 (NSW).']