Garnock v Black [2005] NSWSC 1217

In this case the new purchasers of a property were unable to register their title because a writ for the levy of the property was recorded on the Register. The purchasers sought a declaration that they were entitled to priority over any interest in the land the creditors held, an injunction to prevent the Sheriff from executing the writ, and an order that the recording of the writ be cancelled.

The judge determined the situation was governed in the first instance by s 105A(2) of the Real Property Act which states:

Where a writ is recorded … the Registrar-General shall not, during the protected period, register [any] dealing unless the writ is referred to in the dealing as if it were a prior encumbrance. 

The purchasers however raised s112(2) of the Civil Procedure Act:

A writ of execution does not affect the title to land acquired by a person in good faith and for valuable consideration unless, when the person acquires title, he or she has notice that such a writ has been delivered to the Sheriff and remains unexecuted.

Focussing on the word title in s112(2) the judge concluded that the purchasers, being unregistered, had not acquired title, and therefore s112(2) did not apply.

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