Belgrave Nominees v Barlin-Scott Airconditioning

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Citation: Belgrave Nominees Pty Ltd v Barlin-Scott Airconditioning (Aust) Pty Ltd (1984) VR 947.

This information can be found in the Textbook: Edgeworth et all, Sackville and Neave's Property Law Cases and Materials, 8th edition, Lexis Nexis, 2008, pp. 62-5 [1.80].

Contents

Background facts

  • The Plaintiffs were owners of two buildings. Entered a contract with the Builder for renovation of their buildings.
  • The Builder subcontracted the Defendant to supply & install an air-conditioning plant.
  • The Builder was going into liquidation and stopped paying the Defendant, so the Defendant stopped his work.
  • The Plaintiff, upon realising the contract with the Builder has failed, contracted with the New Contractor to finish the job.
  • The New Contractor also subcontracted the Defendant.
  • However, shortly after, the Defendant, without the knowledge or consent of the Plaintiffs, removed the air-conditioning plant.

Arguments

  • The Plaintiff argued that the plant was a fixture. He sought a mandatory injunction compelling the Defendant to deliver the plant or damages for detention, conversion and trespass.
  • The Defendant claimed that there was insufficient annexation of the chillers to call them ‘fixtures’.

Legal issues

Judgement

  • According to Holland v Hodgson[1], the general rule is that if an article is annexed (attached) to land by something more than its own weight, it is a fixture, unless the intention shows it was intended 'all along' to be a chattel (and vice versa - if not attached, then chattel unless intention shows otherwise).
  • This established degree of annexation and intention as the things which the judge considers in determining whether something is a fixture.
    • Attachment or annexation gives rise to a presumption that the object is a fixture (and vice versa). Intention can then overpower this presumption, but the burden of proof lies with the party trying to disprove the presumption.
  • Intention 'all along' is hard to define, and it has been considered in many cases. In determining this intention, the court considers:[2]
    • (a) the nature of the chattel;
    • (b) the relation and situation of the two parties;
    • (c) the mode of annexation;
      • Secure fixing, such that the chattel cannot be removed without significant damage, provides strong, but not conclusive evidence that the chattel was intended to be a fixture.[3]
      • Insecure fixing likewise provides strong, but not conclusive evidence that the chattel was not intended to be a fixture.[4]
    • (d) the purpose for which the chattel was fixed.[5]
      • If the chattel has been proved to be fixed for a temporary purpose, it is not a fixture[6]
  • In this case, the plant was of an essential nature to the building, and was positioned and fitted in such a way as to form as essential part of the building. The units were sufficiently annexed to the buildings to make them fixtures.
  • Even slight fixing to the land is sufficient to raise the presumption that a chattel is a fixture so that the onus of proving otherwise rested upon the defendant who failed to discharge it.
  • In this case, an order for damages is not an adequate remedy. The Plaintiff may obtain a mandatory injunction compelling the defendant to complete the plant.

References

  1. (1872) LR 7 CP 328, 334-5
  2. Reid v Shaw (1906) 3 CLR 656
  3. Spyer v Phillipson [1931] 2 Ch 183, 209-10
  4. Australian Provincial Assurance Co Ltd v Coroneo (1938) 38 SR (NSW) 700, 712-13.
  5. Hobson v Gorringe [1897] 1 Ch 182: ‘purpose for which and the time during which the user in the fixed position is contemplated’.
  6. Vaudeville Electric Cinema Ltd v Muriset [1923] 2 Ch 74, 87
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