Recovery of Possession of Property

Doctrine of fixtures in property law The doctrine of fixtures is applied to determine if an object is a fixture. 1 This common law provides that what is annexed to the land becomes part of the land, “quicquid plantatur solo, solo credit”, and adopts the character of real property. 2 For this to transpire all circumstances surrounding the annexation to the land are examined, including but not limited to the degree of annexation and the purpose of annexation. 3 Through this both objective and subjective intention are considered to determine if an object is a fixture or a chattel.

4 The first object, the rail track, is substantially annexed to the land simply because it is affixed to the “bare earth by means of iron pegs”. 5 Although not impossible to remove, as Hugh did when diverting it for the better use and enjoyment by his daughers, it still is annexed with the outlook that it would remain in place for the longer term. 6 In addition when the rail track was initially annexed it was constructed for transportation of the logged trees. This greatly improved the use of the land.

7 Even today it provides Hugh’s daughters with an improved use of the land enabling them to “travel around the property”8. This indicates that the rail tracks were intended to remain permanently for the better use and enjoyment of the land and is prima facie a fixture. 9 The next object “Grand Central” is best examined in two parts. Firstly as the systems which include the PABX telephone, air conditioning, plumbing and portable generator, and then as the building. All of the systems described would be significantly annexed with some more so than others.

Typically the air conditioning unit is annexed to ensure stability, the PABX telephone and plumbing is annexed to keep them in place, and the portable generator may only be lightly annexed if it is affixed at all. 10 Despite the degree of annexation all these systems are important services which provide individual functions to “Grand Central” to enable the user to 1 2 Webb & Stephenson (p. 19) Holland v Hodgson (1872) LR 7 CP 328 as cited in Webb & Stephenson (p. 19) 3 National Australia Bank v Blacker (2000) 104 FCR 288 at 296 as cited in Webb & Stephenson (p.24).

4 Reid v Smith (1905) 3 CLR 656 as cited in Webb & Stephenson (p. 21), N H Dunn Pty Ltd v L M Ericsson Pty Ltd (1979) 2 BPR 9241 at 9244-5; May v Ceedive Pty Limited (2006) NSWCA 369 as cited in Tooher & Dwyer (p. 11) 5 Holland v Hodgson, as cited in Webb & Stephenson (p. 20) 6 Australian Provincial Assurance Co Ltd v Coroneo (1938) SR (NSW) 700 at 712-3 as cited in Tooher & Dwyer (p. 11) 7 Kay’s Leasing Corp Pty Ltd v CSR Provident Fund Nominee Pty Ltd (1962 VR 429 at 433 as cited in Tooher & Dwyer (p.12).

8 Hobson v Gorringe (1897) 1 Ch 182 at 190; Leigh v Taylor (1902) AC 157 at 158 as cited in Tooher & Dwyer (p. 12) 9 Buckland v Butterfield (1820) 2 Brod & B 54; 129 ER 878 (CP) as cited in Webb & Stephenson (p. 20) 10 Australian Provincial Co Ltd v Coroneo as cited in Tooher & Dwyer (p. 12) better enjoy the building. 11 The removal of such systems would cause significant damage to “Grand Central” and without them the building’s value would decline. 12 However, if the systems were lightly attached, and also taking into consideration the poor state and repair of the building, then such systems could be a chattel.

13 In particular the portable generator which by name suggests it is easily removed and not necessarily a permanent attachment. Nevertheless the nature and intent for systems such as these services ensures that removal would result in loss of essestial character, value and substantial damage to the realty14. Consequently they are all fixtures of “Grand Central”. The “Grand Central” building, being wooden and resting by its own weight on brick foundations, remains unattached and is not a fixture.

15 However, the structure would be neither light, nor Consequently the mode of easily portable as it is not designed for easy transportation. annexation is not conclusive. 16 In this situation consideration must be given to the “intention test” whereby the purpose of annexation of the affixer is examined. 17. As a timber building the prevailing community practice and fashion of the day was for them to be affixed by their own weight. 18 Therefore the intention was for it to remain on the land as an improvement to become part of the real property. 19 Therefore “Grand Central” is also a fixture.

The final object is the “piles of rubbish” and they are also resting unattached on the ground. Unlike “Grand Central” these would be easily removed and transported if necessary making them temporary in nature. 20 In addition they are of no benefit or real value to the land and even if undergrowth has grown in the piles to embedd them in the ground they are not a fixture but a chattel. 21 In conclusion by applying the common law doctrine of fixtures it is likely that the piles of rubbish are a chattel, and the rail tracks and “Grand Central” along with the various systems are fixtures.

11 12 A-G (Cth) v RT Co Pty Ltd (No 2) (1957) 97 CLR 146 at 157-7 as cited in Tooher & Dwyer (p. 12) Hobson v Gorringe; Leigh v Taylor; Litz v National Australia Bank Ltd (1986) Qld Conv R 54-229 at 57,550 as cited in Tooher & Dwyer (p. 12) 13 Eon Metals NL v Commissioner of State Taxation (WA) (1991) 22 ATR 601 cited in Webb & Stephenson (p. 24) 14 Adam v Medhurst & Sons Pty Ltd (1929) 24 Tas LR 48 at 49; Spyer v Phillipson (1931) 2 Ch 183 at 209-10 as cited in Tooher & Dwyer (p. 11) 15 Hulme v Brigham (1943) KB 152 as cited in Webb & Stephenson (p.20), McMahon’s (Transport).

Pty Ltd v Ebbage (1999) 1 QD R 185 at 197 as cited in Tooher & Dwyer (p. 11) 16 Palumberi v Palumber (1986) NSW Conv R 55-287 at 56, 671; National Australia Bank v Blacker as cited in Webb & Stephenson (p. 24) 17 National Australia Bank v Blacker as cited in Tooher & Dwyer (p. 12) 18 Reid v Smith as cited in Webb & Stephenson (p. 21), National Dairies WA Ltd v Commissioner of State Revenue (2001) WASCA 112 as cited in Webb & Stephenson (p. 25) 19 Hobson v Gorringe; Leigh v Taylor as cited in Tooher & Dwyer (p.12).

20 Geita Sebea v Territory of Papua (1941) 67 CLR 544 as cited in Tooher and Dwyer (p. 13); Leigh v Taylor as cited in Webb & Stephenson (p. 20) 21 Hulme v Brigham (1943) KB 152 as cited in Webb & Stephenson (p. 20) Reference List Books ? ? ? Edgeworth B, Rossiter C J, Stone M A, 2004, Sackville & Neave: Property Law, 7th edition, LexisNexis Butterworths, NSW, Australia Tooher, J & Dwyer, B, 2008, Introduction to Property Law, 5th edition, LexisNexis Butterworths, NSW Australia Webb, E and Stephenson, M, 2009, Land Law. 3rd edition. LexisNexis Butterworths, Chatswood, NSW Australia Case List.

Adam v Medhurst & Sons Pty Ltd (1929) 24 Tas LR 48 at 49; A-G (Cth) v RT Co Pty Ltd (No 2) (1957) 97 CLR 146 at 157-7 Australian Provincial Assurance Co Ltd v Coroneo (1938) SR (NSW) 700 at 712-3 Buckland v Butterfield (1820) 2 Brod & B 54; 129 ER 878 (CP) Chapman v Strawbridge [1910] SALR 118 Eon Metals NL v Commissioner of State Taxation (WA) (1991) 22 ATR 601 Geita Sebea v Territory of Papua (1941) 67 CLR 544 Hellawell v Eastwood (1851) 6 Ex 295 Hobson v Gorringe (1897) 1 Ch 182 at 190; Holland v Hodgson (1872) LR 7 CP 328 Honywood v Honywood (1874) LR 18 Eq 306 Hulme v Brigham (1943) KB 152 Kay’s Leasing Corp Pty Ltd v CSR Provident Fund Nominee Pty Ltd (1962 VR 429 at 433 Leigh v Taylor (1902).

AC 157 at 158 Litz v National Australia Bank Ltd (1986) Qld Conv R 54-229 at 57,550 McMahon’s (Transport) Pty Ltd v Ebbage (1999) 1 QD R 185 at 197 May v Ceedive Pty Limited (2006) NSWCA 369 National Australia Bank v Blacker (2000) 104 FCR 288 at 296 National Dairies WA Ltd v Commissioner of State Revenue (2001) WASCA 112 N H Dunn Pty Ltd v L M Ericsson Pty Ltd (1979) 2 BPR 9241 at 9244-5 Palumberi v Palumber (1986) NSW Conv R 55-287 at 56, 671; Re Hart (1954) SASA 1 Reid v Smith (1905) 3 CLR 656 Spyer v Phillipson (1931) 2 Ch 183 at 209-10 Vane v Lord Barnard (1716) 2 Vern 738; 23 ER 1082 Reference List continued List of Statutes ? Convincing Act 1919 (NSW) Internet Resources ? Australian Government, Director of National Parks website available at http://www. anbg. gov. au/acacia/species/A-melanoxylon. html viewed on 30 March 2011.