Garnock & (3) Ors v Black & (4) Ors (No. 2) [2005] NSWSC 1218

Garnock & (3) Ors v Black & (4) Ors (No. 2) [2005] NSWSC 1218

Section 105A(2) governed the case. Because the writ had been recorded before the plaintiffs took a dealing capable of registration, their transfer was not registrable unless it referred to the writ as a prior encumbrance. Section 43A did not assist because the plaintiffs had not taken under a dealing registrable and, in any event, they failed to undertake a final search that ought reasonably to have been carried out. The recorded writ did not create an interest in land, but it engaged the statutory procedure giving the first three defendants the benefit of the Sheriff sale mechanism. The plaintiffs' amended summons therefore failed.

Jurisdiction
Australia
Judgment Date
02 December 2005
Procedural Posture
Equity Division Proceedings by Amended Summons Seeking a Declaration, Injunction and Cancellation of the Recording of a Writ Affecting Torrens Land / Judgment on Amended Summons
Outcome
The amended summons was dismissed; costs were reserved; the exhibits may be returned.
Legal Topics
['torrens System' 'writ for the Levy of Property' 'recording of Writ in the Register' 'effect of Registration' 'priority' 'real Property Act 1900 (nsw) Ss 105 105 D' 'real Property Act 1900 (nsw) S 43 A' 'civil Procedure Act 2005 (nsw) S 112']
['real Property' 'civil Procedure' 'statutory Interpretation'] ['torrens System' 'writ for the Levy of Property' 'recording of Writ in the Register' 'effect of Registration' 'priority' 'real Property Act 1900 (nsw) Ss 105 105 D' 'real Property Act 1900 (nsw) S 43 A' 'civil Procedure Act 2005 (nsw) S 112']

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Procedural Posture

Equity Division Proceedings by Amended Summons Seeking a Declaration, Injunction and Cancellation of the Recording of a Writ Affecting Torrens Land / Judgment on Amended Summons

Legal Issues

  1. 1 ['Whether the plaintiffs\' interest as purchasers of "Wanaka" had priority over the first three defendants\' recorded writ for the levy of property' "Whether the plaintiffs' transfer and associated documents could be registered notwithstanding the recorded writ" 'Whether s 43A of the Real Property Act 1900 (NSW) assisted the plaintiffs' 'Whether the first three defendants should be ordered to execute and lodge an application for cancellation of the recording of the writ']

Ratio Decidendi

Section 105A(2) governed the case. Because the writ had been recorded before the plaintiffs took a dealing capable of registration, their transfer was not registrable unless it referred to the writ as a prior encumbrance. Section 43A did not assist because the plaintiffs had not taken under a dealing registrable and, in any event, they failed to undertake a final search that ought reasonably to have been carried out. The recorded writ did not create an interest in land, but it engaged the statutory procedure giving the first three defendants the benefit of the Sheriff sale mechanism. The plaintiffs' amended summons therefore failed.

Court Disposition

The amended summons was dismissed; costs were reserved; the exhibits may be returned.

Orders

  • ['The amended summons is dismissed.' 'Costs are reserved.' 'The exhibits may be returned.']