Garnock v Black [2005] NSWSC 1052

Garnock v Black [2005] NSWSC 1052

There is a serious question to be tried as to whether the plaintiffs, as purchasers without notice of the writ, have an interest entitled to priority over the writ and, consequently, whether their interests should be protected by an injunction pending full hearing. The balance of convenience favours maintaining the status quo and protecting the plaintiffs' position, as damages would not be an adequate remedy if the land were sold.

Jurisdiction
Australia
Judgment Date
07 October 2005
Procedural Posture
Equity / Interlocutory Application for Continuation of Injunction
Outcome
Interlocutory injunction granted
Legal Topics
['torrens Title System' 'execution Against Land' 'interlocutory Injunction' 'sale Under Writ' 'civil Procedure']
['equity' 'conveyancing' 'land Law'] ['torrens Title System' 'execution Against Land' 'interlocutory Injunction' 'sale Under Writ' 'civil Procedure']

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Procedural Posture

Equity / Interlocutory Application for Continuation of Injunction

Legal Issues

  1. 1 ["Whether a writ issued after contract for sale of land under Torrens system affects purchaser's interest" 'Interpretation of section 112 Civil Procedure Act 2005 regarding effect of writ on title' "Court's power to protect purchaser's equitable interest by interlocutory injunction where writ recorded after contract and before registration"]

Ratio Decidendi

There is a serious question to be tried as to whether the plaintiffs, as purchasers without notice of the writ, have an interest entitled to priority over the writ and, consequently, whether their interests should be protected by an injunction pending full hearing. The balance of convenience favours maintaining the status quo and protecting the plaintiffs' position, as damages would not be an adequate remedy if the land were sold.

Court Disposition

Interlocutory injunction granted

Orders

  • ['Order in terms of clause 1 of the Notice of Motion filed 28 September 2005, with exception for steps listed in Rule 39.22(1)(a)-(d) of the Uniform Civil Procedure Rules 2005.']