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Property law 200012 Moot court Oral submission

Vanessa Agu 17453720

May it please the court my name is Agu initial V appearing for the appellant Dundas Acceptance Proprietary Limited in the case. Dundas Acceptance Proprietary Limited asks the court to reverse the judgment of her honour Acting Justice Peseta in the supreme court of NSW common law division. Would your Honour like a summary of the facts? My client Dundas Ltd held a contract registered under the personal Properties Securities Act 2009 for all the equipment hired by Mr Mason in late Feb 2012 to be used on the property owned and leased by Rydalmere Holdings as a tenant. Upon bankruptcy Mr Masons hired item were removed from the property and sold to third party.

My submissions will deal with two main elements: The first being tests and established principles of common law in relation to whether an item is to considered a fixture or chattel. Focusing mainly on: The degree of annexation test Object of annexation test The subjective and objective intention of the affixer And finally the common law maxim in property law Quiciquid Plantatur solo, solo cedit My second submission will deal with providing justification as to why her honour Peseta may have erred in finding the items in question as fixtures. Focusing on the objective tests Whether the removal of the items would damage the property The initial reasoning of annexation And the intention of the affixer in relation to the temporality of the affixed items.

My first submission relies both on the basic rule of common law, that in the absence of any expressed terms, that would normally apply to an contract, the court examines and applies numerous different established tests and principles that have been vilified in common law. This is as per justice Blackburn in the case of Holland and Hodgson (1872). In supporting my submission I also submit the passage of Justice Perry in the case of Dixon Investments Co Pty Ltd v Woakwine Industries Pty Ltd [2002] taken at 51 There are no hard and fast rules which will give a clear answer as to whether or not the items in question have become fixtures I submit that the main principles and tests that have been taken as good law by this court and many others include the application of the common law maxim Quiciquid Plantatur solo, solo cedit though this has been said to be a gross over simplification of the state of law in Minshall v Lloyd (1937) and needs to be submitted in addition with other tests. One such other test that has been take in addition to the aforementioned common law maxim is the degree of annexation test pursuant to Jordan v May [1947] . This test umbrellas two legal presumptions in common law.

Property law 200012

Vanessa Agu 17453720

Firstly if chattel is attached to the land in anyway other than by its own weight prima facie it is a fixture, as established in May v Ceedive Pty Ltd [2006] in the NSW court of appeal. And secondly if a chattel rest on its own weight, even if it has embedded in the soil, prima facie it is still classified as chattel pursuant to Hump v Bygrave (1983). Another test which has been vilified by common law is the object of annexation test, established by Justice Williams in Re De Falbe [1901]. This requires the court to take in to consideration the grounds, based on facts, on which the items where affixed to the property. Justices, such as in the NSW supreme court case, McDonalds Australia Limited v Chief Commissioner of State Revenue (2005) have held that the object of annexation test holds a greater significance, than that of the degree of annexation test. This brings me to my second submission, providing justification as to why her honour Peseta may have erred in finding the items in question as fixtures. As stated above the object of annexation test may indeed hold a greater relevance in the determination of whether an item can be considered a fixture. And there a plethora of elements in the aforementioned test which, may it please your honour, should be considered by this court. In supporting my submission I submit the federal court of Australia case, Metal Manufactures Ltd v Federal Commission of Taxation (1999) which held a varied and non-exhaustive list, that have previously been taken in to consideration. Such as: Whether removal would destroy the property Whether the cost of removal would exceed the cost of items in question Whether the attachment was of the better enjoyment of the property or of the land on which had been affixed. The period of time the property was in position And the function served by the affixed property.

Several of the aforementioned factors are poignant to my client, and if it please the court, they should be taken under advisement in deciding whether to reverse the decision of her honour. Firstly, the purpose of annexation, I refer you honour to the high court decision of Attorney general (cth) v RT Ltd (No2) (1957) which provides that the sole purpose of annexing two printing presses was for steady operation and therefore was held not to constitute as a fixture in common law. I submit the similarity in this case and that of my client in which the main purpose of affixing the looms was the safety requirement to keep the looms steady avoiding the otherwise gradual movement due to the vibration caused by the operation of the machinery. Refer to line 45 of the facts which were submitted.

Furthermore the intention of the affixer at the time the items where to be in use and whether it be for temporary or for permanent use. I bring to your honours attention the statement of facts, that though Mr Mason carried a 25 year lease with my learned friends client, he only entered into a 5 year contract with my client indicating an intention of

Property law 200012

Vanessa Agu 17453720

temporary use of the equipment if he had not fallen into bankruptcy please refer to line 14. Though subjective intention hold little relevance, it has been known to be taken into account such as in the Court of Appeal Case in May v Ceedive [2006] Finally the damage or lack of damage in the disassembly of the equipment, I submit, should also be taken under advisement, may it please the court. This element has been held to be a valid factor in the Queensland Court of Appeal case of Farley v Hawkins [1997]

If this court finds that her honour Peseta has indeed erred in the finding of the items in question due to the points raised above, pursuant to the Personal Property Securities Act 2009 Cth, my learned friends client Rydalmere Holdings will have had no rights to sell or remove the items in question. May it please the court that concludes my submissions.