Conclusion
8 The position is governed, in my opinion, by s 105A(2) of the Real Property Act noted above. Having recorded the writ, Messrs Black, Chapman and Carter are entitled to the statutory procedures by which the Sheriff can effect a sale of the land and a purchaser from the Sheriff is entitled to have the transfer recorded: s 105B.
9 I accept the submission of Mr J Stoljar and Ms K Dawson, appearing for Messrs Black, Chapman and Carter, that s 43A of the Real Property Act is irrelevant to these proceedings. The "deemed" legal estate to which that section refers could only have been acquired when a "dealing registrable" was taken by the plaintiffs, which was after the recording of the writ. The plaintiffs in the present case have failed to establish that they have taken under a "dealing registrable". As pointed out by Mr Stoljar and Ms Dawson in their submissions, the transfer obtained by them is not registrable because it does not refer to the writ "as if it were a prior encumbrance" as required s 105A(2), because the writ had by then already been recorded.
10 Importantly, however, the recording of the writ does not create any interest in the land: s 105(1). Accordingly, there is no priority dispute between competing interests in land in the conventional sense.
11 I also accept the submission that s 43A of the Real Property Act only protects a purchaser who acquires land for value without notice. The plaintiffs will be deemed to be on notice of the writ if they fail to undertake searches that ought reasonably to be carried out. The plaintiffs' solicitors carried out an electronic search between 8:53 and 8:55 am on the day of settlement, but settlement did not occur until about 5 hours later. The evidence of a conveyancing expert, Mr N J Moses, is that the usual practice is to make a final search either simultaneously with settlement or as near as practically possible to the time of completion. He concluded that the actions of the plaintiffs' solicitor fell short of standard practice. It follows that the plaintiffs failed to undertake a search that ought reasonably to have been carried out. If they had done so then they would have discovered the recording of the writ.
12 I observe that the principal authorities on which the plaintiffs rely apply to a statutory regime that existed before the insertion of the present ss 105 to 105D into the Real Property Act. The outcome for which the plaintiffs contend would reintroduce the very mischief which these amendments were designed to meet, as explained by the Minister's second reading speech in September 1976:
I now come to the last, and almost certainly the most important of the reforms contained in this bill. At the time when I introduced the bill I felt it was better to leave a detailed explanation of the subject until the second-reading stage; accordingly I now offer that explanation. The provisions to which I refer are to be found in proposed sections 105 to 105D.
Since the commencement of the Real Property Act on 1st January 1863, it has generally been acknowledged that the machinery provided by that Act for giving effect to sales in execution has not worked effectively. The breakdown is largely due to a judicial decision in Coleman v. De Lissa in 1885 that, irrespective of the provisions of the Real Property Act, a transferee taking under a sale by the sheriff or other court official selling pursuant to a writ of execution acquired only the beneficial interest of the execution debtor, burdened by any unregistered interests which might exist. The result of this judicial ruling has proved disastrous. Upon such a sale, because potential purchasers are buying an asset whose value cannot be ascertained, the maximum bid is usually a couple of dollars, not sufficient to cover the advertisement and conduct of the sale. As a result the judgment creditor usually gets nothing of the amount owing to him; the judgment debtor loses ownership of the land without any reduction of the judgment debt; a purchaser from the sheriff or from the district court bailiff may get a windfall or more probably, if unregistered interests affect the land, gets nothing. The obvious solution is to provide, legislatively, that a purchaser at a sale in execution takes the estate or interest then appearing upon the register. The provisions of the bill are designed to implement this principle.
13 Finally, the language of s 105A(2) is plain and unambiguous. As Professor E I Sykes pointed out: "this provision supplies a special priority": Sykes & Walker; The Law of Securities, 5th ed, 1993, p 517. The subsection clearly means what it says and says what it means. I need only to refer to the well known statements in Cooper Brooks v Federal Commissioner of Taxation (1081) 147 CLR 297 at 304-305 per Gibbs J:
It is only by considering the meaning of the words used by the legislature that the court can ascertain its intention. And it is not unduly pedantic to begin with assumption that the words mean what they say. …
However, if the language of a statutory provision is clear and unambiguous, and is consistent with the other provisions of enactment, and can be intelligently applied to the subject-matter with which it deals, it must be given its ordinary and grammatical meaning, even if it leads to a result that may seem inconvenient or unjust.
14 In the present case the plaintiffs' dealing cannot be registered unless the writ is referred to in the dealing as a prior encumbrance.
15 It follows that the amended summons must be dismissed. It would also follow that the plaintiffs should pay the defendants' costs, but since costs have not been argued then that question will be reserved.