Garnock v Black [2005] NSWCA 475

Garnock v Black [2005] NSWCA 475

Given the arguable grounds of appeal and the sufficient protection of the Respondents by the usual undertaking as to damages, the balance of convenience favours granting an interlocutory injunction restraining execution of the writ for levy pending appeal determination.

Parties
First Appellant: Bryce Lachlan Garnock; Second Appellant: Sarah Jane Garnock; Third Appellant: Robert Leonard Luff; Fourth Appellant: Lynette Anne Luff; First Respondent: Stuart Alexander Black; Second Respondent: Vaughn Lee Chapman; Third Respondent: Andrew Philip Carter; Fourth Respondent: The Sheriff of New South Wales; Fifth Respondent: Marilyn Claire Smith
Jurisdiction
Australia
Judgment Date
21 December 2005
Procedural Posture
Appeal / Interlocutory Application for Injunction Pending Appeal
Outcome
Interlocutory injunction granted pending appeal; costs to be appellants' costs in appeal; expedited hearing ordered; procedural directions given.
Legal Topics
Interlocutory Injunction, Balance of Convenience, Title to Land, Priority of Interests
Civil Procedure Equity Real Property Interlocutory Injunction Balance of Convenience Title to Land Priority of Interests

Case Brief

Summary, issues, holding and outcome

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Parties

Bryce Lachlan Garnock

First Appellant

Sarah Jane Garnock

Second Appellant

Robert Leonard Luff

Third Appellant

Lynette Anne Luff

Fourth Appellant

Stuart Alexander Black

First Respondent

Vaughn Lee Chapman

Second Respondent

Andrew Philip Carter

Third Respondent

The Sheriff of New South Wales

Fourth Respondent

Marilyn Claire Smith

Fifth Respondent

Procedural Posture

Appeal / Interlocutory Application for Injunction Pending Appeal

Legal Issues

  1. 1 Whether an interlocutory injunction should be granted restraining execution of a writ for levy of property pending appeal
  2. 2 Whether the point of law on appeal was arguable or unarguable
  3. 3 How the balance of convenience should be assessed between the parties

Ratio Decidendi

Given the arguable grounds of appeal and the sufficient protection of the Respondents by the usual undertaking as to damages, the balance of convenience favours granting an interlocutory injunction restraining execution of the writ for levy pending appeal determination.

Court Disposition

Interlocutory injunction granted pending appeal; costs to be appellants' costs in appeal; expedited hearing ordered; procedural directions given.

Orders

  • First to Fourth Respondents restrained from executing registered Writ for Levy on Property AB718530 issued 23 August 2005 against land in Folios 2/594272, 109/658087 and 110/658088 (Wanaka) pending determination of appeal, upon usual undertaking by Appellants in accordance with rule 25.8 of the Uniform Civil...
  • Costs of this application be the Appellants' costs in this appeal.