Black v Garnock

Facts

The respondent Garnock purchased land from a vendor who had a writ of execution registered against him on the NSW land titles register before the contract of sale was completed. The appellant Black, as judgment creditor, had lodged the writ prior to settlement. On completion, Garnock became registered proprietor and sought to have the writ removed, arguing that registration gave him indefeasible title free of the writ.

Issues

1. Whether a purchaser of Torrens title land who completes a contract of sale and becomes registered takes the land subject to a writ of execution that was registered on the title before completion. 2. Whether the indefeasibility provisions of the Real Property Act 1900 (NSW) protect a registered proprietor against a writ of execution lodged before the proprietor's own registration.

Holding

The High Court held that Garnock took the land subject to Black's writ of execution because the writ had been registered before Garnock's registration as proprietor, and the statutory scheme gave priority to the earlier registered interest.

Ratio decidendi

Under the Torrens system as implemented in New South Wales, a purchaser who completes a contract of sale and becomes registered as proprietor takes the land subject to a writ of execution that was duly registered on the title before the transfer was registered; the indefeasibility provisions do not extinguish a prior registered writ of execution in favour of a subsequently registered proprietor.

Obiter dicta

The Court noted that a purchaser who discovers a writ registered against the vendor before completion has available contractual and equitable remedies, including the right to rescind or delay completion, and that the result reinforces the importance of searching the register immediately before settlement.

Significance

Black v Garnock confirms that Torrens indefeasibility does not shield a purchaser from interests — including writs of execution — that are registered on the title before the purchaser's own registration, thereby emphasising the critical importance of last-minute pre-settlement searches in New South Wales conveyancing practice.

Key authorities

• Breskvar v Wall Breskvar v Wall (1971) 126 CLR 376applied
• Hillpalm Pty Ltd v Heaven's Door Pty Ltd Hillpalm Pty Ltd v Heaven's Door Pty Ltd (2004) 220 CLR 472considered
• Abigail v Lapin Abigail v Lapin (1934) 51 CLR 58considered
• Butler v Fairclough Butler v Fairclough (1917) 23 CLR 78cited