A high watermark case with regard to giving eﬀect to subjective intention.
Devonshire – Courts were far more conservative after this and did not put as much
weight on subjective intention.
This case is unlikely to be followed.
Don – probably motivated by fairness – value from ‘house’ added by the tenant; landlord
Now such a situation would be covered by
s 266, PLA 2007
– see below.
Legislative changes to items aﬃxed with respect to the
Section 266, Property Law Act 2007 – Removal of ﬁxtures by lessee
(1) A lessee may remove any trade, ornamental, or agricultural ﬁxture (except a lessor’s ﬁxture)
that the lessee has aﬃxed to any leased premises, but may only do so either—
(a) while the lessee is in lawful possession of the premises; or
(b) during a reasonable period after the lessee ceases to be in lawful possession of the
premises or that part of the premises to which the ﬁxture is aﬃxed.
(2) Subsection (1) applies unless, in relation to a lease, the lessor and lessee agree otherwise.
(3) A lessee who exercises a right to remove a ﬁxture must—
(a) cause as little damage as possible to the leased premises; and
(b) make good any damage caused; and
(c) compensate the lessor for any damage caused and not made good; and
(d) compensate the lessor for any other loss caused to the lessor (including indemnifying
the lessor against all claims and expenses for the removal or damage made or incurred by
the lessor under any superior lease).
(4) A lessee who has ceased to be in lawful possession of the premises is entitled, during the
reasonable period referred to in subsection (1)(b), to have access to the premises that is
reasonable and necessary for the purpose of—
(a) exercising any right to remove a ﬁxture; or
(b) carrying out any duty to make good any damage caused.
(5) In this section, lessor’s ﬁxture means a chattel that has been aﬃxed to the premises (for
example, a fence erected on the land), in such a manner that it becomes part of the structure of
a building or otherwise becomes integral to the land, by—
(a) the lessee; or
(b) a former lessee of the premises whose leasehold estate or interest was acquired by the
(c) a sublessee whose right to remove the ﬁxture has expired.
Australian Provincial Assurance Co v Coroneo
(1938) 38 SR
Deﬁnition of ﬁxture – “A ﬁxture is a thing once a chattel which has become in law land
through having been ﬁxed to land.”
Commonsense view – “If a thing has been securely ﬁxed, and in particular if it has been so
ﬁxed that it cannot be detached without substantial injury to the thing itself or to that to
which it is attached, this supplies strong but not necessarily conclusive evidence that a
permanent ﬁxing was intended”.
Intention and degree of annexation.
Objective “patent for all to see” approach.
Trust Bank Central Ltd v Southdown Properties Ltd
House being built, trade suppliers supply a joinery.
Contract had a Romalpa clause – supplier purported to retain the title to the joinery until
payment was made in full.
Construction ﬁnancing fails – the supplier comes and removes the items.
Although the joinery was originally delivered as chattels, they had been secured permanently to
the building – although the building as a whole was not complete.
Supplier unscrews and removed them.
Creditors argue that the supplier committed trespass to land because the joinery was a ﬁxture.
“The starting point is whether the material supplied by the second defendant was in law
still a chattel or whether it had become a ﬁxture.”
“The classical starting point for determining whether an item has become a ﬁxture or
remains a chattel is the judgment of
Holland v Hodgson
Apply the presumptions.
Purpose is objective
– citing Meredith CJ in
Stack v Eaton
“That the circumstances necessary to be shown to alter, the prima facie character
of the articles are circumstances which show the degree of annexation and object of
such annexation which are patent to all to see
“That the intention of the person aﬃxing the article to the soil is material only so far
as· it can be presumed from the degree and object of the annexation
On the facts.
“The degree of annexation in the instant case was integral and permanent.
Although it was possible to go in with screwdrivers and remove it ·without causing
fatal damage to the rest of the structure, the purpose of the annexation was to
create a fundamental part of the residence that was undoubtedly part of the land.
Something as basic as doors, windows and shutters, in the construction of a building
are so much part of the structure that it would bring an air of unreality to this facet
of the case to suggest that the joinery had not become a ﬁxture.”
A useful lead-in to the modern approach.