Part 1 – Introductory Material

Concept	Key Cases	Issue	Principle	Ratio	Comments
Property and contractual rights	King v David Allen & Sons	Whether a contractual right to post billboards survived the leasing of the property	A contract creates a personal obligation (Lord Buckmaster LC)	Whatever rights created have been taken away by preventing them from being exercised. The landlord is liable in damages Note: licenses not enforceable against third parties	Three kinds of license exists: Bare License – no contract, can be revoked at will upon which licensee leaves at reasonable time (Wood v Leadbitter) Contractual license – from contract, bound by contract; damages breach depends on nature (Jarvis v Swan Tours). Can be broken by a BFPFVWN Proprietary License – cannot be revoked
Property and contractual rights	Georgeski v Owners Corporation	Whether a licensee can rely on the remedy of trespass	No possession exists for a licensee unless coupled with a profit a prendre. Mere physical presence or physical use does not suffice to invoke trespass	The plaintiff has no legal rights through the license except the permission to occupy which does not contemplate the physical exclusion of others Even if a profit a prendre existed it would only be relevant to injunctive relief if someone attempted to dismantle the jetty; rather than just enter it
Property Rights and the rights of persons	Moore v Regents of UC	Whether liability in conversion is preserved for unauthorized use of cells	Conversion liability should not be extended on grounds of policy	The protection of patient’s rights can be adequately covered by disclosure obligations, conversion would eclipse the physician’s innocent judgment as a strict liability tort Research would be hindered by restricting access to free and efficient raw materials The legislature should make this kind of decisions since they can reach an expert opinion
Property rights, reputation, personality and privacy	Victoria Park Racing and Recreation Grounds Co v Taylor	Whether a property right existed in a spectacle that was infringed by one commentating from above?	Though an occupier can exclude their neighbour’s view, it isn’t wrongful to overlook land or create artifices to destroy their privacy; no action can be maintained against them (Dixon J)	It can be discerned that freedom from view is not a legal or natural right. Interference with business does not equate with enjoyment of land and is not actionable without quasi-property rights (as in the US)	Henderson v Radio Corp [NSWSC] – well-known ballroom dancers can restrain distribution of record covers even if not used in the same industry Sykes v Fairfax – Person who invented certain column entitled to exclusive use because of reputation built Cf Victoria Park w/: Emcorp v ABC – Injunction restraining ABC from televising film by workers who trespassed (cf Church of Scient. V Transmedia)
	ABC v Lenah	Whether a third party who obtains footage from another who trespassed to obtain it is answerable to the trespassee.	A tension exists between privacy and free speech – the price of living in an organized society is observation by others. A fine line exists between ‘public’ and ‘private’ Trespass A nexus must exist between the trespasser’s tort and the appellant’s conscience. Only if the appellant was party to the trespass could an injunction be granted and then only if the activities filmed were private IFF the information obtained was confidential could breach of confidence provide a remedy. Otherwise, even if tortuously obtained, this doesn’t make it unconscientiously for a third party to publish	The line isn’t so easily drawn between ‘public and private; but without being complicit in the illegality there is no reason why the appellant can’t publish the information it has.

Property and the right to work

Dorman v Rogers

Whether a right to appeal existed on ‘property’ (right to work – a practicing certificate) allegedly worth over $2000

A right to appeal exists for claims more than $20,000

Gibbs CJ

No appeal lies – the right to practice isn’t capable of valuation
What is valuable is the person’s own earning capacity since he may earn even more without the practicing certificate

Stephen J

The distinction is that this right is incapable of transfer and its dependency on personal qualities; unlike other readily transferrable instruments
What is lost is not the monetary effect but the loss of personal qualities which is required to practice

In general right to work not a property right (Forbes v NSW Trotting – punter didn’t have a right to work at the races)

Davis v Commonwealth

Whether Commonwealth ‘s authority to commemorate the bicentenary extended to making offences of making symbols capable of being mistaken for them.

No, the exercise of legislative authority in this case would extend beyond commemoration to the attainment of objects as if they were independent of commemoration
The effect of this provision gives authority to regulate the use of everyday expressions; this is grossly disproportionate to the need to protect commemoration
The sections reach too far beyond their legitimate object

Part 2 – The Doctrine of Fixtures

Concept	Key Cases	Issue	Principle	Ratio	Comments
Fixtures in general	Belgrave Nominees v Barlin-Scott AC	Whether air-conditioning unit affixed by a complex process, bolted to the ground was a fixture or chattel.	If a chattel is fixed by means other than its own weight, prima facie it is a fixture The test of whether it is fixed depends on both Temporal intention (whether intended to be permanent or for a substantial as opposed to simply to hold it in place) and; The intention of the person fixing it at the time (gathered from the purpose/time at which it was fixed) If it cannot be removed without permanent damage this is a strong but not conclusive evidence of a fixture The material factor in discerning intention is manifested intention NOT the circumstances of a chance agreement	Here it is clear that the AC unit was intended to be a fixture; the complex nature of the fitting, the connection to pipes and a reticulation system support this conclusion Given that the onus of proof rested on the defendants, they failed to discharge it	A recent trend has moved away to considering the purpose or object of the annexation rather than the mode (Palumberi v Palumberi) A tension exists between applying the tests of subjective or objective consideration of the intention at the time of affixing Janice Gray suggests to look at both and consider the totality of the circumstances Note differing approaches to tapestries (Leigh v Taylor – can’t be enjoyed unless pinned, easily removed even though fixed by bolts; Re Whaley – fixtures designed to enhance Elizabethan character of room, Norton v Dashwood – can’t be removed without substantial damaging) Surrounding circumstances is vital: Seats regularly moved chattels (Australian Provincal v Coroneo) but not where premises once used as a cinema (Vaudeville Elec. Cinema v Muriset) Mining equipment are chattels considering the mine’s limited life, transportable nature of equipment and common practice to transfer (Eon Metals v Comm. Of State Taxation) Irrigation are chattels, irrigation rested on weight and valves could be removed (NAB v Blacker) but where not easily removed different (Litz v NAB) Houseboat moored to river not fixture since there was no annexation and it could be moved without injury to the boat or land (Chelsea Yacht v Pope) but not where secured on a permanent basis and used as a nightclub (Rudd v Cindarella Rockafellas)
	Hobson v Gorringe	Whether gas engine was chattel or fixture despite agreement that H could repossess if G defaulted on HPA	It was a fixture regardless of the HPA – the intention and circumstances surrounding the object of annexation were ‘patent for all to see’ and not just the circumstances of a chance arrangement But the contractual right in the HPA vests as an enforceable equitable interest in the party claiming the fixture
	May v Ceedive	Whether house was chattel given that C did not buy the land but only the house	Intention is to be determined objectively EXCEPT to the extent that it helps indicate such matters that the item intended to remain position and the function served by its annexation	The house is clearly fixed to land by means other than its own weight – the onus lies on the other to say that it was a chattel The intention of one buying the house is irrelevant; it is the intention of the person affixing the house to the land The house was clearly intended to remain there for an indefinite/substantial period The surrounding circumstances support thus and thus must be taken as being so despite any contrary subjective intentions

Tenant’s Fixtures

Tenant’s Fixtures

Bain v Brand – While lease in force, lessor is owner of the fixture subject to tenant’s right of removal any time before expiry (unless this right is restricted by the lease)
- D’Arcy v Burelly Investments: In leases of uncertain duration the tenant has reasonable time after termination to remove fixtures (can also be the case if the lease confers such a right)
- NZ Govt. Property Corp v HM&S – If tenant remains in possession by virtue of new tenancy, he is still entitled to remove fixtures. The ‘colour of right’ principle gives an equitable right to a tenant to remove fixtures after a tenancy if a...

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