Property A Cases

La Salle Recreations v Canadian Camdex

'Permanent while it serves its purpose effectively'

Cujus est solum

13th century phrase credited to Accursius: "[for] whoever owns [the] soil, [it] is theirs all the way [up] to Heaven and [down] to Hell"

Saleeba v Wilke

A joint tenancy may be severed where all joint tenants agree to hold the estate as tenants in common Consideration for this is each party's agreements to relinquish their interests and the right of survivorship, in exchange for a share as tenant in common A formal binding contract is not necessary- as long as a common intention to sever can be ascertained

Bunyip Buildings v Gestetner

A lessee would not be obliged to repaint exterior paintwork which deteriorated over time (Terrell v Murray, but would be liable to repaint where consequential damage to timber was likely to flow from the deterioration

Hereditaments

Anything that can be passed on to an heir - Corporeal (things and land that can be seen) - Incorporeal (rights associated with property, such as an easement) as an easement)

JA McBeath Nominees v Jenkins Developments

Approved Pimms, with the qualification that refusal must not be designed to achieve a collateral purpose such as offering the proposed assignee a new lease at a much higher rent.

Mackie, K "Part Performance of Contracts - Recent Australian Developments"

Argues that the more lenient evidentiary approach of Steadman v Steadman has not been adopted, and will not be absent the High Court opting to do so.

Rankin v Danby

Assignee is liable for continuing breaches (usually of the covenant to repair the premises) even though part or all of the damage was caused by the original lessee or assignee

Marriot v Franlin

Changing the locks or making life unpleasant aren't necessarily sufficient for ouster Improvements - If the expenditure devalued the property, the co-owner who spent the money will be charged with the amount of the devaluation

Spyer v Phillipson

Facts: a lessee of a flat for 21 years installed antique panelling, ornamental chimney pieces, and fireplaces. No structural changes were made for the panelling but slight alterations were necessary for the chimney pieces and fireplaces. When the lessee died, his executors claimed the right to remove the panelling, chimney pieces and fireplaces as tenant's fixtures. Issue: Were they fixtures? Held: Common law allows tenants to remove trade, ornamental or domestic fixtures from the property.

Squire v Rogers

Facts: Squire made improvements to the land, provided an accommodation business on the land where he rented flats, rooms, caravans, equipment and provided maintenance services. Held:  He was liable to share the rent of the common property  He was awarded an allowance for the work he put in to earn the rent  He wasn't liable for profits made from his use and occupation such as the services he provided and the equipment he hired out Purpose: If the income is derived from a combination of rent paid by a third party and the skill, time and labour of one co-owner, the profits will be divisible in accordance with the co-owners proportionate interests in the property, but the co-owner who has contributed time and labour in earning that income will be entitled to an allowance Where one party improved the common property and these improvements are used to earn rent, the other co-owners are not entitled to receive a portion of the rent without first making allowance for the costs of improving the property

Scapinello v Scapinello

If there is an obligation to insure a property, a co-owner who pays insurance will be entitled to compensation

Secured Income Real Estate v St Martins Investments

Lessor need not give reasons, but failure to do so may lead to the inference the refusal was capricious

Davenport v Gregory

Marble statues and garden seats --> part of architectural design = fixture

Houlder v Gibbs

May take into account personality of the proposed assignee (including previous business experience and financial status), subject matter of the lease and proposed use of the premises.

Verrall v Nott

Relevant To: Accretion - Application to Torrens Land Issue: Could the landowner benefit from accretion even though it was the result of a rubble wall, and the land was part of the Torrens system? Held: Yes - the doctrine still applies to Torrens land where the boundary is ambulatory, and the contribution of man-made works is acceptable so long as they were not erected for the purposes of reclamation, and the build up was still natural and imperceptible.

LJP Investments v Howard Chia Investments

Relevant To: Airspace rights - Trespass, injunction considerations Issue: Was scaffolding that intruded over land sufficient to constitute a trespass, and if so, should an injunction be granted? Held: Yes, the scaffolding was low enough that it met the Bernstein test of 'a height as is necessary for the ordinary use and enjoyment of the land' (being low enough that it MAY interfere, with not actual interference necessary), and as such constituted an ongoing trespass. No consent was given, and no attempt made to negotiate until the very end of the hearing. Rejected the idea that the plaintiff's demands were excessive, as no evidence of the actual value of scaffolding was given, and concluded that mere commercial gain is not sufficient to justify ongoing use of another's property without consent. Aside: This seems different to the modern approach in Lang Parade, in light of the appropriate compensation under a statutory right of user.

Graham v KD Morris & Sons

Relevant To: Airspace rights - Trespass, injunction considerations Issue: Was the jib of a crane that was left to float freely and repeatedly swung over the plaintiff's property at about 80 feet off the ground sufficient to constitute a trespass, and if so, should an injunction be granted? And of what relevance was an offer of compensation made a week after the injunction was applied for? Held: While the offer of compensation was relevant, it was merely an offer to negotiate compensation, and made only in response to a legal action, not the earlier complaints. The defendant demonstrated a negligent or cavalier attitude, and ignored the fact that the law had, for over a decade, held that such cranes DID commit trespass (Woolerton and Wilson v Richard Costain). As such, any supposed hardship was self-inflicted, and any 'public necessity' was secondary to avoiding "condoning a clear breach by the defendant of the plaintiff's proprietary rights".

Woollerton and Wilson Ltd v Richard Costain Ltd

Relevant To: Airspace rights - Trespass, injunction considerations Issue: Was the jib of a crane that was left to float freely and repeatedly swung over the plaintiff's property sufficient to constitute a trespass, and if so, should an injunction be granted? Held: Yes, it was a trespass. However, as there was no more than nominal damage suffered, and they were willing to provide compensation, the injunction was granted but suspended to allow for completion of the building. Aside: Criticised in Jaggard v Sawyer, which held that an injunction ought to be granted if damages cannot possibly be adequate due to their nominal nature.

Bernstein of Leigh (Baron) v Skyviews

Relevant To: Airspace rights - scope Issue: Was an aerial photograph taken from a plane above the property sufficient interference to constitute a trespass/invasion of privacy? Held: No - an owner's rights in the airspace above their land is restricted to such height as is necessary for the ordinary use and enjoyment of the land and structures upon it. Above that point, they have no greater rights than any other member of the public. "The problem is to balance the rights of an owner to enjoy the use of his land against the rights of the general public to take advantage of all that science now offers in the use of air space. This balance is in my judgment best struck in our present society by restricting the rights of an owner in the air space above his land to such height as is necessary for the ordinary use and enjoyment of his land and the structures upon it, and declaring that above that height he has no greater rights in the air space than any other member of the public." Aside: obiter suggested a similar approach for mineral rights, but this was later rejected, at least in the UK

Kelsen v Imperial Tobacco Co

Relevant To: Airspace rights -Trespass, injunction considerations Issue: Was the lessee of a tobacconist's shop able to bring an action for trespass or nuisance against a sign that overhung 2 stories above his shop, up to 8 inches onto the property he leased? Held: Yes. On proper interpretation of the lease, the landlord had demised the airspace to the lessee in the lease, so any permission they granted could not function as a licence or easement (and in any event, no easement was found on the facts). Any implied licence given by not objecting to the sign for the first two years did not amount to an equitable estoppel, as no representation was ever made. As any interference with airspace of a reasonable distance above a property can constitute a trespass, this was therefore an ongoing trespass, and one where it would be difficult to adequately estimate the damages in terms of money, and - and as such an injunction was awarded.

Callow v Rupchev

Relevant To: Co-Ownership - breakdown of domestic relationship occupation rent Issue: Was a former de-facto partner and co-owner entitled to occupation rent from her former partner after moving out once their relationship broke down? Held: Yes, she was. While she was never technically ousted, recent case law had established a new class of exception allowing claims of occupation rent against former partners who choose to continue living in co-owned properties for the duration they stayed there, OR where circumstances make it unreasonable to expect the co-owners to continue living together under the same roof. Here no circumstances were present during the period her partner had not resided there, so she was limited to claiming occupation rent during the period he did. (similar approach to Re Thurgood)

Permanent Trustee Nominees v Coral Sea Resort Motel

Relevant To: Co-Ownership - severance via statutory sale/partition, effect of contractual pre-emption clause Issue: Was a management agreement giving a right of pre-emption and requiring 12 months notice before a co-owner could apply to the court for a statutory sale/partition valid? Held: Yes, it was. It did not oust the jurisdiction of the court, it merely required a condition be met before they could seek it. NB: This provision EXPLICITLY referenced sale or partition under the PLA - as such, the 'interest only' concern of Nullagine was irrelevant

Nullagine Investments v Western Australian Club

Relevant To: Co-Ownership - severance via statutory sale/partition, effect of contractual pre-emption clause Issue: Was an agreement that neither party would dispose of their interest without first offering to sell to the other valid, and if so, did it prohibit seeking statutory sale/partition without first making such an offer? Held: On the construction of the clause, the majority held that it applied only to disposition of individual interests/share (as it specified "its share or interest"), and not disposition of the entirety freehold in the land - as such, it did not prevent seeking a statutory sale/partition without first making such an offer. There was also debate as to how far the clause constituted an impermissible restraint on alienation, given that there was strong public policy for denying any covenant that completely excluded statutory sale/partition without providing for a contractual alternative - however, there was dispute over whether the clause did completely exclude it, or simply impose a precondition (with the majority finding it unnecessary to decide)

Brickwood v Young

Relevant To: Co-ownership - accounts for value of improvements Issue: Was an appellant who had only purchased a life estate (for the life of the seller) and an equitable tenancy in common (despite believing he had acquired the fee simple) able to make a claim for the value of improvements erected by the previous owner against the co-owners when the state resumed the land? Held: Yes, he could - he had paid for the land with the improvements, and as such that right to an account passed to him with the land. BUT only if he was willing to account to his co-owners for occupation rent for the period he spent in exclusive possession after the death of the seller (as per Teasdale). However, the modern approach is probably broader, since any equitable account (even a mere defensive equity such as this) can be claimed under PLA 42 during a partition.

McMahon v Public Curator

Relevant To: Co-ownership - measure of claim for improvements Issue: Could the estate of a deceased co-owner claim the costs incurred in building and repainting a house on the property on multiple occasions, and if so, what was the appropriate measure? And if so, was it required to account for occupation rent for the time spent in exclusive occupation of the small house on the property? Held: The appropriate measure was the lesser value of either the amount expended or the amount the improvements increased the value by. As the earlier occasions no longer contributed anything, they were thus worthless. However, insofar as the most recent repaint actually improved the value of the property, a claim could be bought. Occupation Rent was also refused, on the grounds that the house that he had exclusive possession of was very small and took up only a fraction of the property, and had been built exclusively at the cost of the deceased.

Re Stone

Relevant To: Co-ownership - murder of one joint tenant by another Issue: Was a joint tenant found guilty of the manslaughter of his wife, another joint tenant by reason of diminished capacity entitled to obtain the deceased's share? Held: No - the same public policy concerns remain, whether the death is a murder or manslaughter - the question is whether they are criminally liable under the Criminal Code, because if so, they cannot benefit from their criminal act.

Ryan v Dries

Relevant To: Co-ownership - occupation rent and mortgage payments Issue: Was a co-owner able to claim an account for mortgage repayments made exclusively by her, and if so, was she required to account for her occupation rent for that period she spent in exclusive possession? Held: In order to do equity between the two co-owners, it is necessary to recognise that one who has remained in exclusive occupation but born the entirety of mortgage repayments should be entitled to contribution for the mortgage repayments, but also charged with an amount for occupation, in order to reflect that exclusive use and occupation.

Kangas v Tsangaras

Relevant To: Co-ownership - occupation rent as set-off for interest on mortgage Issue: Could a co-owner offset their mortgage liabilities against the other co-owner (who had paid all the mortgage since he moved out) with occupation rent, despite no exclusion ever occurring? Held: Yes, he could offset the claim to the INTEREST on the mortgage repaid - but NOT on the actual instalments themselves (applying a similar approach to Teasdale v Sanderson)

Teasdale v Sanderson

Relevant To: Co-ownership - occupation rent as set-off for repairs and improvements Issue: Could occupation rent be charged of a co-owner who had not excluded his fellow co-owners, simply because he was seeking to recover for repairs and lasting improvements? Held: Equity will charge occupation rent to a co-owner who is claiming compensation for improvements and has been in exclusive possession if it is equitable

Leigh v Dickeson

Relevant To: Co-ownership - right to compensation for repairs/improvements Issue: Did one co-lessee have a right to compensation against another for repairs to the property, in light of the covenant to execute internal repairs under the lease? Held: No, they did not - in this instance, the repairs were mere ordinary repairs, and not necessary to prevent the house from falling into ruin, which would have been obligatory under the covenant to execute necessary internal repairs under the lease.

Re Allingham

Relevant To: Co-ownership - severance of a joint tenancy by sale Issue: When one joint tenant died after the contract of sale but before the final payment and distribution of the proceeds, did the other joint tenant obtain the entire amount via survivorship? Held: Yes, they did. The joint tenancy was not severed by a sale of the entire estate by the joint tenants, only by the final distribution of the funds.

Wright v Gibbons

Relevant To: Co-ownership - severance of a joint tenancy by transfer Issue: Could 2 joint tenants sever the joint tenancy without the third's involvement or agreement simply by transferring their personal interests to each other? Held: Yes, they could. The transfer succeeded in severing the joint tenancy into a tenancy in common. It was not a mere exchange of interests in a joint tenancy, but required alienating their interests in order to transfer them. Though it was somewhat confusing because the transfers occurred in a single document, rather than subsequently - to avoid confusion in the future, multiple transfers should be used.

Sprott v Harper

Relevant To: Co-ownership - severance of joint tenancy by agreement/mutual conduct Issue: Was a handwritten and signed "agreement for settlement of property and assets" document executed in the absence of solicitors sufficient to sever the joint tenancy by agreement, and if not, did it demonstrate sufficient mutual intention to do so via conduct - even though they had continued negotiations over specifics after signing the agreement in relation to obtaining a consent order? Held: Yes to both. Even if the agreement was not sufficiently definite as to exactly how the interest in the house should terminate (either buying out or selling), they were clearly splitting up their property and designating who was entitled to what, and acknowledged that the joint tenancy had ended. None of the later negotiations related to the house in any way.

Saleeba v Wilke

Relevant To: Co-ownership - severance of joint tenancy by agreement/mutual intention Issue: Was an ineffective acceptance of an expired offer to sever the joint tenancy sufficient to sever the joint tenancy by sale sufficient to nonetheless constitute mutual intention? Held: No, it did not. Ordinarily, when negotiations come to nothing, it will NOT be sufficient to constitute a course of dealings, particularly in light of section 59 of the LTA making it so easy to unilaterally sever a joint tenancy now.

Burgess v Rawnsley

Relevant To: Co-ownership - severance of joint tenancy by agreement/mutual intention Issue: Was on oral agreement between joint tenants that one would sell their share to another that was later renounced sufficient to sever the joint tenancy? Held: Yes, it had been severed in equity. Both parties had clearly agreed to a price and demonstrated an intention to sell at that point in time, and that should either be sufficient to constitute an agreement that severed the tenancy there and then, or alternatively, sufficient evidence of mutual intention that they no longer be joint tenants. Analogous to Sprott v Harper, looking at the 2nd and 3rd limbs of Williams v Hensman, but taking a particularly broad approach to 'course of dealings' to include unilateral acts that was rejected in Corin v Patton.

Frieze v Unger

Relevant To: Co-ownership - severance of joint tenancy by lease Issue: Was a lease granted by a joint tenant sufficient to sever the tenancy? Held: No, it was not - the interest granted was non-exclusive (the other joint tenant could still have entered/used/enjoyed the property) and as such, was not beyond that a joint tenant was capable of granting - however, the survivor WAS bound to honour the lease for the remainder of its duration.

Lyons v Lyons

Relevant To: Co-ownership - severance of joint tenancy by mortgage under torrens Issue: If one joint tenant mortgages their interest in the land, does that sever the joint tenancy, and if not, did the mortgage survive the death of that tenant? Held: No, it was not severed - the beneficial interest (and thus unity of interest) remained with the mortgagor, and as such the mortgagee's security interest lapsed upon the death of the tenant. Presumably if he had fallen behind on the mortgage and the mortgagee had exercised their interest during his lifetime, THAT would have been sufficient to sever it.

Lennon v Bell

Relevant To: Co-ownership - severance of joint tenancy by mutual conduct Issue: Was a prepared but unregistered s 59 form that had been sent to the other joint tenant sufficient to indicate a mutual desire to sever, particularly if coupled with ongoing negotiations in relation to the sale and division of the home? Held: No, it was not. The form was neither lodged nor registered, and the negotiations were ongoing - until they had concluded, there was no definite conduct from which to infer a mutual severance. Distinguished Sprott as there they had actually CONCLUDED the agreement.

Foregard v Shanahan

Relevant To: Co-ownership - types of claims, improvements vs contribution, statutory sale/partition Issue: Did the traditional equitable considerations apply in ordering a statutory sale/partition? And if so, could a co-owner claim as improvements insurance premiums, pest control expenses, mortgage payments, water and council rates, etc. Held: Yes, the traditional principles in relation to improvements were still relevant to formulating the principles to be adopted in relation to statutory partition. While none of the expenditure was actually an improvement (the insurance premiums and pest control were not required and did not actually increase the value of the property), because the co-owners were joint debtors for the mortgage, water, and council rates they could bring a claim for contribution for those expenses. However, the occupation fee could not exceed the value of any improvements absent an ouster.

Re Thurgood

Relevant To: Co-ownership and Ouster - 'reasonable to expect co-owner to occupy premises' Issue: Was it reasonable to expect the co-owner to continue to occupy the premises despite repeated threats to call the police if he returned? Held: No, it was not. As such, he was ousted.

Biviano v Natoli

Relevant To: Co-ownership and Ouster - domestic breakdown Issue: Was an AVO preventing one co-owner from residing in the premises sufficient to constitute an ouster, and if not, was the refusal to sell the property and split the proceeds, or resisting the statutory sale/partition by denying the co-owners interest? Held: The AVO was merely a statutory bar, not a legal wrong sufficient to constitute ouster. Similarly, merely ignoring a request for sale does not constitute a denial of title sufficient to constitute ouster. However, resisting the statutory sale/partition by claiming she owned the house entirely in her own right WAS sufficient, and from that point on she was liable for occupation rent. NB: More recent authority, Callow v Rupchev, seems to take a more lenient approach to failed domestic relationships Also - occupation rent will be less than half of market rent (Kangas v Tsangaras)

Ellaway v Lawson

Relevant To: Conditions - void for public policy (divorce - modern approach) Issue: Was a condition that the beneficiary not receive her bequest until she either divorces her husband, or her husband dies void on public policy grounds? Held: While the condition that the beneficiary obtain NO benefit unless she divorce was rather severe, and MAY HAVE potentially offended public policy in the past, the changing attitudes had weakened that policy, and the inclusion of the family provision clauses in the Succession Act allowed an application anyway. Ultimately though, it was held to fall within the Ramsay exception of being not significant /likely enough to offend public policy regardless.

Trustees of Church Property of Diocese of Newcastle v Ebbeck

Relevant To: Conditions - void for uncertainty/public policy (divorce) Issue: Was a condition that the testator's sons AND their spouses profess the protestant faith to the trustees satisfaction prior to their mother's life interest in the property ending void for either uncertainty or public policy? Held: While the condition was held to be sufficiently certain, as the sons had all married (or were engaged to) Roman Catholics, it created "opposition between the wife's religious beliefs and a serious temporal interest of her husband", providing an inducement to end marriages, contrary to the policy of the law to maintain them. As such, the estate would passed unencumbered by the voided condition. Aside: In light of changing public expectations and record high divorce rates, there is a strong argument that this case could be distinguished. (see discussion on changing attitudes to divorce in Ellaway v Lawson, or morality in Andrews v Parker)

Zapletal v Wright

Relevant To: Conditions - void on public policy (extramarital cohabitation). Differences - determinable vs conditional Issue: Was a condition that a woman only get a share in the property if she continue to reside with her partner (a married man who had left his wife) void due to public policy grounds? Held: Yes, it was - the condition was void due to immorality. As such, the share of the estate passed to her unencumbered. Had different language been used and it constituted a determinable estate instead, she would have gotten nothing.

Southern Centre of Theosophy v South Australia

Relevant To: Doctrine of Accretion - Application in Australia Issue: Was a receding lake bed that delineated a crown leasehold caused by a combination of silt build up and the construction of a channel connecting the lake to the ocean covered by the doctrine of accretion? Held: Yes, it was. The fact that it was a leasehold or that the lease was accompanied by a map was irrelevant and did not displace the doctrine, and neither did the fact that original boundary could still be ascertained. The fact that it was caused by windswept sand rather than the water itself was not relevant - it was still a natural cause.

AG of South Nigeria v John Holt

Relevant To: Doctrine of Accretion - Limitations Issue: Was land reclaimed by works to prevent erosion or incursion by the sea the property of the landholders or the Crown? And what impact was the 30-50 year acquiescence by the Crown in exerting its rights to build a public road? Held: The reclaimed land was the property of the Crown, as it was not the result of natural accretion, but rather reclamation works. However, they retained riparian/foreshore rights, despite now being inland properties.

Re Melden Homes

Relevant To: Encroachment - Compensation, Conduct of Parties Issue: What was the appropriate compensation for an encroaching house where the owners of the house had already offered to 'swap' portions of the property with their neighbour that were worth more than the encroached property, but been refused? Held: The appropriate compensation was held to be the land that was offered in trade already. Compensation is defined broadly, and need not consist of money, and the conduct of the parties was relevant in determining what kind and how much compensation should be given. Thus, while the adjacent owner may not have WANTED to swap, there was no reasonable grounds for them to refuse - indeed, if they sold the property afterwards and bought another in the shape they preferred, they would have made a tidy profit.

Tallon v Proprietors Metropolitan Towers

Relevant To: Encroachment - Maximum scope of remedy Issue: Was a decision by the first instance judge to move the boundary line BEYOND the encroachment, rather than merely transferring the land over which the encroachment extended beyond the power of the Act? Held: Yes, it was. There was no ambiguity in the remedial power of the Act, which only extended to the land over which the encroachment extends (the 'subject land'), and even if there were ambiguity it was preferable to adopt an interpretation that had the least impact on the rights of the rightful owners.

Ex Parte Van Achterberg

Relevant To: Encroachment - definition of building, key considerations Issue: Was a widemesh fence embedded in substantial concrete foundations 2 feet deep and 1 foot wide a building for the purposes of the PLA? And if so, should any orders be made, given that the adjacent owner wanted to use the land for business purposes, having just lost some of his own property on account of an encroachment? Held: Yes, the fence was substantial enough to be a building, but the loss of the fenced off area (which may limit access by trucks to the commercial premises at the back of the building) was outweighed by the adjacent owners right to use their own land for commercial purposes that could not be adequately compensated with money. As such, the only order made was a temporary easement for the life of the building overlapping the boundary.

Amatek v Googoorewon

Relevant To: Encroachment vs Mistake of Title Issue: Was a building mistakenly built on adjacent property able to benefit from the encroachment legislation? Held: No, it was not - an encroachment must actually cross the boundary of the properties.

Walsh v Lonsdale

Relevant To: Equitable Lease where specific performance available Issue: Was a lease to rent a mill for 7 years, with a term allowing the rent to be requested a year in advance, valid at equity despite not meeting the formality requirements to be valid at common law? Held: Yes, the lease was capable of specific performance - it was valid at equity on the same terms as it would have been at common law (despite the relative injustice this worked in this situation) - the inverse also held, in that the landlord couldn't simply have kicked him out despite not having a valid common law contract

Calverly v Green

Relevant To: Equitable presumption of tenancy in common for unequal contributors absent presumption of advancement Issue: Was there a presumption of a resulting trust (or was it merely rebutted by the presumption of advancement) between a de facto couple where the man paid 9k for the property, and they took out an 18k mortgage to cover the rest, but registered the property jointly? And if there was a presumption of advancement, was the fact that he only registered it jointly because it was required by the mortgagee sufficient to rebut it? And if there was a resulting trust, was it for the entire property, given that he repaid the entire mortgage? Held: The majority found there was a presumption of a resulting trust, ruling that a de facto relationship did not give rise to advancement. Even those who found advancement observed that it was rebutted by the circumstances with the mortgage. However the majority held that the beneficial interest is defined at the time of purchase - and he only paid 2/3rds of the purchase price, so only obtained 2/3rds of the beneficial interest. The fact that he paid off the entire mortgage that they were jointly liable for later was held to be irrelevant.

National Australia Bank v Blacker

Relevant To: Fixtures - No single test is sufficient Issue: Were the sprinkler heads, L-shaped valves, or electric pumps at the diary farm chattels (and thus property of the mortgagor) or fixtures (which thus passed to the mortgagee)? Held: They were chattels. The pumps and sprinkler heads rested on their own weight, and were not heavy enough to infer that they were intended to be permanently located there. Indeed, the pumps were on skids and designed to be towed by a tractor and to move with the river in the event of a flood/drought, and would take less than half an hour to detach from the pipes, as opposed to the other pumps that were left behind which were wired into the main electrical system. Similarly, the L-Shaped valves remained chattels, as despite being attached/installed as part of the irrigation system, they were inexpensive and could be readily removed and replaced without causing damage or inconvenience. Noted that that "the purpose of annexation and the degree of annexation will remain important considerations. However, the court should have regard to all the facts and circumstances" "No particular factor has primacy and each case depends on its own facts"

Australian Provincial Assurance Company v Coroneo

Relevant To: Fixtures - Presumption based on degree annexation Issue: Were chairs that were regularly moved between concerts/movies chattels or fixtures? And what about the other theatre equipment that was less mobile? Held: While the switchboard and generator were securely fastened and clearly intended to remain in place permanently, the chairs were frequently relocated and only fixed temporarily for specific occasions. The more secure the annexation, the more difficult it is to detach, and the greater injury such detachment would cause, the greater the inference that the object is a fixture.

Holland v Hodgson

Relevant To: Fixtures - Primary Test Issue: Were the looms attached via nails driven through holes in their feet to the floor of a mill fixtures (and thus property of the mortgagee) or chattels (and thus property of the administrator of the bankrupt estate) Held: The looms were fixtures, and as such, passed to the mortgagee via the mortgage. The appropriate test for identifying fixtures involved determining the intention of the annexation, looking at two factors - degree and object of annexation. Here, while they were only lightly annexed via nails (and attached to a steam engine for power), the purpose was to make the mill more useful as a mill, rather than to make the looms function better as looms by steadying them (as was argued).

May v Ceedive Pty Ltd

Relevant To: Fixtures - Subjective Test/Extrinsic Evidence Issue: Was a house apparently built by a miner on company land a fixture owned by the landowner, or a chattel owned by the current tenant, who had purchased it decades earlier? Held: While subjective intention CAN potentially be relevant to assist in answering the question of whether a chattel was intended to be affixed permanently, the subjective intention of the CURRENT tenant was irrelevant, as he was not the one who affixed it. Further, the house was securely affixed and had been for almost a century, with no evidence it was ever intended to be moved. As such, it was a fixture.

Spyer v Phillipson

Relevant To: Fixtures - Tenants fixtures v Landlords fixtures Issue: Was a fireplace, chimney, panelling etc. that had been installed without modifying the rooms themselves by a deceased tenant without the landlords consent a landlord's fixture (and thus property of the landlord) or one of the narrow classes of 'tenants fixtures' that can be removed during the lease? Held: The pieces were ornamental, going on top of the rooms and not designed to become a permanent part of them, and thus fit within the 'tenants fixtures' exception. Analogy was made to Leigh v Taylor, given the value of the panelling and peculiar result if it were interpreted to be intended to become the landlord's property. Other classes of exception include things affixed for the purposes of trade or ordinary domestic use.

Hobson v Gorringe

Relevant To: Fixtures - Test is objective Issue: Should an engine rented as part of a hire purchase agreement but affixed to the land be classified as a fixture, and thus go to the mortgagee, or retain the right of the hirer to recover it? Held: As it was affixed to the land, the engine ceased to be a chattel. Contractual terms to the contrary, the only relevant intention was that which were patent for all to see, and not that which might or might not exist in an agreement between two parties. Aside: If the mortgagee was aware of the terms of the agreement, a person equity against the mortgagee may well have arisen.

D'Eyncourt v Gregory

Relevant To: Fixtures - architectural design Issue: Were various furnishings, including vases, stone lions, and stone benches, chattels or fixtures? Held: They were all fixtures. This was based in no small part of the peculiar nature of the will, demonstrating a clear intention that the beneficiary get no benefit from the property unless they adhered to its terms, but also that they were part of the architectural design of the property, rather than mere ornaments.

Leigh v Taylor

Relevant To: Fixtures - attached artwork Issue: Was a valuable tapestry that was lightly affixed to a wall by a deceased life tenant a fixture or a chattel? Held: It was still a chattel. It was very lightly affixed, and it would be a peculiar result indeed if any tenant happened to nail any artwork to a wall, it was immediately assumed that they intended it to become property of the owner of the house. Further, it was the only way that the rather large tapestry could properly be enjoyed, meaning it was done primarily for the better enjoyment of the tapestry as artwork, rather than for the better enjoyment of the property.

Palumberi v Palumberi

Relevant To: Fixtures - household items Issue: Which, if any, of the following household items were fixtures: venetian blinds, a free standing linen cabinet, a television antenna, carpets, stove Held: Emphasised that object/purpose now seemed to be the most important consideration. Venetian blinds: made to measure specifically to fit the premises, but loosely attached and easy to remove without causing damage. Due to the very light annexation and function primarily as 'furnishings', not a fixture. Television antenna: attached to connecting plug/socket, but only held on by rubber U brackets. Designed for the better use and enjoyment of the television, not the household, and affixed only for that purpose. Not a fixture. Cabinet: free standing, with wall behind it painted as per the rest of the room - not a fixture (nothing presented to rebut presumption) Stove: free standing gas stove connected to gas supply. Replaced earlier stove - presumed that disposing of that earlier stove would otherwise have been tortious, and further that evidence established at the time both parties intended he would end up owning the house. Plus, as the only stove, and located in the kitchen, there is an expectation that it would be part of the house, designed to further the benefit/enjoyment of the house. As such, a fixture. Carpets: on runners, presumably nailed to the floor adjacent to the walls. Replaced earlier carpets - again, if chattel, replacing earlier carpets would have been tortious, and expected to own the house, so a fixture.

Belgrave Nominees v Barlin-Scott Airconditioning

Relevant To: Fixtures - lightly attached part of an important system Issue: Was an otherwise freestanding air conditioning chiller bolted into the water reticulation system of the building it was cooling a fixture or a chattel? Held: It was a fixture. Even slight affixing to the land is enough to raise the presumption, and the fact that there was an ongoing maintainence contract did not assist in rebutting it. Further, the system constituted an essential part of the building, being installed for the purpose of improving the building rather than improving its usefulness as a chiller.

Hawkins v Farley

Relevant To: Fixtures - prevailing community expectations Issue: Was a dishwasher installed in a recess amongst the kitchen benches/cupboards and connected to the plumbing and electrical systems a chattel or fixture? And what of a shed bolted into concrete pylons? Held: Yes, they were. The kitchen was designed to incorporate the dishwasher, which was not freestanding and mobile - the area it rested on was not tiled, and left an unsightly gap upon removal. This accorded with general community understandings. Similarly, the shed was a substantial structure, not designed for easy portability, and one that a purchaser would be very surprised to learn they were not acquiring.

Reid v Smith

Relevant To: Fixtures - prevailing community practice Issue: Were two Queenslander homes, attached by their own weight to stumps, a fixture or a chattel? Held: The fact that the house was not attached was merely a custom in Queensland, and could not even be readily ascertained. There was no evidence of any intention that it not become part of the land, but rather a contrary intention that the lessor would have the benefit of it (requiring that all buildings be insured), and it would have peculiar policy outcomes should all Queensland houses suddenly be treated as chattels that would go against the general legal and community understanding that a house is part of the land it is on. As such, any ordinary dwelling house on a town allotment in an inhabited town will almost inevitably be found to be a fixture.

Kay's Leasing v CSR Provident

Relevant To: Fixtures - sale of fixtures by mortgagee Issue: Could the mortgagee sell fixtures (heavy machinery) independently of the land when exercising its power of sale? Held: No, they could not. This ultimately turned on the requirement that the mortgagee exercise the powers granted by the mortgage strictly, with the power to sell the 'land or any part thereof' being read as not permitting it to sever and sell chattels separately.

Eon Metals v Commissioner of State Taxation

Relevant To: Fixtures - subjective intention Stands For: Subjective intention MAY be relevant, but it is objective intention this is of paramount significance. The ultimate fact to be proved is of the objective intention that ought to be imputed or presumed from the circumstances of the case.

Commissioner for Main Roads v North Shore Gas Co

Relevant To: Fixtures - utilities attached to land Issue: Did a utility company retain sufficient property in the buried gas pipes to constitute an interest in land, such as an easement, entitling them to additional compensation (beyond the costs of laying new pipes) for the reclamation of that land? Held: No, they did not. While they pipes were not fixtures (due to a clear statutory intention that the utility company retain the right to remove them), the right to place and remove gas pipes in property was NOT sufficient to actually constitute a proprietary interest.

MacIntosh v Lobel

Relevant To: Forfeiture - peaceable re-entry Issue: Could a lessor, having obtained a court order that the current lessee evacuate the premises within 28 days and deliver vacant possession that had been stayed pending an appeal, forcibly evict the current tenant the moment the stay was ended? Held: The entry was peacable, and involved a lawyer, 2 policemen, and a locksmith. The fact that the policemen 'humiliatingly' escorted the lessee to the police station when he declined to leave voluntarily. So long as no excessive force was used, carrying out the ejectment immediately rather than waiting for a court order was permitted, but it had to be peacable. He had no standing to maintain a trespass to land action (no longer being in legal possession of the land) and as the lessor had no direct control over the conduct of the police carrying out the ejectment/arrest, could not be held liable for any of their actions.

Glass v Kencakes

Relevant To: Forfeiture - requirement to remedy breach not necessary if not able to be remedied Issue: Was a notice to quit that did not specify a requirement to remedy the breach or make compensation still valid? (More Recently) Held: Despite being a negative covenant, here the actual breach was committed by a sub-tenant, and as such the head lessee was only liable if they knew of it and took no steps to stop it. Absent such knowledge, they DID have the opportunity to remedy it once it was bought to their attention, and as such, the notice was ineffective.

Rugby School v Tannahill

Relevant To: Forfeiture - requirement to remedy breach not necessary if not able to be remedied Issue: Was a notice to quit that did not specify a requirement to remedy the breach or make compensation still valid? (Traditionally) Held: Yes, it was - the breach in this instance (use of premises for illegal and immoral 'habitual prostitution') was not capable of remedy as it was a negative covenant - cannot go back in time and un-use them, so even if it was ceased, the damage had already been done.

Ex Parte Whelan

Relevant To: Forfeiture - unequivocal election to forfeit Issue: Was a notice that misrepresented the exact period the rent was due (1982-83, rather than 1983-84) still sufficient to meet the requirements under section 124? And was a statement that "we are affecting re-entry and are here to change the locks" sufficient to constitute an unequivocal re-entry? Held: Yes on both points. The notice told the lessees what they had to do, and a reading of the whole notice (despite mistaken labels) could not have confused them. And the clerk's statement combined with doing everything short of engaging in physical violence (which was threatened if they actually changed the lock) was sufficiently unequivocal - actual entry (when resisted) is not necessary to take advantage of forfeiture.

Moore v Ullcoats Mining

Relevant To: Forfeiture - unequivocal election to forfeit Issue: Was a writ seeking recovery of possession, mesne profits, an injunction to restrain working the mine, order to allow inspection, reciever, and damage sufficient to effect a forfeiture? Held: No, the claims were inconsistent with one another - the claim for an injunction was only consistent with them remaining in possession, and as such they could not recover possession

Re Leaver

Relevant To: Joint vs Common - words of severance Issue: Did the contradictory words of severance "equally, as a joint tenant" constitute a joint or common tenancy? Held: Looking to the specifics of the case, none of the beneficiaries were related - and it was generally much more convenient and fairer to find a tenancy in common over a joint tenancy. As such, they all became tenants in common holding equal shares.

Re Barbour

Relevant To: Joint vs Common - words of severance and convenience Issue: Did the contradictory words of severance "to share and share alike as joint tenants" constitute a joint or common tenancy? Held: Looking to the specifics of the case, where one of the beneficiaries had pre-deceased the testator and as such his share would have ended up split amongst 16 beneficiaries, and the land itself was only useful as a unified farming property, it was much more convenient to find a joint tenancy.

Re Rose

Relevant To: Joint vs Common - words of severance and convenience/unfairness Issue: Did the contradictory words of severance "in equal shares as joint tenants" constitute a joint or common tenancy? Held: Looking to the specifics of the case, all of the beneficiaries were minors - it was much more convenient and fairer to find a tenancy in common

In Re Albemarle St

Relevant To: Leases - Assignment and Covenants (PLA 53, 117, 118) Issue: Did the tenant's right to display advertising signs outside of the leased building run with the lease when it was assigned by the court? Held: Yes, it did - HOWEVER, that was only because of the specific statutory assignment, and not because it ran with or concerned the land.

Spencer's Case

Relevant To: Leases - Assignment and Covenants (PLA 53, 117, 118) Stands For: Traditional 16th century approach - if a lease is assigned, ONLY those covenants that relate to the land will run with it, mere personal covenants do not NB: Lessee's obligations may now pass with the reversion whether or not they touch and concern the land under 117, so long as they are contained in the lease.

Gumland v Duffy Bros

Relevant To: Leases - Assignment and Covenants (PLA 53, 117, 118), Expectation damages Issue: Was a term stating it was a fundamental obligation of the lessee to pay rent, coupled with another term stating that all of the covenants were essential terms, enough to allow for expectation damages after the lease was terminated for the breach of a covenant to pay rent not later than 7 days after the due date? (Because Woolworths unilaterally decided to start paying half their rent instead) And did the benefit of the covenant to pay rent under the lease pass with the reversion? Held: Yes, they were - the clause making the covenants essential terms rendered the obligation to pay rent an essential term, justifying loss of bargain damages. And the covenants did pass with the land, because it affected the VALUE of the land and was not personal.

Prudential Assurance v London Residuary Body

Relevant To: Leases - Certainty of Duration Issue: Was an indefinite tenancy that was determinable when the council decided the land was required for the purposes of widening the highway sufficiently certain, given that the right of reversion had been passed to Prudential Assurance rather than the Highway Authority. Held: Circumstances had served to render the contract indeterminable, as to hold that 1930 rent should be payable 60 years later, (30 pounds vs. the 10,000 pounds it had been valued at) because of a clause that neither party had any control of bringing about would make a mockery of the principle that a contract should be determinable. As such, it was reduced to a yearly tenancy, requiring only 6 months notice to quit the moment the Highway Authority ceased to be the landlord. "A grant for an uncertain term which takes the form of a yearly tenancy which cannot be determined by the landlord does not create a lease." Aside: Several lords criticised the requirement that a lease's duration be determinable from the outset as producing extraordinary results, such as in this instance.

Aussie Traveller v Marklea

Relevant To: Leases - Covenant for Quiet Enjoyment, Non-derogation from grant Issue: Was there an implied covenant of quiet enjoyment that Aussie Traveller could rely on to offset their losses while leasing the premises due to the constant noise and incursion of sawdust from the adjacent Top Flight premises, rented from the same landlord? Held: The obligations to not derogate from the grant and covenant of quiet enjoyment are implied by the common law in order to give business efficacy to a lease. The quiet enjoyment obligation applies not only to the lessor, but also to anyone who disturbs the quiet enjoyment of the lessee, provided the landlord is both aware of their actions and have the potential power to control them. The stricter "practical frustration" of the lease test proposed was not required, at least not for damages alone. In this instance, the noise level was in excess of the statutory requirements, and the dust (while perhaps no longer as big an issue as originally) combined to make the operations incompatible. Here, the landlord knew of the sawdust and potential noise problem before the new tenant even moved it, as evidenced by the dust extractor and more detailed 'nuisance clause' inserted into the lease - and because of that provision, they had the power to evict or threaten to do so in order to stop the nuisance - a power that was not exercised. This combination served to breach the covenant. Aside: Noted that the distinction between the covenant of quiet enjoyment and obligation not to derogate from the grant can fade to nothingness in circumstances such as this.

Fanigun v Woolworths

Relevant To: Leases - Covenant of Quiet Enjoyment breached by third parties Stands For: Must actually have the power to STOP the nuisance. If legal power to do so is unclear and would require litigation, then not in breach.

Peden v Bortolazzo

Relevant To: Leases - Covenant of Quiet Enjoyment/Prevent Nuisance Issue: Was the landlord under the same obligations to the neighbours of the rented premises as they would be to their own tenants in relation to preventing nuisances? Held: No, they are not. There is no foundation for holding that a landlord, in failing to evict a tenant causing a nuisance, should thereby be liable for the nuisance unless they explicitly adopt or authorise it.

Industrial Properties v Associated Electrical Industries

Relevant To: Leases - Estoppel in absence of legal title to grant lease Issue: Was a former lessee still obligated to abide by the lease obligations to a landlord who had no legal title to grant the freehold, but were merely granted equitable title by the trustees (to avoid stamp duty). Held: Yes, they were still bound by their obligations, particularly the covenant to repair, because even though the lease was not legally binding, they had benefited from undisturbed by any adverse claim or possibility thereof, and the misrepresentation was innocent, equity estopped them from disputing the title of their landlord.

Radaich v Smith

Relevant To: Leases - Exclusive Possession Issue: Was a deed granting a 5 year exclusive licence of a lock-up shop/milk bar a lease or a mere licence? Held: Looking at the terms and content of the deed, carrying on a milk-bar required exclusive possession, so it implicitly granted exclusive possession of the shop, this being the primary (though not necessarily entirely definitive) indicia of a lease. As such, the relationship was that of lessor and lessee. As such, the Fair Rents Board had jurisdiction to determine the fair rent of the premises.

Isaac v Hotel de Paris

Relevant To: Leases - Exclusive Possession Issue: Was exclusive possession and payment of rent for a nightclub that was supposed to be covered under a contract that was never concluded a lease or mere licence? Held: No - the intention of the parties was paramount, and their conduct demonstrated an intention that the possession/rent for the nightclub was not intended to be governed by a contract.

Progressive Mailing v Tabali

Relevant To: Leases - Expectation Damages upon forfeiture Issue: Could the owner of a factory premises leased for 5 years recover the full loss of bargain damages despite terminating via a contractual right after only 1 year? Held: Yes, he could - unlike Shevill, here the lessor demonstrated an intention to act in a manner substantially inconsistent with the obligations under the lease, deliberately refusing to pay rent - though they noted that in general, it will be rare that facts falling short of actually abandoning a lease would constitute repudiation.

Shevill v Builders Licencing Board

Relevant To: Leases - Expectation Damages upon forfeiture Issue: Was a lessee who had forfeited their lease and re-entered the premises under the breach of a covenant to pay rent entitled to expectation damages for lost profits under a contract suit? Held: No, they were not. The clause did not give any rights beyond the right to re-enter - it was not an essential term, and did not amount to repudiation or a fundamental breach.

Aldin v Latimer Clark, Muirhead, & Co

Relevant To: Leases - Non-derogation from grant Issue: Was the grant of a lease of property for the specific purpose of carrying on business as a timber merchant enough to create an obligation not to use the adjacent property (also owned by the same landlord) in a manner that blocked off the airflow, substantially interfering with the timber drying portion of the timber business? Held: Yes, there was an obligation not to derogate from the grant, which included the express purpose of drying timber. As such, while an injunction could not be awarded (the grant being revocable), damages for the interference could be.

JA McBeath Nominees v Jenkins Development Corporation

Relevant To: Leases - Refusal to grant consent to assign lease (PLA 121) Issue: Was a landlord allowed to refuse to assign a lease on the basis that he felt the proposed lessee may not be able to meet their obligations under the lease? And of what impact was a later offer, after the current lessee threatened to go to court over the unreasonableness of the refusal, to accept the new tenant in exchange for a substantially high rent? Held: Yes, that would have constituted a sufficiently reasonable grounds, as the appropriate test was whether "a reasonable man in the lessor's position might have regarded the proposed transaction as damaging to his property interests, even though some persons might take a different view", and that included concerns over the ability to re-let should the lessee default. HOWEVER, in light of the latter correspondence, the majority ultimately held that these were not the real reasons, which were based around procuring a financial advance - which is not sufficient. NB: This is a wider test than that endorsed in Houlder v Gibbs, which explicitly held that it had to relate to the lease or personality of the assignee, and refused to accept broader property interests.

Daventry Holdings v Bacalakis Hotels

Relevant To: Leases - Refusal to grant consent to assign lease (PLA 121) Issue: Was refusal to consent to the assign the lease as required in order to sell an ice-cream business shortly after the commencement of the lease unreasonable, in light of the acrimony between the landlord and tenant over the short duration and supposed 'landlords fixture'? Held: Yes, it was. While they did eventually consent during the hearing, claiming this was due to the discovery of figures detailing the success of the business, no request was made for them earlier on in the proceedings. However, in an ordinary case, withholding consent due to insufficient information to make an informed decision WOULD have been reasonable.

Proudfoot v Hart

Relevant To: Leases - Tenants obligation to keep premises in "good tenantable repair" (PLA 105-6) Issue: Was the tenant liable for all repairs at the end of a 3 year lease, including those from ordinary and reasonable wear and tear? Held: No, they were not. In determining what is "good tenantable repair", it is necessary to have regard to the age, character, and locality of the house, and the tenant likely to take it. Where the mere age of the house is the main cause of parts coming to the end of their existence, the tenant is not liable for them.

Haskell v Marlow

Relevant To: Leases - Tenants obligation to keep premises in "good tenantable repair" (PLA 105-6) Stands For: If tenant ignores something that needs prompt repair and consequential damages arise, they are liable for those

BCC v Council Club Inc

Relevant To: Leases - application of PLA 129 Stands For: QCA reluctance to find that anything other than an express agreement for a yearly tenancy would escape 129 (though this was obiter - they ultimately decided it on falling well within the traditional grounds, due to the annual payment of rent, but they rejected the inference of circumstances argument)

Chan v Cresdon

Relevant To: Leases - implied tenancy at will or equitable lease Issue: Was entry into possession and payment of rent sufficient to imply a common law tenancy despite the 5 lease never being registered? And if so, did the guarantee relating to obligations 'under this lease' apply to the obligation to pay rent? Held: Either the unregistered lease (being in writing and in registrable form, so not falling afoul of the equivalent of PLA 10-11 and 59, and thus capable of specific performance) amounted to an equitable lease, in which case the guarantee did not apply at all (since it related only to a legal lease), or the agreement constituted an unregistered lease which was converted to a tenancy at will under the equivalent to PLA 129

Cruse v Mount

Relevant To: Leases - not common law to maintain premises in good repair (cf PLA 106) Stands For: Traditional approach - no obligation to maintain premises or that they be fit for occupation implied by lease of unfurnished flat. Now overridden by both common law and statute (PLA 106).

Summers v Salford

Relevant To: Leases - obligation to maintain premises in good repair (PLA 106) Issue: Was an term requiring fitness for human habitation implied by statute breached by the only window in the bedroom being jammed? Held: Yes - as it was the ONLY window, this impaired ventilation, and therefore made it a breach of the implied undertaking, as an ordinary user could be injured naturally due to the state of the disrepair. "If the state of repair of a house is such that by ordinary user damage may naturally be caused to the occupier, either in respect of personal injury to life or limb or injury to health, then the house is not in all respects reasonably fit for human habitation."

O'Brien v Robinson

Relevant To: Leases - obligation to maintain premises in good repair (PLA 106) Issue: Was the landlord in breach of their obligation to maintain the premises in good repair when hard partying 3 years prior (that had since abated) was the cause of the damage, and there were no visual defects? Held: No - the covenant only arose once defects became patent and were made known to the landlord. As he had no knowledge that the ceiling was defective, he was not in breach of the covenant

Northern Sandblasting v Harris

Relevant To: Leases - obligation to maintain premises in good repair (PLA 106)/negligence Issue: Was the landlord liable for defective wiring that injured the tenant's daughter? Held: Yes, but only for negligence, NOT under the PLA.

Pimms v Tallow Chalders

Relevant To: Leases - refusal of assignment Stands For: Overrules Houlder v Gibbs - lessor's property interests ARE a legitimate consideration.

Turner v York Motors

Relevant To: Leases - tenancy at will vs. periodic tenancy Issue: Were rent was paid on a monthly basis under an oral agreement for a 2 year lease becoming ongoing with at least 3 months notice afterwards, was a notice to quit giving them one month to depart sufficient (as it would be for a tenancy at will or statutory tenancy at will) or inadequate (as it would be for the monthly tenancy, yearly tenancy, or lease with a 3 month notice term as alleged)? Held: The tenancy could not be implied to be yearly, as rent was paid on a monthly basis. However, that was sufficient to create a strong implication of a monthly tenancy where rent is being paid as part of an ongoing agreement, particularly since it was being paid in advance.

Ex parte Karynette

Relevant To: Mistake of Title - 'genuine' belief is subjective Issue: Was money paid towards the construction of a house on property that the buyer would be conveyed to them upon the conclusion of the contract sufficient to ground a mistaken belief? Held: Yes it was - they had a genuine belief that they had equitable title to the property, despite knowing they were not the registered proprietor. The test is subjective, requiring only that they really and truly, but mistakenly, believe they had some proprietary claim to the land.

Re Verdugo

Relevant To: Mistake of Title - Remedies Issue: What was the appropriate remedy for a lot mistakenly listed/sold as the adjacent lot that was purchased and then had the first stage of a luxury home built on it? And of what relevance was the original owner's attachment to the land (reminding him of his homeland of Yugoslavia)? Held: The owner was given a choice of 3 remedies within 28 days - he could either sell the land for approximately market value, pay a fair price for the improvements, or execute a mortgage for the value of the improvements if he could not afford to pay just yet. Neither party was at fault (only the real estate agent who misidentified/sold the property). The true owner's emotional attachment to the land did not appear to have been given any weight.

Newman v Powter

Relevant To: Mistake of Title - must be between improver and true owner Issue: Could a purchaser of land that they believed included a garage and boundary fence bring an action under mistake of title against the vendor of that land, rather than the owner of the adjacent land, given that these had been built there under a mistake of title? Held: No - section 198 was broad enough to allow the new owner to apply, but the nature of the relief under 197 clearly anticipates that the claim would be bought by the improver (or someone in possession of the improvements) against the true owner of the land on which the improvements occurred. This is a claim between a vendor and purchaser, and that is governed by ordinary contract law.

Brand v Chris Building

Relevant To: Mistake of Title - traditional approach Issue: Did the contractor who built a house on the wrong (adjacent) block of land have any remedy against the owner of that land to either charge for the house or demolish it and recover the materials? Held: No, they did not. The owner gave no consent to the construction and had no knowledge of it occurring until the house had been built. Outside of knowing silence and acquiescence to the construction, there can be no grounds for estoppel. NB: This "lack of remedy" has been rectified in Queensland under 195-8 of the PLA

Milirrpum v Nabalco Pty Ltd

Relevant To: Native Title, Indicia of Property Issue: Did the Pre-Mabo aboriginal claims have sufficient native title to preclude Nabalco mining bauxite on their ancestral lands? Held: No they did not - the doctrine of communal native title was rejected at this point in time, on the basis that the clan could not really "use and enjoy" the land, denied they had any right to exclude others, and denied their right to alienate it (except possibly to the crown), thus did not meet the indicia of ownership. "I think that property, in its many forms, generally implies the right to use or enjoy, the right to exclude others, and the right to alienate. I do not say that all these rights must co-exist before there can be a proprietary interest, or deny that each of them may be subject to qualifications. But by this standard I do not think that I can characterize the relationship of the clan to the land as proprietary."

South Coast Oils v Look Enterprises

Relevant To: Part Performance - Steadman adoption in Qld, Proving terms orally, Certainty considerations Issue: Was an oral agreement for a 5 year lease (with an option to renew for another 5) enforceable, on the basis of orders for service station equipment made in faith of the lease, despite a third party entering into possession of the property? Held: Yes, it could. The acts that had been done amounted to part performance. The contract was sufficiently certain - the commencement date, rent, and general site (though not specific borders - there was one area of contention) had all been agreed to, and even though the option to renew was likely unenforceable it did not cause it to fail. Macrossan J explicitly applied Steadman v Steadman 'on the probabilities' rather than 'unequivocal reference' test, finding it not inconsistent with Regent v Millett, and it was upheld by the QCA (albeit the appeal was not on part performance grounds but rather on certainty grounds)

One Stop Lighting v Lifestyle Property

Relevant To: Part Performance - relevant of acquisition of generic assets Issue: Was payment of rent and act of commissioning 'boats' to which light fittings could be attached on the leased premises sufficient acts of part performance? Held: No, it was not - the 'boats'/boxes were movable chattels and not required under the agreement. As such, they were not unequivocally referable to a contract relating to land, as they did not point to the existence of a lease in any way. NB: Actually seemed to apply a stricter test than Regent v Millet, relating to acts being required by the contract.

Spence v FCT

Relevant To: Partnership Assets - equitable presumption of tenancy in common Issue: Did a widow, as her husband's business partner and sole heir, have to pay tax on the full amount of proceeds from the sale of the partnerships land, or only half? Held: Despite the proceeds relating to the sale of property held by her and her husband as joint tenants, she nonetheless only had to pay half of the income that went to the partnership, which then devolved to her upon its winding up - as the remainder devolved to her deceased partner, and while tax DID have to be paid on it, it was by his estate before the money came to her via his will.

Abigail v Lapin

Relevant To: Priority of unregistered interests Stands For: Arming the wrongdoer with the ability to represent themselves as the legal owner, capable of dealing with the property, is sufficient to disentitle the earlier party in a Rice v Rice style conflict of equitable interests

J & H Just Holdings v Bank of NSW

Relevant To: Priority of unregistered interests. Relevance of failure to register or caveat Issue: Which of two mortgages should prevail? An earlier unregistered one backed by a certificate of title, or a later one that was made without requiring that duplicate certificate? Held: The earlier interest prevailed. It was entitled to rely on the practice of refusing to accept a mortgage for registration without production of the certificates of title. NB: This is one of the few instances where failure to caveat/register an interest will not be fatal - and even it is contentious, as demonstrated by the criticism in Callinan's obiter in Black v Garnock.

Stieper v Deviot

Relevant To: Relief against Forfeiture Issue: Could relief against forfeiture be granted upon payment of rent where the lessee had also treated the premises badly, storing dangerous and flammable substances preventing the lessor from obtaining insurance? Held: No - while it is a practice to grant relief of forfeiture for unpaid rent once that rent is paid, the court can refuse to grant relief where the lessee has acted in such a way which warrants his disqualification - he who comes to equity must do so with clean hands.

Central Estates v Woolgar

Relevant To: Relief against Forfeiture Issue: Was accidental acceptance of rent due to a clerical error enough to prevent a valid forfeiture due to constituting an election to pardon the breach, and if not, should relief be granted in light of the tenants age and poor health, the lack of evidence that the estate had suffered any damage, and the huge amount the tenant stood to lose from a forfeiture? Held: Yes, the demand for and acceptance of rent by their agents was a waiver against forfeiture. And in light of the exceptional circumstances, relief would nonetheless have been granted even were it not - despite the conviction for prostitution there.

Gill v Lewis

Relevant To: Relief against Forfeiture - payment of rent enough Issue: Could a lease to joint tenants be forfeited without obtaining judgement against both of them? And if so, was relief against forfeiture for non-payment of rent available once the arrears and costs had been paid? Held: No, the judgement was ineffective. BUT, even if had been effective, there were no exceptional circumstances to justify refusing relief on payment or tender of the amount due, so they would have been entitled to relief

Catanzariti v Whitehouse

Relevant To: Rights of Co-Owners to create a lease Issue: Could a husband who had separated from his wife create a lease over property they held as joint tenants without her knowledge or consent? And if so, what was the relevance of her finding out months later but doing nothing for 6 months before seeking to move back in herself? Held: Yes he could - but as he had not authority to deal with HER interest or let the premises on her behalf, only his share was bound. As the contract never mentioned her or claimed to include her, mere inaction was not enough to constitute ratification. As such, both the wife and the lessee had full rights to use and enjoy the whole estate, but had no right to prevent each other from doing so, leaving the wife liable for trespass for damage to the lessee's goods.

Bocardo SA v Star Energy

Relevant To: Scope of Title, rights beneath property Issue: Was it a trespass to land to lay pipes between 800 - 2800 feet below the plaintiff's property (for the purposes of a petroleum production licence), and if so, what was the appropriate measure of damages? Held: Yes, it was technically a trespass (the maxim cuius est solum still applies to the earth below, albeit not the sky above past the point required for ordinary use of the land) - but the scheme acquiring all petroleum rights was effectively a compulsory acquisition, and there was no intention in it that the landowner should benefit from a share of the value of the petroleum found. As such, the compensation should only relate to the actual damage to the land and its use and enjoyment. Here, there was no quantifiable physical loss, and no right to refuse to let them access the oil, so that loss appeared nominal. Aside: UK Case. Not binding - at best persuasive here.

Peldan v Anderson

Relevant To: Severance of a joint tenancy via bankruptcy Stands For: Not only does bankruptcy automatically sever a joint tenancy, but the registration of severance shortly before the bankruptcy, such as under s 59 of the LTA, is NOT a transaction that can be wound back.

Lang Parade Pty Ltd v Peluso

Relevant To: Statutory Right of User (PLA 180-1) Issue: What was the appropriate measure of compensation for the trespass of a crane jib and counterdeck during construction work made under PLA 180? Held: The appropriate measure is that which two reasonable parties negotiating to compensate the owner of the subservient tenement for any loss or disadvantage they would suffer - effectively the price a reasonable person would pay for the right of user. The actual value or savings of the easement are therefore immaterial when identifying the appropriate value. Thus, while the savings of the easement were valued at over a million dollars, all that did was establish that the grant was reasonably necessary, making it vastly preferable. No damage was established (beyond a tenant who left for unrelated reasons), and the Peluso's had originally consented. Construction of apartment blocks on Lang Parade were also held to be in the public interest, as no submissions were made opposing the development during the planning or construction stages. As such, the final amount awarded was $20,000 to factor in potential damage from accidents or possible loss of rental income, which (as it was less than Land Parade's offer) led to costs being awarded against the Peluso's.

Pannizutti v Trask

Relevant To: Statutory Sale/Partition under s 38 of PLA Issue: How should the new Statutory Sale/Partition section be applied in NSW? Held: The normal remedy is now sale and distribution of proceeds (in order that parties no longer need to continue to associate with one another, and are free to recoup their investment) - in order to warrant an order for partition, it is necessary that the party seeking it prove that it would be beneficial for the co-owners majority interest, and not merely themselves (unless they own a majority share), and even then, minority co-owners can nonetheless apply and try to persuade the court that it would be in the best interests of the majority.

Re Darby

Relevant To: Statutory Sale/Partition under s 38 of PLA Issue: Should cattle grazing land suitable for partition be partitioned or simply sold off, given the bad blood between the mother and daughter who co-own it? Held: Given their refusal to deal with each other than through their solicitors, it was more economically and emotionally beneficial NOT to leave them as neighbours, but to simply order the sale instead. The concern over water access was also a majority problem, especially if orders of access to one another's property would have to be made, given the level of animosity.

Andrews v Parker

Relevant To: Void for public policy - extramarital cohabitation (modern approach) Issue: Was a condition that a de factor partner transfer the house back to her partner (the original owner) if she returned to live with her husband void on public policy grounds? Held: No, it was not - they were already living together when the condition was made, and further the social judgements on matters of morality had shifted making past cases on similar matters less relevant.

Oates v Oates

Since unity of possession is a feature of all co-ownerships, each co-owner is entitled to occupy the whole of the premises in common with the other co-owners

Fejo v Northern Territory

Stands For: A grant of fee simple extinguishes native title

Haslam v Money for Living

Stands For: A lease for life is NOT of uncertain duration, falling into the same exception as a period lease. However, it was unnecessary to decide this, as it was more appropriately characterised as a freehold life tenancy, rather than a lease for life.

Yanner v Eaton

Stands For: Adaptations and changes to the traditional laws/customs or the mode in which they are exercised is fine (eg. traditional hunting in a motor boat, rather than a canoe). Any legislation that merely regulates the enjoyment of native title rights, such as legislative controls as to fishing or hunting, will NOT extinguish native title.

Malayan Credit v Chia-Mph

Stands For: Broader equitable presumption of tenancy in common - including where grantees hold premises for multiple individual business purposes. "Their Lordships do not accept that the cases in which joint tenants at law will be presumed to hold as tenants in common in equity are as rigidly circumscribed as the plaintiff asserts. Such cases are not necessarily limited to purchasers who contribute unequally, to co-mortgagees and to partners. There are other circumstances in which equity may infer that the beneficial interest is intended to be held by the grantees as tenants in common. In the opinion of their Lordships, one such case is where the grantees hold the premises for their several individual business purposes."

Maddison v Alderson

Stands For: Classic UK House of Lords adoption of part performance - must establish that the acts performed must be unequivocally and in their own nature referable to a contract of that type. Defendant is then 'charged upon the equities resulting from the acts'

Williams v Hensman

Stands For: Classic statement of the 3 traditional ways to severance of a joint tenancy - alienation, mutual agreement, or a course of dealings sufficient to intimate a mutual treatment as tenants in common.

Mabo v Queensland

Stands For: Common law recognition of native title, shifting full beneficial title of the crown to mere radical title

Henderson v Eason

Stands For: Exception to PLA 43 liability to account - if profits are earned by a co-owner working the land themselves, they may retain all those profits. If the income is derived from the use of the property by a third party, the income is to be divided between co-owners in proportion to their interests in the property: s 43(1) (Also see Hutchins v Hutchins)

Steadman v Steadman

Stands For: Expansion of Part Performance - need NOT be unequivocally referable to land if contract includes non-land components Issue: Was a payment of 100 pounds and the preparation/postage of a deed of transfer sufficient acts of part performance to establish a contract disposing of an interest in a matrimonial home, amongst others? Held: Yes, they were - the civil standard should be adopted here, and on the balance of probabilities, the acts pointed to a contract between the parties and were consistent with the oral agreement alleged. Further, even though part of the contract was disposing of an interest in land and the acts of part performance were not unequivocally referable to a contract relating to land, because the agreement was broader it was enough that they were referable to OTHER parts of the agreement (on the balance of probabilities). Also suggested that merely preparing and sending the transfer MAY be a sufficient act of part performance.

Wood Factor v Kiritos

Stands For: Leases - Expectation Damages upon forfeiture limited by duty to mitigate by attempting to re-lease

Western Australia v Ward

Stands For: Mining leases do not completely extinguish native title. Also noted that the definition in 223 is the exclusive statutory definition. The fact that it was based off the Mabo definition is irrelevant. Also broadened the test for extinguishment from 'clear and plain intent' to allow for an 'inconsistency of incidents' where rights were necessarily inconsistent with the continued existence of native title rights.

Elwes v Maw

Stands For: No common law right for agricultural tenants to remove fixtures. Now remedied by PLA 155-8

Port v Griffith

Stands For: Non-derogation from grant - mere economic competition not enough.

Cth v Yarmirr

Stands For: Offshore native rights such as fishing, hunting, domestic food gathering, and access to seas/seabeds can remain - but they cannot be exclusive, as that would conflict would the common law public rights of navigation and fishing.

Lysaught v Edwards

Stands For: Once a valid contract of sale is executed, the vendor becomes trustee for the purchaser, and they gain an equitable fee simple.

Thrift v Thrift

Stands For: One co-owner cannot object to another co-owner bringing a stranger onto property owned in co-ownership. Ex-husband could not object to his former mother in law moving in with his ex-wife's consent.

Regent v Millett

Stands For: Part Performance - giving/taking possession sufficient act, acts need only be unequivocally referable to, not explicitly required by contract, Issue: Was an oral contract with the wife's parents that they could have the house so long as the mortgage and deposit was paid off enforceable, given the following acts: 1. entering into possession of the house, 2. repairing/renovating the house, and 3. making mortgage repayments? Held: Yes, it was. Entry into possession alone is ordinarily a sufficient act of part performance, and as such it was unnecessary to even consider the additional acts UNLESS they can establish that act was referable to some other authority than the contract. The fact that taking possession was not actually required by the contract did not make it any less unequivocally referable to the existence of one.

Lake v Craddock

Stands For: Partnership Assets - equitable presumption of tenancy in common, as a fairer and more effective means of giving effect to the intention of partners to make profit for themselves and heirs.

Wik v Queensland

Stands For: Pastoral leases do not completely extinguish native title, not even on reversion (despite what Brennan said in Mabo)

Khoury v Khouri

Stands For: Recent (2006) NSWCA case criticising Steadman as incoherent and demonstrating a reluctance to accept it as part of the law of Australia without High Court adoption. (Criticism coming from Bryson JA)

Dinh v Dang

Stands For: Recent QSC strict application of Maddison v Alderson - Chesterman J refused to accept the mere payment of money as sufficient part performance to establish a mortgage.

In Re Robertson

Stands For: Right of survivorship is the most important aspect of a joint tenancy

Yorta Yorta v Victoria

Stands For: The "traditional" laws and customs must pre-date sovereignty, AND have been in continuous existence since sovereignty. Thus, the claimant society must have continued to exist since before sovereignty.

Tanwar Enterprises v Cauchi

Stands For: The equitable estate obtained upon the execution of a valid contract is dependent on the availability of specific performance - so if the purchaser is NOT ready and willing to perform their obligations, it fails

Hummelstad v Hicks

Stands for: Changing locks constitutes ouster if done with the intention of depriving access to a co-owner not contributing to the mortgage.

Fixtures Process

Tests originate from Holland v Hodgson. Question: Was it the objective intention that the object should become a fixture? Look to all facts and circumstances A) Degree of annexation i) Connection with land: onus of proof. Attached = prima facie fixture, Held by own weight = prima facie chattel ii) Mode/Extent of annexation - Is the object easily removable without disruption to itself or the building. B) Object/Purpose - Hobson v Gorringe, objective test of intention i) Time of annexation - permanent (or indefinite) or temporary ii) Better use - Better use of the object as an object (chattel) - any more affixing than was necessary? or for better use of the building/premises (fixture) - Enhance value or usefulness of the building? iii) Community standard - Reid v Smith iv) Hawkins v Farley - integral to the design

Registration of forfeiture

Under s 68 LTA, after lawfully re-entering and taking possession under the lease, the lessor may lodge a Form 14 General Request to register that re-entry. - the lessor must attach the Form 7 Notice to the Form 14. - the interest of the lessee ends on registration of the request for re-entry: s 68(2)

Quicquid plantatur solo

Whatever is attached to the land becomes part of the land (fixtures maxim)

Waiver

Whether the lessor has waived its right to forfeit is a question of fact: Matthews v Smallwood Waiver will occur if the lessor was aware of the breach and does "some unequivocal act recognising the continued existence of the lease": Matthews v Smallwood o requires actual knowledge of the breach, not a mere suspicion: McDrury v Luporini o failure to take action, even with knowledge of the breach, is not waiver: Perry v Davis Waiver can be express or implied: o express: lessor demands rent after the right to forfeit arises: Segal Securities v Thoseby o implied: lessor knows of breach but subsequently accepts rent regardless: Davenport v Smith Examples of waiver o acceptance of rent on a "without prejudice" basis where the rent was accepted with full knowledge of the existence of the breach: Segal Securities v Thoseby o a lessor's equivocal demand for possession subsequent to the breach: Moore v Ullcoats o instituting an action to recover rent which has accrued after the breach o granting a new lease to the lessee: Ward v Day

Lend Lease Development v Zemlicka

demolition works carried out around the leased premises rendered them less secure as a result of which 850 kangaroo skins were stolen from the lessee = derogation

Karaggianis v Malltown

lessor stopped the operation of escalators and reduced the lift service to the upper level of a building which was leased for use as a restaurant = derogation from grant

Pimms v Tallow Chandlers

lessor's property interests are a legitimate consideration in deciding whether or not to consent (thus a lessor who reasonably believes the proposed transaction would damage his ability to let the property or parts of the property in the future may withhold consent, even though another person might disagree)