High Court of Australia

Black v Garnock [2007] HCA 31

230 CLR 438; 81 ALJR 1338; 237 ALR 1

1 Aug 2007

Case Number: S401/2006

Before

Gleeson CJ, Gummow, Hayne, Callinan, Crennan JJ

Catchwords

Conveyancing – Land titles under the Torrens system - Execution against land under the Torrens system - Recording of a writ for the levy of property in respect of land under the Real Property Act 1900 (NSW) ("the Act") - Appellants obtained judgment against the sixth respondent ("judgment debtor") - Judgment debtor was registered proprietor of land - Judgment debtor agreed to sell land to the first to fourth respondents ("purchasers") - Prior to settlement, a writ for the levy of property was recorded in respect of the land - Following settlement, Registrar-General refused to register transfers - Purchasers sought interlocutory injunction restraining appellants and Sheriff of NSW from executing the writ - Nature of interest of purchasers in land - Whether person claiming estate or interest not recorded in the Register and not preserved by the Act is entitled to an injunction to prevent execution of a writ for the levy of property.

Practice and procedure – Enforcement - Enforcement of judgment debt by way of writ for the levy of property in respect of land - Purchasers of property sought interlocutory injunction restraining appellants and Sheriff of NSW from executing writ - Whether person claiming estate or interest not recorded in the Register and not preserved by the Act is entitled to an injunction to prevent execution of writ.

Statutes – Interpretation - Meaning and effect of s 105A(2) of the Act - s 105A(2) prohibited the Registrar-General from registering, during a "protected period", a dealing that affected land subject to a writ for the levy of property - Whether person claiming estate or interest not recorded in the Register and not preserved by the Act is entitled to an injunction to prevent execution of writ.

Words and phrases – "judgment creditor", "judgment debtor", "protected period", "writ for the levy of property", "writ of execution".

Real Property Act 1900 (NSW) – ss 42, 43A, 74F, 74H, 105, 105A, 105B.

Civil Procedure Act 2005 (NSW) – ss 112, 113, 115.

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